419.201 General Policy.
It is the policy of USDA to provide a fair portion of its contracting and subcontracting opportunities to small, disadvantaged, minority, and women-owned businesses.
419.201-70 Office of Small and Disadvantaged Business Utilization (OSDBU).
The Office of Small and Disadvantaged Business Utilization (OSDBU) develops rules, policy, procedures and guidelines for the effective administration of USDA's small and disadvantaged business procurement preference program to include minority and women-owned business.
419.201-71 Small Business Coordinators.
The head of the contracting activity (HCA) or a representative of the HCA shall designate in writing a small business coordinator in each contracting office. Supervisors of small business coordinators are encouraged to provide sufficient time for the coordinators to carry out their small business program duties. Coordinators' duties shall include, but not be limited to, the following:
(a) Review each proposed acquisition expected to exceed the simplified acquisition threshold prior to its solicitation. The coordinator shall:
(1) Recommend section 8(a) action and identify potential contractors, or
(2) Identify available minority and women-owned businesses to be solicited by competitive procedures. Coordinators shall document the contract file with recommendations made and actions taken.
(b) Participate in goal-setting procedures and planning activities and establish aggressive minority and women-owned business goals based on the annual review of advance acquisition plans.
(c) Participate in the review of those contracts which require the successful offeror to submit written plans for the utilization of small and small disadvantaged businesses as subcontractors.
(d) Ensure that purchases exceeding $2,500 and not exceeding the simplified acquisition threshold are reserved exclusively for small businesses, including minority and women-owned businesses. This policy shall be implemented unless the contracting officer is unable to obtain offers from two or more small business concerns that are competitive with market prices and in terms of quality and delivery of the goods or services being purchased.
(e) Maintain comprehensive source listings of small businesses.
(f) Upon written request, provide small, minority and women-owned businesses the bidders mailing lists of individuals receiving solicitations which will contain the subcontracting clause entitled "Utilization of Small Business Concerns and Small Disadvantaged Business Concerns." These lists may be limited to those supplies or services of major interest to the requesting firms.
(g) Develop a program of contacts with local, small, minority, and women- owned trade, business, and professional associations and organizations and Indian tribal councils to apprise them of USDA's program needs and recurring contract requirements.
(h) Periodically meet with program managers to discuss requirements of the small business preference program, explore the feasibility of breaking large complex requirements into smaller lots suitable for participation by small firms, and encourage program managers to meet with these firms so that their capabilities can be demonstrated.
(i) Establish internal operating procedures which implement the requirements of the regulations as set forth in this Part 419. Compile data and prepare all reports pertaining to the small, minority and women-owned business activities. Ensure that these reports are accurate, complete and up-to-date.
(j) Assist and counsel small business firms and especially those found to be nonresponsive or nonresponsible to help qualify them for future awards.
(k) Review proposed large contract requirements to determine the potential for breaking out components suitable for purchase from small business firms.
(l) Ensure that the SBA Resident Procurement Center Representative (PCR) is provided an opportunity and reasonable time to review any solicitation that meets the dollar threshold for small business and small disadvantaged business subcontracting plans.
(a) The Director, OSDBU, shall be responsible for submitting reports concerning USDA's progress and achievements in the procurement preference program.
(b) Subcontracting data for an agency shall be collected by the small business coordinators and submitted to OSDBU by April 10 and November 20 of each year.
419.508 Solicitation provisions.
The contracting officer shall insert the provision at 452.219-70, Size Standard and SIC Code Information, in solicitations that are set aside for small businesses.
Contracting officers shall refer determinations of non-responsibility regarding small businesses directly to the SBA Regional Office servicing the location where the contractor's office (home) is located.
419.602-3 Resolving differences between the agency and the Small Business Administration.
The HCA is authorized to file the formal appeal with the Small Business Administration's Central Office as provided by FAR 19.602-3(c).
Requests for the use of overtime shall be approved by an acquisition official at a level above the contracting officer in accordance with the procedures in FAR 22.103-4(a) and (b).
422.302 Liquidated damages and overtime pay.
Heads of contracting activities (HCA's) are authorized to review determinations of liquidated damages due under section 104(c) of the Contract Work Hours and Safety Standards Act, and to take remedial action, if appropriate, in accordance with FAR 22.302(c). Contractors or subcontractors may request review of administrative determinations of liquidated damages by written notice to the contracting officer. The contracting officer shall promptly forward appeals of liquidated damages determinations to the HCA.
422.404 Davis-Bacon Act wage determinations.
422.404-6 Modifications of wage determinations.
HCA's are authorized to request extension of the 90 day period for award after bid opening as provided in FAR 22.404-6(b)(6).
422.406 Administration and enforcement.
Reports of violations shall be forwarded to the HCA, who shall process such reports in accordance with FAR 22.406-8(d).
422.604-2 Regulatory exemptions.
The Assistant Secretary for Administration can request the Secretary of Labor to exempt contracts from the Walsh-Healey Public Contracts Act pursuant to FAR 22.604-2(c). A written finding justifying the request for exemption shall be prepared for the Assistant Secretary's signature and submitted by the HCA to the Senior Procurement Executive (SPE) for referral to the Assistant Secretary.
422.608-4 Award pending final determination.
The HCA is delegated authority to approve the contracting officer's certification for award required by FAR 22.608-4.
The contracting office shall submit questions involving the applicability of Executive Order 11246 and FAR subpart 22.8 through the HCA to the SPE for resolution.
422.804 Affirmative action programs.
The HCA shall ensure that each contracting office, awarding nonexempt construction contracts, maintains a current listing of covered geographical areas subject to affirmative action requirements specifying goals for minorities and women in covered construction trades.
(a) The Assistant Secretary for Administration is authorized to make thedetermination in FAR 22.807(a)(1) that a contract is essential to the national security.
(b) The contracting officer shall submit requests for exemptions under FAR 22.807(a)(1), (a)(2), and (b)(5) through the HCA to the SPE for determination by the Assistant Secretary for Administration or referral to the Director, Office of Federal Contract Compliance Programs (OFCCP), as appropriate.
(a) The Assistant Secretary for Administration is authorized to make the waiver determinations under FAR 22.1303(a) and (b) with concurrence of the Director, OFCCP.
(b) The contracting office shall submit requests for waivers through the HCA to the SPE for determination by the Assistant Secretary for Administration.
422.1306 Complaint procedures.
The contracting officer shall forward complaints received about the administration of the Vietnam Era Veterans Readjustment Assistance Act directly to the Department of Labor (DoL) as prescribed in FAR 22.1306.
(a) The Assistant Secretary for Administration is authorized to make the waiver determinations under FAR 22.1403(a) and FAR 22.1403(b) with concurrence of the Director, OFCCP.
(b) The contracting officer shall submit requests for waivers through the HCA to the SPE for determination by the Assistant Secretary for Administration.
422.1406 Complaint procedures.
The contracting officer shall forward complaints received about the administration of Section 503 of the Rehabilitation Act of 1973, as amended, directly to the OFCCP as prescribed in FAR 22.1406.
In addition to the requirement in FAR 23.101, this subpart applies to indefinite-delivery contracts, other than those for commercial items, when the contracting officer estimates that the contract will exceed $100,000.
The head of the contracting activity (HCA) shall establish a system of instructions to make available to each contracting officer the EPA List of Violating Facilities and to ensure the contracting officer reviews the list prior to each proposed award.
(a) The Assistant Secretary for Administration is authorized to grant an exemption described in FAR 23.104.
(b) The Senior Procurement Executive (SPE) is authorized to consult with the EPA Administrator regarding a proposed class exemption.
423.106 Delaying award.
Prior to notifying EPA, the contracting officer shall advise the SPE of the need to award before the requested time period expires.
423.107 Compliance responsibilities.
The HCA is authorized to notify the Administrator of EPA of known or suspected noncompliance with clean air or water standards in facilities used in performing nonexempt contracts. A copy of the notification is to be provided to the SPE.
In the acquisition of products and services, USDA will give preference to those that are more energy-efficient.
423.400 Scope of subpart.
This subpart implements and supplements FAR policies and procedures for acquiring products and services when preference is given to offers of products containing recovered materials. This subpart further supplements FAR subpart 23.4 by providing guidance for recycling and waste prevention programs in accordance with Executive Order 12873 and 42 U.S.C. 6962.
"Mission Areas" are USDA organizational elements headed by an Undersecretary or an Assistant Secretary.
"USDA Acquisition, Recycling, and Waste Prevention Program," issued by the USDA Environmental Executive, provides implementing guidance for Departmental affirmative procurement, recycling, and waste reduction.
"The USDA Environmental Executive" is the Deputy Assistant Secretary for Administration.
(a) The dollar thresholds described in FAR 23.404(a) apply to USDA as a whole.
(b) EPA Designated Items. The officials identified as Acquisition, Recycling, and Waste Prevention Program (AR&WPP) Coordinators are authorized to approve determinations to buy EPA designated items which do not meet EPA or USDA minimum recovered material content standards.
(c) Agency designated items. The USDA Environmental Executive may, without further publication in this chapter, designate items or classes of items containing recovered material to be acquired under the procedures in FAR 23.4 and this subpart.
423.404-70 Acquisition, Recycling, and Waste Prevention Program (AR&WPP).
(a) Applicability. The AR&WPP applies to all USDA organizations; i.e., USDA mission areas, USDA corporations (as described in 31 U.S.C. 9101), and USDA staff offices not included within a mission area.
(b) Authority. The AR&WPP has been established to comply with the requirements of Executive Order 12873 to coordinate all environmental programs in the areas of procurement and acquisition, standards and specification review, facilities management, waste prevention and recycling, and logistics.
(1) Each USDA organization will identify one or more AR&WPP Coordinators in writing to represent the mission area, serve on the Council of Coordinators, and work in conjunction with the USDA Environmental Executive.
(2) Each USDA organization periodically will conduct an audit (survey or inventory) of the waste stream generated by the organization. The goals of the audit are: (i) to identify and measure the elements of waste generated in its operations ; (ii) to identify processes, equipment, techniques, or materials which generate waste in energy or materials; (iii) to identify actions which can be taken to reduce and to recycle or recover the wastes generated; and (iv) to assign time frames to accomplish those actions.
(3) Each USDA organization will implement an avoidance or recovery or recycling program based on the results of the waste stream audit.
(4) Each USDA organization will implement a plan to install on-going waste prevention techniques.
(5) Each USDA organization will ensure that responsibility for preparation, implementation, and monitoring of its affirmative procurement program is shared between program personnel and procurement personnel.
(6) Each USDA organization will establish measurable goals by which the effectiveness of its participation in AR&WPP can be assessed on an annual basis.
(7) Each USDA organization will sponsor annual awards to recognize the most innovative environmental program of the year.
(d) Acquisition and Administration.
(1) Each USDA organization will annually review its product descriptions to enhance the use of recovered materials and environmentally preferable products and services by eliminating from the product description:
(1) any exclusion of recovered materials, and (ii) any requirement that items be manufactured from virgin materials.
(2) Each USDA organization will create a promotion program to internally and externally promote its desire to buy recycled products.
(3) Each USDA organization will implement the USDA electronic acquisition system to reduce waste by eliminating unnecessary paper transactions and to foster accurate data collection and reporting of acquisitions.
(4) Each USDA organization will establish an affirmative procurement program specifically for the needs and requirements of its own organization, to maximize environmental benefits, consistent with price, performance, and availability considerations.
(5) Each USDA organization will ensure that the on-going inspection and production surveillance systems in place will monitor the production or the testing of goods and services to verify the recovered material contents reported.
(6) Each USDA organization will include (i) requirements in contracts for contractor operation of Government-owned or leased facilities to provide for waste prevention activities and the recycling of materials and (ii) environmental and recycling factors in the selection process for the acquisition and management of real property.
423.506 Suspension of payments, termination of contract, and debarment and suspension actions.
(a) The contracting officer may recommend waiver of the determination to suspend payments, to terminate a contract, or to debar or to suspend a contractor.
(b) The recommendation shall be submitted through the HCA to the SPE and shall include a full description of the disruption of USDA operations should the determination not be waived.
(c) The SPE will submit the request for a waiver to the Secretary with a recommendation for action.
The HCA shall establish a system of instructions to identify the installation/facility radiation protection officer.
In its acquisitions, USDA will give preference to environmentally preferable and energy-efficient products and services.
USDA regulations implementing the Privacy Act are found in 7 CFR, Subtitle A, Part 1, Subpart G. Contracting officers shall follow these regulations when responding to requests for information or awarding contracts that will involve the design, development, or operation of a system of records on individuals to accomplish agency functions.
424.104 Contract clauses.
When applicable, the contracting officer shall insert the clause at 452.224-70, Confidentiality of Information, in contracts involving confidential information.
USDA regulations implementing the Freedom of Information Act are found in 7 CFR, Subtitle A, Part 1, Subpart A. Contracting officers shall follow these regulations when responding to requests for information or awarding contracts that will involve the design, development, or operation of a system of records on individuals to accomplish agency functions.
The Senior Procurement Executive (SPE) shall make the determination prescribed in FAR 25.102(a)(3).
425.105 Evaluating offers.
The SPE shall make the determinations prescribed in FAR 25.105. Requests for SPE approval shall be submitted by the HCA, in writing, and shall provide a detailed justification supporting why the proposed award is in the best interest of the Government.
425.108 Excepted articles, materials, and supplies.
(a) Copies of determinations of nonavailability in accordance with FAR 25.102(a)(4) or 25.202(a)(3), for articles, material or supplies not listed in FAR 25.108, shall be submitted to the SPE for submission to the FAR Council.
(b) Information required by FAR 25.108(c) shall be submitted to the SPE for submission to the FAR Council.
The SPE shall make the determination prescribed in FAR 25.202(a)(2).
425.203 Evaluating offers.
(a) The SPE may determine that the use of a particular domestic construction material would be impracticable or would unreasonably increase the cost of the contract.
(b) If a contracting officer proposes that the use of a particular domestic construction material should be waived for a contract, the contracting officer shall submit the proposed award and the information prescribed in FAR 25.203(b) through the HCA to the SPE for approval or disapproval.
Contracting officers shall, in accordance with the debarment procedures prescribed in 409.4, refer all violations of FAR clause 52.225-5, Buy American Act--Construction Material, to the Department Debarring Officer for possible debarment action.
The HCA shall make the determinations prescribed in FAR 25.302(b)(2) and (3) and may authorize differentials greater than 50 percent as prescribed in FAR 25.302(c).
425.304 Excess and near-excess foreign currencies.
HCA's shall make the determinations as to the feasibility of using excess or near-excess currency.
Whenever the U.S. Trade Representative publishes a redetermination of the dollar threshold at which the Trade Agreements Act applies, that dollar threshold will be published in a Departmental Notice, 5025 series.
425.901 Omission of Audit Clause.
The SPE shall make the determination under FAR 25.901(c)(1).
425.1002 Trade Sanctions.
The Secretary, without power of redelegation, has the authority to make the necessary determination(s) and authorize award(s) of contract(s) in accordance with FAR 25.1002(c).