Sec. 2-1.5502

2-1.5502-1

2-1.5502-2

2-1.5502-3

2-1.5502-4 2-1.5502-5 2-1.5502-6

2-1.5503

2-1.5503-1

2-1.5503-2

2-1.408

2-1.5503-3

2-1.5503-6

2-1.5503-7

2-1.706-3

Government procurement).

Agency program direction and operation.

Review, withdrawal, or modification of set-asides or set-aside proposals.

Agency regulations governing ethical and other conduct and responsibilities of employees. Gifts, entertainments, and fa

vors.

Exceptions.

Outside employment and other
activities.

Use of Government property.
Misuse of information.

Other standards of ethics and
conduct.

Other matters regulated by law.
Officials not to benefit.

Covenant against contingent
fees.

Fees or kickbacks by subcontractors.

2-1.5503-4 Bribery of public officials and witnesses.

2-1.5503-5 Compensation to Members of Congress, officers, and others in matters affecting the Government.

Activities of officers and employees in claims against and other matters affecting the Government.

Acts affecting a personal financial interest.

2-1.5503-8 Voiding transactions in violation

of law.

Violations.

Subpart 2-1.56-Value Engineering

Policy.

2-1.5601

2-1.710-4 Review of subcontracting pro

2-1.5602

gram.

Value engineering incentives.

2-1.5602-3

Limitations.

Federal Property and Administrative Services Act of 1949, and the Federal Procurement Regulations (FPR).

§ 2-1.102-1 The Federal Aviation Act of 1958.

(a) The Federal Aviation Act of 1958-which established the Agencygrants the Administrator certain broad authorities to acquire real and personal property and services for Agency use. The Act empowers the Administrator to make appropriate expenditures:

(1) For rent and personal services at the seat of the Government and elsewhere (sec. 303 (a)).

ex

(2) For the acquisition (and change), operation, and maintenance of passenger automobiles and aircraft (sec. 303(a)).

(3) For the acquisition of real property or interest therein by purchase, condemnation, lease, or other method (sec. 303(c)).

(4) For the construction, improvement, or renovation of laboratories and other test facilities (sec. 303 (c)).

(5) For such other property as is necessary in performing his duties (sec. 303(a)).

(6) To make investigations and conduct studies pertaining to aeronautics (sec. 303 (a)).

(7) To provide necessary facilities and personnel for the regulation and protection of air traffic (sec. 307(b)).

(8) To acquire, establish, operate, maintain, and improve air navigation facilities (sec. 307(b)).

(9) To undertake or supervise such developmental work and service testing as tends to the creation of improved aircraft, aircraft engines, propellers, and appliances. This includes the right to purchase experimental equipment of these types which seem to offer special advantages to aeronautics (sec. 312(b)).

(10) To contract for the development, modification, testing, and evaluation of systems, procedures, facilities, and devices needed for safe and efficient navigation and traffic control of aviation.

(b) Section 303 (c) of the Act empowers the Administrator to sell, lease, or otherwise dispose of property.

§ 2-1.102-2 The Federal Property and Administrative Services Act of 1949. (a) The Federal Property and Administrative Services Act of 1949,

as

amended, sets forth procedures "to faciliate the procurement of property and services," and authorizes the Administrator, General Services Administration (GSA), to establish for the executive agencies an economical and efficient system for:

(1) The proceurement and supply of personal property and nonpersonal services, including such related functions as contracting, inspection, storage, issue, specifications, property identification and classification, transportation and traffic management, establishment of inventory levels, and establishment of forms and procedures.

(2) The utilization of available prop

erty. (3) The disposal of surplus property. (4) Records management.

(b) Section 201(a) of the Act empowers the Administrator, GSA, to prescribe appropriate policies and methods of procurement of personal property and nonpersonal services. The Federal Procurement Regulations are issued under the authority of the Act. The administrator of FAA has been authorized by the Administrator of GSA to issue such orders and directives deemed necessary to implement the Federal Procurement Regulations. Responsibility within the FAA for the development of such material is vested in the Installation and Material Service.

(c) Title III of the Act sets forth the procurement procedure to be followed upnder the Act. It requires that all purchases and contracts for property and services by executive agencies (e.g., FAA) be made by formal advertising as provided in section 303, unless they come within 1 of the 15 exceptions specified in section 302(c) (see Subpart 1-3.2 of this part for exceptions).

(d) Section 304 of Title III sets forth requirements of negotiated contracts. These provide for:

(1) Inclusion of a contract warranty against contingent fees for soliciting or obtaining the procurement.

(2) Prohibition against the cost-plusa-percentage-of-cost form of contract. (3) The applicability of cost-plusfixed-fee contracts.

(4) Statutory limits on estimated fees payable under such contracts.

(5) The right of the procurement office to inspect the plants and audit the

§ 2-1.103-1 Relation to Federal Procurement Regulations System.

The Federal Procurement Regulations System is designed to bring together, under this Title 41, Subtitle A of the Code of Federal Regulations, the procurement regulations applicable to all civilian agencies of the Government. Federal Procurement Regulations (FPR) are Chapter 1 of this title. This Chapter 2 is assigned for the procurement regulations of the Federal Aviation Agency (FAA). Chapters 3 through 49 of this title are for use by other agencies. Consequently, regulations applicable to FAA procurement consist of Chapters 1 and 2 of this Title 41. Material issued in the FAPR is numerically keyed to the corresponding sections of FPR as far as possible. The number system established by § 1-1.007-2 of this title is utilized.

Those parts of FAPR which contain basic and significant policies and procedures considered to be of interest to the general public are published in the daily issue of the FEDERAL REGISTER and, in cumulated form, in the Code of Federal Regulations. The Installation and Materiel Service, is responsible for determining what material shall be published, and for preparing submissions for publication. Copies of FAPR in FEDERAL REGISTER and Code of Federal Regulations form may be purchased by the public, at nominal cost, from the Superintendent of Documents, Government Printing Office, Washington, D.C. 20402. Subpart 2-1.2-Definition of Terms § 2-1.204 Head of the agency.

The FPR refers to the "head of the agency" or "agency head" as a level of approval. Agency Order OA P 1100.1, paragraph 802, authorizes the Associate Administrator for Development to act as agency head within the meaning of Title III of the Federal Property and Adminis

trative Services Act of 1949, as amended, except in connection with the Supersonic Transport Development program. Referrals to the Associate Administrator for Development (with the exception of National Airspace System Program Office, Office of Supersonic Transport Development, and Bureau of National Capital Airports) shall be made through the Director, Installation and Material Service.

§ 2-1.206 Head of the procuring activity.

The FPR refers to the "head of the procuring activity" as a level of review or approval. "Head of the procuring activity" means:

(a) For the Installation and Material Service, the Director, IMS.

(b) For each region, the Director of the respective region.

(c) For either center, the Director of the respective center.

(d) For the National Airspace System Program Office, the Director, NASPO.

(e) For the Office of Supersonic Transport Development, the Director, SST.

(f) For the Bureau of National Capital Airports, the Director, BNCA. § 2-1.250 Chief officer responsible for procurement.

The term "chief officer responsible for procurement" as used in the FPR shall be considered synonymous with the title "head of the procuring activity" (see § 2-1.206).

§ 2-1.251 Change order.

"Change order” means a written order signed by the contracting officer, directing the contractor to make changes which the Changes clause of the contract authorizes the contracting officer to order without the consent of the contractor.

§ 2-1.252 Supplemental agreement.

"Supplemental agreement" means any contract modification which is accomplished by mutual action of the parties. § 2-1.253 Shall.

"Shall" is imperative.

Subpart 2-1.3-General Policies

§ 2-1.302-3 Contracts between the Government and Government employees or business concerns substantially owned or controlled by Government employees.

(a) Procurement contracts between the Government and its employees or business organizations substantially owned or controlled by Government employees will not knowingly be entered into, except in those cases in which the needs of the Government cannot reasonably be otherwise supplied. The specific approval of the head of the procuring activity as defined in § 2-1.206 must be obtained for any such contract.

(b) Surplus personal property shall not be sold to persons known to be officers or employees of the Federal Government, except as specifically authorized by the head of the procuring activity as defined in § 2-1.206.

§ 2-1.307-4 Brand name products or equal.

(a) Purchase descriptions which contain reference to one or more brand name products followed by the words "or equal" may be used only in accordance with this § 2-1.307-4 §§ 1-1.307-4 through 1-1.307-9 of this title.

and

(b) The phrase "or equal" shall not be used to procure a particular "brand name" product under the guise of competitive procurement procedures to the exclusion of similar products of at least equal quality and performance that meet the actual needs. Use of a purchase description with the phrase "or equal" is not intended as a device to grant an advantage to particular manufacturers by favoring one product over other products or to substantiate a determination that no other manufacturer's products are equal in quality and performance to the products specifically named. Rejection of a low bid offering products as equal to the product named in the purchase description will be based on a determination that the products are in fact not the equal of the named product and do not meet the actual needs of the Government. Where a proper determination has been made that only one supplier can furnish the required item or items, the procurement must be accomplished by negotiation in accordance with Part 1-3 of this title.

(c) In a competitive procurement, before a contracting officer uses a purchase description containing an "or equal" standard, he shall either include the brand names of all products known to be "equal" or include a statement in the contract file, prior to solicitation of offers, describing efforts made to ascertain such brands and explaining the failure to name more than a single brand name in the purchase description. The cognizant Head of the Procuring Activity is responsible for assuring that each competitive procurement incorporating a "brand name or equal" standard be reviewed prior to solicitation with particular emphasis upon the following items:

(1) Eliminating the use of the "or equal" standard when it is not necessary (e.g., when the invitation for bid calls for a service which the contractor must provide in part by use of an air conditioner capable of performing a certain function, requiring use of a brand name air conditioner or equal is improper. Instead, the function which the air conditioner must be capable of performing should be described; or when a specification is used together with a brand name reference, and the specification itself, without reference to the brand name, adequately describes the Government's needs, the brand name reference should be omitted as being a requirement which serves no material purpose);

(2) Naming several acceptable brand name products and insuring that each is reasonably comparable with the other from the standpoint of quality and suitability for the Government's needs;

(3) Utilizing proper clauses and procedures as provided in § 1-1.307-6 of this title;

(4) Amplifying the requirement for furnishing with the bid descriptive material needed (i) to determine the equality of an offered "or equal" product, and (ii) to determine exactly what the bidder proposes to furnish, to make abundantly clear the information which said material must disclose (taking into account that where a bidder has previously furnished an acceptable equal item and offers to do so again the circumstances may justify omission of detailed descriptive data (40 Comp. Gen. 435); and

(5) Insuring that the characteristics described in § 1-1.307-4(b) of this title are stated in unambiguous terms, that they are generally descriptive of factors the Government considers essential, and

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that they are not so restrictive as to amount to a requirement for a single brand name product.

(d) Queries and requests to the contracting officer for clarification of brand name or equal standards from prospective offerors shall be coordinated with the appropriate technical and requirements personnel before reply. If an ambiguity exists in the solicitation, an appropriate clarifying amendment will be issued.

(e) The contracting officer must consider for award those bids offering products which differ from the brand name products referenced in the "brand name or equal" purchase description where he determines that the offered products are equal in all material respects to the products referenced. Bids shall not be rejected because of minor differences in design, construction, or features which do not affect the suitability of the products for their intended use.

(f) The contracting officer shall submit the description of an offered product to technical personnel for advice as to equivalency. The written advice of such personnel shall be given promptly upon the request therefor.

§ 2-1.310-10 Performance records.

(a) Contractor performance evaluation. Upon completion or termination of each contract exceeding $10,000 in value, a Contractor Performance Evaluation Form, FAA Form 3458 will be completed. The primary objective for evaluating and recording a contractor's performance is to provide a basis for determining the responsibility of the contractor in the award of future contracts.

(b) Source of information. The form shall be prepared by the contract specialist with the most intimate knowledge of the contractor's performance and it shall be approved by the contracting officer. Information in the contract files, as well as personal knowledge of the contractor's performance by the contract specialist, project manager, inspector, or other cognizant personnel should provide the basis for ratings. To assure equitable treatment for all contractors the form must be prepared factually and impartially. It should be clearly ascertained that delay in delivery or performance is the contractor's fault before charging charging him with responsibility for such delay. It is essential that the contractor specialist avail himself of all pertinent information before determining the appropriate ratings.

(c) Rating instructions. It is important that the ratings of "outstanding,” "satisfactory," "unsatisfactory," assigned to the contractor for the various items accurately portray the contractor's performance, as they will be considered in determining the contractor's responsibleness for future awards. When a "satisfactory" rating is assigned to an item, no additional information is required to support the rating. When either an "outstanding" or "unsatisfactory" rating is assigned to an item, the reasons for such a rating must be included in the space provided.

(1) Application of adjective ratings. A contractor shall be rated "satisfactory" on the various items unless his performance is clearly above or below contractual requirements or general business practices in which case the rating of "outstanding" or "unsatisfactory," respec- ́ tively, would apply. Below are examplesof instances where the various adjective ratings might be appropriate. These examples are provided solely for the purpose of achieving a degree of uniformity as to the interpretation of the adjective ratings and they do not include all matters which should be considered in rating each factor.

(i) Quality of end products or services-(a) Outstanding. Contractor provides a product or services of a quality above the contractual requirements, or on his own initiative, recommends ways and means of improving specifications with the result that a better end item is produced.

(b) Unsatisfactory. Contractor is held in default for failure to furnish an acceptable product, or contractor had to repeatedly take corrective action to produce an acceptable product.

(ii) Timeliness of performance—(a) Outstanding. Contractor delivers or performs substantially before the contract due date either on his own initiative or by request of the contracting officer; or contractor accepts a tight delivery schedule and performs on time.

(b) Unsatisfactory. Contractor is substantially late due to his own deficiencies in performing his contract or fails to perform the contract and is held in default.

(iii) Compliance with clauses-(a) Outstanding. Contractor maintained an active and effective subcontracting program which provided maximum assistance to small business concerns and concerns located in labor surplus areas.