427.104 General Guidance
As used in FAR Part 27, the agency head or agency head designee is the Senior Procurement Executive, except under FAR 27.306(a) and (b). Under FAR 27.306(a) and (b), the agency head is the Secretary without power of redelegation.
428.101 Bid Guarantees.
428.101-1 Policy on use.
The Senior Procurement Executive may authorize class waivers of the requirement to obtain bid guarantees.
428.106-6 Furnishing information.
Heads of contracting activities (HCA's) or their designees may furnish certified copies of bonds and the contracts for which they were given as provided by FAR 28.106-6(c). Requesters may be required to pay costs of certification and copying established by the Departmental Fee Schedule for records requests (7 CFR Part 1, subpart A, appendix A).
428.203 Acceptability of individual sureties.
Evidence of possible criminal or fraudulent activities by an individual surety shall be reported to the Office of Inspector General in accordance with Departmental Regulations (1700 series).
428.204 Alternatives in lieu of corporate or individual sureties.
HCA's shall establish procedures to ensure protection and conveyance of deposited securities of the types listed in FAR 28.204-1 through 28.204-3.
428.204-2 Certified or cashier's checks, bank drafts, money orders, or currency.
The contracting officer shall insert the provision at 452.228-70, Alternative Forms of Security, in a solicitation if a bond is required.
428.307 Insurance under cost-reimbursement contracts.
428.307-1 Group insurance plans.
Under cost-reimbursement contracts, before buying insurance under a group insurance plan, the contractor shall submit the plan to the contracting officer for review. During review, the contracting officer shall use all sources of information available, such as audits, industry practice, or other sources of information, to determine whether acceptance of the plan submitted would be in the Government's best interest.
428.310 Contract clause for work on a Government installation.
The contracting officer shall insert the clause at 452.228-71, Insurance Coverage, in solicitations and contracts which include the clause at FAR 52.228-5, Insurance - Work on a Government Installation. If property liability insurance is required, thecontracting officer shall use the clause with its Alternate I.
428.370 Government-owned vehicles operated in foreign countries.
USDA is authorized to obtain insurance to cover liability incurred by any of its employees while acting within the scope of their employment and operating a Government-owned vehicle in a foreign country. (7 U.S.C. 2262).
"ACO," as used in this part and in FAR Part 30, means "administrative contracting officer" as described in FAR Part 42.
430.201 Contract requirements.
The Senior Procurement Executive (SPE), without the authority to further redelegate, is authorized to request the Cost Accounting Standards Board to waive the application of the Cost Accounting Standards (CAS). Contracting officers shall prepare waiver requests in accordance with 48 CFR Chapter 99 (Appendix B, FAR loose-leaf edition), Subsection 9903.201-5, and submit them to the SPE through the head of the contracting activity (HCA).
430.202 Disclosure requirements.
430.202-2 Impracticality of submission.
(a) The Secretary, without the power to delegate, is authorized to determine, in accordance with FAR Part 99 (Appendix B), Subsection 9903.202-2, that the Disclosure Statement is impractical to secure and to authorize award without obtaining the Disclosure Statement.
(b) The request for this determination is to be prepared in accordance with FAR Part 99 (Appendix B), Subsection 9903.202-2 and is to contain the proposed report to the CASB.
(c) Requests for a determination under paragraph (a) of this section shall be prepared by the contracting officer and submitted through the HCA to the SPE for concurrence and submittal to the Secretary.
430.202-8 Subcontractor Disclosure Statements.
(a) The Secretary, without the power to redelegate, is authorized to determine that the Disclosure Statement for a subcontractor is impractical to secure and to authorize award without obtaining the Disclosure Statement.
(b) Requests for this determination are to be prepared and forwarded as described in 430.202-2.
(a) The SPE is designated as the official authorized to give advance approval of an individual deviation concerning cost principles.
(b) The SPE is designated as the official authorized to give advance approval of an class deviation concerning cost principles after coordination with the Civilian Agency Acquisition Council.
(c) Requests for advance approval of class deviations concerning cost principles must be submitted to the SPE through the HCA.
The "agency contract finance office" is the office, other than the office of the requisitioner, providing funding or performing funding record keeping for the contract action.
"Responsible fiscal authority" is that officer in the agency contract finance office with the responsibility to ensure that adequate funds are available and usable for the intended purpose.
432.003 Simplified acquisition procedures financing.
(a) The chief of the contracting office may approve contract financing on a contract to be entered under the simplified acquisition procedures. Class approvals may not be made.
(b) The signed approval must contain the supporting rationale for the action and an estimate of the cost and/or risk to the government.
432.006 Reduction or suspension of contract payments upon finding of fraud.
(a) The USDA "remedy coordination official" (RCO) is the Assistant Secretary for Administration.
(b) For the purposes of this part, "head of the agency" means, exclusively, the Secretary or the Deputy Secretary.
When a contracting officer suspects that a request for advance, partial, or progress payment is based on fraud, the request shall be referred directly to the Office of Inspector General (OIG) in accordance with their instructions. A copy of the referral shall be submitted through the head of the contracting activity (HCA) to the Senior Procurement Executive (SPE).
(a) Immediately upon submittal of the referral described in 432.006-3, the HCA and the contracting officer shall confer with the SPE and representatives of the OIG to discuss the potential for reduction or suspension of further payments based on the considerations listed in FAR 32.006-4(d)(1) through (5).
(b) The SPE will determine whether the contractor has contracts with other Departments or contracting activities and will involve them, as necessary, in the decision making process.
(c) The OIG will determine the need for and the extent of an investigation.
(d) Immediately upon completion of the OIG investigation (or, if deemed necessary by the OIG and the SPE, before completion of the investigation) the SPE, in coordination with the HCA, the contracting officer, and the OIG, shall make a report on the action to the RCO.
(e) Upon receipt of the report, the RCO will submit a recommendation to the Secretary.
(f) Upon receipt of the RCO's report the Secretary will:
(1) notify the contractor in writing, allowing 30 calendar days after receipt of the notice, that the contractor may submit in writing information and arguments in opposition to the recommendation; and
(2) consider the RCO's recommendation, the SPE's report, the response of the contractor, and any other relevant information in order to make an appropriate final determination.
(g) This determination will be provided to the contractor and to the SPE for distribution to the agencies involved and for appropriate action under the determination.
(h) The determination and the supporting documentation will be placed in the contract file(s) and a copy will be maintained by the SPE.
(i) The contracting officer will advise the SPE of the actual date of the reduction or suspension action.
(j) Not later than 150 calendar days after the actual date of the reduction or suspension action, the SPE will prepare for the RCO a review of the agency head's determination, and will propose a recommendation from the RCO to the agency head as to whether the reduction or suspension action should continue. The RCO will submit the recommendation (including a recommendation for the time period of a follow up review) to the agency head. This recommendation will be considered by the Secretary and handled as a final action described in paragraph (f) of this section.
(k) The contract may not be closed nor final payment made prior to a final determination by the Secretary.
The annual report required by FAR 32.006-5 is to be prepared by the SPE and to be submitted to the Secretary within 90 calendar days after the end of the fiscal year. When signed by the Secretary, the report is to be maintained by the SPE.
432.102 Description of contract financing methods.
Progress payments based on a percentage or stage of completion are authorized for use as a payment method under USDA contracts or subcontracts for construction, alteration or repair, and shipbuilding and conversion. Such payments also are authorized for service contracts, if the contracting officer determines that progress payments based on costs are not practicable and adequate safeguards are provided to administer progress payments based on a percentage or stage of completion. For all other contracts, progress payment provisions shall be based on costs except that the HCA may authorize progress payments based on a percentage or stage of completion on a case-by- case basis. Each authorization by the HCA shall include a determination and finding that progress payments based on costs cannot be employed practically and that there are adequate safeguards provided for the administration of progress payments based on a percentage or stage of completion.
432.103 Progress payments under construction contracts.
(a) When approving a progress payment under a construction contract, the contracting officer shall indicate the amount to be paid by the payment office and include in the contract file the rationale in support of the payment.
(b) When a retainage is made on a progress payment under a construction contract, the contracting officer shall place in the contract file a written determination stating the reason(s) for the retainage.
(c) When a progress payment under a construction contract has been approved, the amount to be paid, the amount of any retainage withheld, and the reason(s) for the retainage shall be provided to the contractor by the contracting officer in writing before the payment due date.
(d) When the contractor, under a fixed-price construction contract, furnishes evidence to the contracting officer that the surety has been paid in full for bond premiums and requests reimbursement, the first subsequent progress payment shall include the total amount attributable to such bond premiums and the Government shall pay that amount in full. This amount paid for the bond premiums is not an amount in addition to the stated contract price.
432.111 Contract clauses for non-commercial purchases.
The contracting officer shall insert the clause at 452.232-1, Reimbursement for Bond Premiums - Fixed Price Construction Contracts, whenever the clause at FAR 52.232-5, Payments under Fixed-Price Construction Contracts, is used in a contract.
432.113 Customary contract financing.
The contracting officer may determine the necessity for customary contract financing. The determination and finding that customary contract financing is needed shall be placed in the contract file.
432.114 Unusual contract financing.
The HCA is authorized to approve unusual contract financing. The signed determination and finding supporting this approval shall be included in the contract file.
In the case of unusual contract financing, the approval by the HCA shall be recorded in a determination and finding and maintained in the contract file.
432.202-4 Security for Government financing.
Prior to determining that an offeror's financial condition is adequate security, the contracting officer must obtain the concurrence of the funding activity in the proposed determination.
432.206 Solicitation provisions and contract clauses.
The responsibility for administration of the liquidation provisions of a contract may not be transferred from the contracting officer.
432.207 Administration and payment of commercial financing payments.
The responsibility for receiving, reviewing, and approval of contract financing requests may not be transferred from the contracting officer.
Within this subpart, the "agency" or "guaranteeing agency" is the "head of the contracting activity" (HCA) and may not be redelegated.
The HCA is designated as the individual responsible for making the findings and determination, and for approval of the contract terms concerning advance payments.
432.406 Letters of credit.
The HCA is designated as the individual responsible for coordination with the Department of Treasury concerning letters of credit.
(a) The HCA is designated as the individual who may authorize, on a case by case basis, advance payments without interest for the contract types describedin FAR 32.407(d)(1), (2), (3), and (4). The signed determination and findings supporting these authorizations shall be included in the contract files.
(b) The SPE is designated as the individual who may authorize advance payments without interest other than those described in paragraph (a) of this section.
432.412 Contract clause.
The decision to use Alternates I or III to clause 52.232-12 must be supported by a determination and finding.
"Responsible official" means the contracting officer.
432.616 Compromise actions.
Compromise of a debt within the proceedings under appeal to the Board of Contract Appeals is the responsibility of the contracting officer.
432.703 Contract funding requirements.
432.703-3 Contracts crossing fiscal years.
Funds appropriated to USDA may be used for one year contracts which are to be performed in two fiscal years so long as the total amount for such contracts is obligated in the year for which the funds are appropriated (7 U.S.C. 2209c).
432.770 USDA specific funding limitations.
(a) The USDA is authorized to subscribe for newspapers as may be necessary to carry out its authorized work: Provided, that such subscriptions shall not be made unless provision is made therefor in the applicable appropriation and the cost thereof is not in excess of limitations prescribed therein (7 U.S.C. 2258).
(b) The expenditure of any USDA appropriation for any consulting service through any contract, pursuant to section 3109 of Title 5 of the U.S. Code shall be limited to those contracts where such expenditures are a matter of public record and available for public inspection, except where otherwise provided under existing law, or under existing Executive Order issued pursuant to existing law (7 U.S.C. 2225a).
Written notices of assignment and a true copy of the assigned instrument are to be sent to the contracting officerrather than the agency head. Other copies are distributed as directed in FAR 32.802.
The HCA may make a determination of need to include a no-setoff commitment in a contract.
The information described in FAR 32.805 shall be filed with the contracting officer.
432.806 Contract clauses.
The contracting officer may make the determination whether to include the clause at FAR 52.232-23 in any purchase order expected to exceed the micro-purchase threshold.
432.905 Invoice payments.
The payment terms for supplies and services on the Procurement List and provided by a Javits-Wagner-O'Day Act participating nonprofit agency are governed by FAR 8.709.
432.906 Contract financing payments.
The HCA may prescribe, on a case-by-case basis, a shorter period for financing payments.
432.1007 Administration and payment of performance-based payments.
The responsibility for receiving, reviewing, and approval of performance-based payment requests may not be transferred from the contracting officer.
(a) The Senior Procurement Executive (SPE) is responsible for coordinating the handling of bid protests lodged with the General Accounting Office (GAO).
(b) The head of the contracting activity (HCA), on a non-delegable basis, may resolve protests and authorize reimbursement of costs in accordance with FAR 33.102(b).
433.103 Protests to the agency.
(a) Actual or prospective bidders or offerors may file protests either with the HCA, as provided by 433.102(b), or with the contracting officer. Protesters who file protests with the HCA shall furnish a complete copy to the contracting officer no later than 1 day after the protest is filed with the HCA.
(b) When a protest is received, the adjudicating official shall take prompt action towards resolution and notify the protester in writing of the action taken. The written final decision shall include a paragraph substantially as follows:
This decision shall be final and conclusive unless a further written notice of protest is filed with the General Accounting Office in accordance with 4 CFR Part 21. Neither the filing of a protest with USDA nor the filing of a protest with the General Accounting Office affects your right to file an action in a district court of the United States or the United States Court of Federal Claims.
433.104 Protests to GAO.
The contracting activity shall furnish a copy of all reports submitted to the GAO, including all relevant documents, to the SPE simultaneously with their submission to the GAO.
The Assistant Secretary for Administration is authorized to determine the applicability of the Contract Disputes Act to contracts with foreign governments pursuant to FAR 33.203.
433.203-70 Agriculture Board of Contract Appeals.
The organization, jurisdiction, and functions of the Agriculture Board of Contract Appeals, together with its Rules of Procedure, are set out in 7 CFR, Part 24.
433.209 Suspected fraudulent claims.
The contracting officer shall refer all matters related to suspected fraudulent claims by a contractor under the conditions in FAR 33.209 to the Office of Inspector General for additional action or investigation.