401.000 Scope of Part.
This part presents basic policies and general information about the Department of Agriculture's (USDA) Acquisition Regulation, subsequently referred to as the AGAR. The AGAR is an integral part of the Federal Acquisition Regulations System.
(a) The AGAR provides for the codification and publication of uniform policies and procedures for acquisitions by contracting activities within USDA.
(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.
The AGAR and amendments thereto are issued under 5 U.S.C. 301 and 40 U.S.C. 486(c). The Senior Procurement Executive (SPE) has the delegated authority to promulgate Departmental acquisition regulations.
The FAR and AGAR apply to all USDA acquisitions of supplies and services (including construction) which obligate appropriated funds, unless otherwise specified in this chapter or excepted by law.
401.105-1 Publication and code arrangement.
(a) The AGAR is codified in the Code of Federal Regulations (CFR) as Chapter 4 of Title 48, Federal Acquisi-tion 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 CFR, and (3) loose-leaf form for distribution within USDA.
(c) Section 553(a)(2) of the Administrative Procedure Act, 5 U.S.C. 553, provides an exception from the standard public rulemaking procedures to the extent that the rule involves a matter relating 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. The AGAR has been promulgated and may be revised from time to time in accordance with the rulemaking procedures of the Administrative Procedure Act and OFPP Policy Letter 83-2.
401.105-2 Arrangement of regulations.
AGAR coverage parallels the FAR in format, arrangement, and numbering system. However, subdivisions below the section and subsection levels may not always correlate directly to FAR designated paragraphs and subparagraphs.
Copies of the AGAR published in CFR form may be purchased from the Superintendent of Documents, Government Printing Office, Washington, D.C. 20402. Requests should reference Chapter 4 of Title 48 CFR.
401.106 OMB approval under the Paperwork Reduction Act.
The following OMB control numbers apply to USDA solicitations and specified information collections within the AGAR:
|AGAR segment||OMB Control Number|
401.201 Maintenance of the FAR.
401.201-1 The two councils.
(a) USDA's representative on the Civilian Agency Acquisition Council is designated by the SPE.
(b) The Procurement Policy Division will coordinate proposed FAR revisions with interested contracting activities.
(a) The SPE, subject to the authorities in 401.103 and FAR 1.301, may issue and publish Departmental regulations, 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 USDA (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 beyond the internal operating procedures of the activity, or a significant cost or administrative impact on offerors or contractors. Internal guidance issued by contracting activities will not be published in the Federal Register. HCA's 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 chapter; and
(4) Are numbered and identified by use of alphabetical suffixes to the chapter number as follows:
4B Agricultural Research Service.
4C Farm Service Agency.
4D Rural Development (mission area).
4E Food Safety and Inspection Service.
4G Forest Service.
4I Natural Resources Conservation Service.
4K Food and Consumer Service.
4L Animal and Plant Health Inspection Service.
4N Office of Operations.
4R Office of Inspector General.
401.304 Agency control and compliance procedures.
(a) The AGAR System is under the direct oversight and control of the SPE, 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 SPE 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 unpublished internal guidance issued within the contracting activity to implement FAR or AGAR requirements. These procedures shall be subject to the review and approval by the SPE.
(d) The SPE 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 SPE for further action.
Subject to the policies of FAR subpart 1.3, certain USDA acquisition policies and procedures may be excluded from the AGAR under appropriately justified circumstances, such as:
(a) Subject matter which is effective for a period less than 12 months.
(b) Subject matter which is instituted on an experimental basis for a reasonable period.
(c) Acquisition procedures instituted on an interim basis to comply with the requirements of statute, regulation, Executive Order, OMB Circular, or OFPP Policy Letter.
401.371 AGAR Advisories.
The SPE may issue AGAR Advisories, consistent with the policies of the FAR and the AGAR, for the following purposes:
(a) to communicate Department-wide policy and/or procedural guidance to contracting activities;
(b) to delegate to procurement officials authority to make determinations or to take action to implement the policies of the FAR or the AGAR; and,
(c) to establish internal policy and procedures on an interim basis, prior to incorporation in the AGAR or in a Departmental Directive.
401.372 Departmental directives.
Subject to the policies of FAR 1.3, USDA from time to time may issue internal directives to establish procedures, standards, guidance, or methods of performing duties, functions, or operations. Such directives include Departmental Regulations (DR's), Departmental Notices, and Secretary's Memoranda.
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:
(a) A statement of the deviation desired, including identification of the specific paragraph number(s) of the FAR and AGAR;
(b) The reason why the deviation is considered necessary or would be in the best interest of the Government;
(c) If applicable, the name of the contractor and identification of the contract affected;
(d) A statement as to whether the deviation has been requested previously and, if so, circumstances of the previous request;
(e) A description of the intended effect of the deviation;
(f) A statement of the period of time for which the deviation is needed; and
(g) 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 SPE. 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 SPE. Deviations from the FAR shall not be made unless such action is authorized by the SPE after consultation with the Office of the 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 SPE for approval. The SPE may authorize class deviations from the FAR without consulting the Chairperson of the Civilian Agency Acquisition Council where urgency precludes consultation. The SPE shall 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 USDA's acquisition function is delegated through the Assistant Secretary for Administration to the SPE. 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 USDA'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 Department-unique standards and developing unique Department-wide standards.
(9) Certifying to the Secretary that the acquisition system meets approved standards.
(b) The SPE may delegate contracting authority to the Heads of Contracting Activities (HCA's) and the responsibility to manage their acquisition function.
(c) Unless prohibited by the FAR, the AGAR, or by other applicable statutes and regulations, the SPE may redelegate to HCA's the authority to make determinations as the agency head in order to implement the policies and procedures of the FAR. Such delegations shall be in writing, but need not be published.
(d) Unless prohibited by the FAR, the AGAR, or by other applicable statutes or regulations, each HCA may designate one individual from the contracting activity to carry out the functions of the HCA (HCAD). The HCAD may exercise all authority delegated to the HCA.
401.602 Contracting officers.
401.602-3 Ratification of unauthorized commitments.
(a) Definitions. "Ratification," as used in this section, means the signed, documented action taken by an authorized official to approve and sanction a previously unauthorized commitment.
"Unauthorized commitment," as used in this section, means an agreement made by a Government representative who lacked the authority to enter into a contract on behalf of the Government.
(b) Policy. The HCA may delegate ratification authority to the chief of the contracting office.
(c) Procedure. Whenever an official of the cognizant contracting activity who is authorized to ratify unauthorized commitments learns that a person or firm has assumed work as a result of an unauthorized commitment, that official shall take the following actions:
(1) Immediately inform any person who is performing work as aresult of an unauthorized commitment that the work is being performed at that person's risk;
(2) Inform the individual who made the unauthorized commitment of the seriousness of the act and the possible consequences;
(3) Ensure that the individual who made the unauthorized commitment furnishes all records and documents concerning the commitment and a complete, written statement of facts, including, but not limited to: a statement as to why a contracting officer was not used; why the vendor was selected and a list of sources considered; a description of work to be performed or products to be furnished; the estimated or agreed price; whether an appropriation is available for the work; and whether performance has begun. Under exceptional circumstances, such as when the individual who made the unauthorized commitment is no longer available to attest to the circumstances of the unauthorized commitment, the ratifying official may waive these requirements; and
(4) Decide whether ratification is proper and proceed as follows:
(i) If ratification is not justifiable, provide the cognizant program office, contracting office, and the unauthorized contractor with an explanation of the decision not to ratify.
(ii) If ratification appears adequately justified, ratify the action and retain or assign the contract to a successor contracting officer if necessary.
(iii) Maintain related approval, decisional, and background documents in the contract file for audit purposes.
(iv) Notify the cognizant program supervisor or line officer about the final disposition of the case; the notification may include a recommendation that the unauthorized commitment should be further considered a violation of USDA's employee conduct regulations.
401.603 Selection, appointment, and termination of appointment.
An HCA may delegate contracting authority to the extent authorized by the SPE 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.
402.000 Scope of part.
402.000 Scope of part.
As used throughout this chapter, the following words and terms are used as defined in this subpart unless the context in which they are used clearly requires a different meaning, or a different definition is prescribed for a particular part or portion of a part.
"Agency head" or "Head of the Agency" means the Secretary of Agriculture, Deputy Secretary, or the Assistant Secretary for Administration.
"Acquisition official" means an individual who has been delegated authority to manage or to exercise acquisition functions and responsibilities.
"Head of the contracting activity" (HCA) means the official who has overall responsibility for managing the contracting activity (i.e., Chief, Forest Service; Administrator, Agricultural Research Service; etc.), or the individual designated by such an official to carry out the functions of the HCA.
"Senior Procurement Executive" (SPE) means the agency official appointed as such by the head of the agency pursuant to Executive Order 12931. The Director, Procurement and Property Management, Policy Analysis and Coordination Center, has been designated as the USDA SPE.
403.101 Standards of Conduct.
403.101-3 Agency Regulations.
(a) The standards of conduct for USDA procurement officials are the uniform standards established by the Office of Government Ethics in 5 CFR Part 2635, Standards of Ethical Conduct for Employees of the Executive Branch, and FAR 3.104, Procurement Integrity.
(b) Procurement officials and other employees who require advice concerning the application of standards of conduct to any acquisition issue shall obtain ethics advisory opinions from ethics advisory officials in their agency personnel offices.
403.104 Procurement integrity.
403.104-5 Disclosure, protection, and marking of proprietary and source selection information.
For contracts and contract modifications in excess of $100,000, the contracting officer shall assure that the information listed in FAR 3.104-5(d)(2) is maintained in the contract file.
403.104-11 Processing violations or possible violations.
(a) The contracting officer shall forward information concerning any violation or possible violation of the Procurement Integrity Act (41 U.S.C. 423) to the chief of the contracting office.
(b) Heads of contracting activities (HCA's) or their designees who receive information concerning any violation or possible violation of the Act shall take action in accordance with FAR 3.104-11(b)(1), (2), (3), or (4).
403.203 Reporting suspected violations of the gratuities clause.
A suspected violation of the contract clause, FAR 52.203-3, Gratuities, shall be reported immediately to the cognizant contracting officer in writing, stating the circumstances surrounding the incident(s), the date(s), and names of all parties involved. The contracting officer shall review the report for completeness, add any additional information deemed necessary and a recommendation for action, and submit the report to the HCA.
403.204 Treatment of violations.
The HCA shall review the report and consult with the Offices of General Counsel and Inspector General to determine whether further action should be pursued. If it is found that the facts and circumstances warrant further action, the HCA shall give the contractora formal written notice which summarizes the reported violation and affords the contractor the opportunity to make a written or oral response within a reasonable, specified period after receipt of the notice. The notice shall be sent by certified mail with return receipt requested. Oral presentations shall follow the procedures outlined in FAR 3.204(b). The HCA shall furnish copies of any adverse determination to the contracting officer and the Department Debarring Officer for their subsequent considerations under FAR 3.204(c)(1) and (2), respectively.
403.303 Reporting suspected antitrust violations.
Contracting officers shall report the circumstances of suspected violations of antitrust laws to the Office of Inspector General in accordance with procedures in Departmental Regulations (1700 series).
403.409 Misrepresentations or violations of the Covenant Against Contingent Fees.
( a) A suspected misrepresentation or violation of the Covenant Against Contingent Fees shall be documented in writing by the contracting officer andreported immediately to the chief of the contracting office. The chief of the contracting office shall determine if a violation has occurred and report any violation to the Office of Inspector General. The chief of the contracting office shall take action in accordance with FAR 3.409(b).
(b) If the chief of the contracting office decides to refer the case to the Department of Justice, it should be referred through the Office of Inspector General with a copy of the report and referral submitted through the HCA to the Senior Procurement Executive.
403.502 Subcontractor kickbacks.
Contracting officers shall report the circumstances of suspected violations of the Anti-Kickback Act (41 U.S.C. 51-54) to the Office of Inspector General in accordance with procedures in Departmental Regulations (1700 series).
The HCA is authorized to except a contract from the policy in FAR 3.601.
403.603 Responsibilities of the contracting officer.
The contracting officer, when requesting authorization under 403.602, shall prepare a written determination and findings for the signature of the HCA. The determination shall document compliance with FAR 3.603, specifying the compelling reason(s) for award, and shall be placed in the contract file.
403.806 Processing suspected violations.
Suspected violations of the requirements of 31 U.S.C. 1352 shall be referred to the Office of Inspector General in accordance with procedures in Departmental Regulations (1700 series).
404.403 Responsibilities of contracting officers.
When a proposed solicitation is likely to require access to information classified by USDA, the contracting officer shall consult with the Director of Human Resources Management within the Policy Analysis and Coordination Center of the Office of Assistant Secretary for Administration, regarding the procedures that must be followed.
404.601 Record Requirements.
The Senior Procurement Executive (SPE) manages an automated procurement reporting system for USDA. This system provides the Federal Procurement Data System with all required contracting information.
404.602 Federal Procurement Data System.
Contracting activities shall report contract actions into the USDA Procurement Reporting System in accordance with the instructions issued or distributed by the SPE.
404.870 Document numbering system.
404.870-1 Purchase order/delivery order numbering system.
USDA purchasing activities shall number their purchase/ delivery orders in accordance with NFC Procedures Manual, "Purchase Orders," Title II, Section 5.1.
404.870-2 Contract numbering system.
Contracting offices shall assign an 8 to 12-digit number to all contracts. Contract numbers will be divided into four data elements and formatted as follows:
|Transaction Code||Ordering Office||Fiscal Year||Control Number|
|XX||XXXX||X||X to XXXXX|
(a) Transaction Code. This two-position code identifies the contract as being one of the following types:
(1) Code 50 - construction contract;
(2) Code 51 - [Reserved]
(3) Code 52 - tree planting/thinning contract;
(4) Code 53 - service contract;
(5) Code 54 - supply contract;
(6) Code 55 - aircraft rental (for fire-fighting purposes only) contract;
(7) Code 56 - personal equipment rental (rental of vehicular equipment for firefighting purposes only) contract;
(8) Code 57 - leasehold interest in real property contract.
(b) Ordering Office. This four-position code corresponds to the last four characters of the contracting office's GSA assigned FEDSTRIP requisitioner number.
(c) Fiscal Year. This one-position code corresponds to the last digit of the fiscal year in which the contract becomes effective.
(d) Control Number. This up-to-five position code (from one to five characters may be used) will be assigned by the contracting office. While contracts will generally be numbered consecutively (1 through 99999), contracting offices may assign codes in any manner of their choosing. Codes may not be repeated, however, unless one of the preceding data elements (transaction code, ordering office, or fiscal year) changes. Alpha characters as well as numerals may be used in any one or more of the five positions.
404.7001 Solicitation Provision.
The contracting officer shall insert the provision at 452.204-70, Inquiries, in all solicitations.