CHAPTER 34--DEPARTMENT OF EDUCATION ACQUISITION REGULATION

A complete revision of the Education Department Acquisition Regulation (EDAR) became effective on May 9, 2011. The new regulation can be reviewed in its entirety on http://edocket.access.gpo.gov/2011/pdf/2011-4660.pdf.

Class Deviations

A deviation is the issuance or use of a policy, procedure, solicitation provision, contract clause, method, or practice of conducting acquisition actions of any kind at any stage of the acquisition process that is inconsistent with the Federal Acquisition Regulation (FAR) or Education Department Acquisition Regulation (EDAR). Deviations are processed in accordance with FAR 1.400, Deviations from the FAR, or EDAR 3401.4, Deviations. In general, an approved deviation may authorize lesser or greater limitations on the use of any solicitation provision, contract clause, policy, or procedure prescribed by the FAR or EDAR.

  • Acquisition Alert 2017-02: Award Term Clarification [PDF, 134KB]
  • Acquisition Alert 2016-07: Class Deviation to Implement Policy Regarding Access to Contractor Information Systems [PDF, 212KB]
  • Acquisition Alert 2016-06: Class Deviation to Implement the Family Educational Rights and Privacy Act (FERPA) [PDF, 835KB]
  • Acquisition Alert 2016-02: Key Personnel Clause [PDF, 214KB]

  • TITLE 48—FEDERAL ACQUISITION
    REGULATIONS SYSTEM

    CHAPTER 34—DEPARTMENT OF
    EDUCATION ACQUISITION REGULATION

    PARTS 3400 TO 3499

    SUBCHAPTER A—GENERAL

    Sec.

    3401 ED acquisition regulation system

    3402 Definitions of words and terms

    3403 Improper business practices and
    personal conflicts of interest

    SUBCHAPTER B—COMPETITION AND
    ACQUISITION PLANNING

    3405 Publicizing contract actions

    3406 Competition requirements

    3408 Required sources of supplies and
    services

    3409 Contractor qualifications

    3412 Acquisition of commercial items

    SUBCHAPTER C—CONTRACTING
    METHODS AND CONTRACT TYPES

    3413 Simplified acquisition procedures

    3414 Sealed bidding

    3415 Contracting by negotiation

    3416 Types of contracts

    3417 Special contracting methods

    SUBCHAPTER D—SOCIOECONOMIC
    PROGRAMS

    3419 Small business programs

    3422 Application of labor laws to
    Government acquisitions

    3424 Protection of privacy and freedom of
    information

    3425 Foreign acquisition

    SUBCHAPTER E—GENERAL
    CONTRACTING REQUIREMENTS

    3427 Patents, data, and copyrights

    3428 Bonds and insurance

    3432 Contract financing

    3433 Protests, disputes, and appeals

    SUBCHAPTER F—SPECIAL CATEGORIES
    OF CONTRACTING

    3437 Service contracting

    3439 Acquisition of information technology

    SUBCHAPTER G—CONTRACT
    MANAGEMENT

    3442 Contract administration and audit
    services

    3443 Contract modifications

    3445 Government property

    3447 Transportation

    SUBCHAPTER H—CLAUSES AND FORMS

    3452 Solicitation provisions and contract
    Clauses

    SUBCHAPTER A—GENERAL
    PART 3401—ED ACQUISITION
    REGULATION SYSTEM

    Sec.

    3401.000 Scope of part.

    Subpart 3401.1—Purpose, Authority,
    Issuance

    3401.104 Applicability.

    3401.105 Issuance.

    3401.105–2 Arrangement of regulations.

    3401.105–3 Copies.

    Subpart 3401.3—Agency Acquisition
    Regulations

    3401.301 Policy.

    3401.303 Publication and codification.

    3401.304 Agency control and compliance
    procedures.

    Subpart 3401.4—Deviations

    3401.401 Definition.

    3401.403 Individual deviations.

    3401.404 Class deviations.

    Subpart 3401.5—Agency and Public
    Participation

    3401.501 Solicitation of agency and public
    views.

    3401.501–2 Opportunity for public
    comments.

    Subpart 3401.6—Career Development,
    Contracting Authority, and
    Responsibilities

    3401.601 General.

    3401.602–3 Ratification of unauthorized
    commitments.

    3401.670 Nomination and appointment of
    contracting officer’s representatives
    (CORs).

    3401.670–1 General.

    3401.670–2 Appointment.

    3401.670–3 Contract clause.

    Authority: 5 U.S.C. 301 and 20 U.S.C.
    1018a.

    3401.000 Scope of part.

    The Federal Acquisition Regulation
    System brings together, in title 48 of the
    Code of Federal Regulations, the
    acquisition regulations applicable to all
    executive agencies of the Federal
    government. This part establishes a
    system of Department of Education
    (Department) acquisition regulations,
    referred to as the EDAR, for the
    codification and publication of policies
    and procedures of the Department that
    implement and supplement the Federal
    Acquisition Regulation (FAR).

    Subpart 3401.1—Purpose, Authority,
    Issuance

    3401.104 Applicability.

    (a)The FAR and the EDAR apply to
    all Department contracts, as defined in
    FAR Part 2, except where expressly
    excluded.

    (b) 20 U.S.C. 1018a provides the PBO
    with procurement authority and
    flexibility associated with sections
    (a)–(l) of the statute.

    (c) For non-appropriated fund
    contracts, the FAR and EDAR will be
    followed to the maximum extent
    practicable, excluding provisions
    determined by the contracting officer,
    with the advice of counsel, not to apply
    to contracts funded with non-appropriated
    funds. Adherence to a
    process similar to those required by or
    best practices suggested by the FAR will
    not confer court jurisdiction concerning
    non-appropriated funds that does not
    otherwise exist.

    3401.105 Issuance.

    3401.105–2 Arrangement of regulations.

    (c)(5) References and citations. The
    regulations in this chapter may be
    referred to as the Department of
    Education Acquisition Regulation or the
    EDAR. References to the EDAR are made
    in the same manner as references to the
    FAR. See FAR 1.105–2(c).

    3401.105–3 Copies.

    Copies of the EDAR in the Federal
    Register
    and Code of Federal
    Regulations (CFR) may be purchased
    from the Superintendent of Documents,
    Government Printing Office (GPO),
    Washington, DC 20402. An electronic
    version of the EDAR is available for
    viewing at: http://www.ed.gov/policy/
    fund/reg/clibrary/edar.html.

    Subpart 3401.3—Agency Acquisition
    Regulations

    3401.301 Policy.

    (a)(1) Subject to the authorities in
    FAR 1.301(c) and other statutory
    authority, the Secretary of Education
    (Secretary) or delegate may issue or
    authorize the issuance of the EDAR. It
    implements or supplements the FAR
    and incorporates, together with the
    FAR, Department policies, procedures,
    contract clauses, solicitation provisions,
    and forms that govern the contracting
    process or otherwise control the
    relationship between the Agency,
    including its sub-organizations, and
    contractors or prospective contractors.
    The Head of Contracting Activity (HCA)
    for FSA may issue supplementary
    guidelines applicable to FSA.

    3401.303 Publication and codification.

    (a) The EDAR is issued as chapter 34
    of title 48 of the CFR.

    (1) The FAR numbering illustrations
    at FAR 1.105–2 apply to the EDAR.

    (2) The EDAR numbering system
    corresponds with the FAR numbering
    system. An EDAR citation will include
    the prefix ‘‘34’’ prior to its corresponding
    FAR part citation; e.g., FAR 25.108–2
    would have corresponding EDAR text
    numbered as EDAR 3425.108–2.


    (3) Supplementary material for which
    there is no counterpart in the FAR will
    be codified with a suffix beginning with
    ‘‘70’’ or, in cases of successive sections
    and subsections, will be numbered in
    the 70 series (i.e., 71–79). These
    supplementing sections and subsections
    will appear to the closest corresponding
    FAR citation; e.g., FAR 16.4.

    (Incentive Contracts) may be augmented in the
    EDAR by citing EDAR 3416.470 (Award
    Term) and FAR 16.403 (Fixed-price
    incentive contracts) may be augmented
    in the EDAR by citing EDAR 3416.403–
    70 (Award fee contracts). (Note: These
    citations are for illustrative purposes
    only and may not actually appear in the
    published EDAR). For example:

    FAR

    Is Implemented as

    Is Augmented as

    15

    3415

    3415.70

    15.1

    3415.1

    3415.170

    15.101

    3415.101

    3415.101–70

    15.101–1

    3415.101–1

    3415.101–1–70

    15.101–1(b)

    3415.101–1(b)

    3415.101–1(b)(70)

    15.101–1(b)(1)

    3415.101–1(b)(1)

    3415.101–1(b)(1)(70)


    (c) Activity-specific authority.
    Guidance that is unique to an
    organization with HCA authority
    contains that activity’s acronym directly
    preceding the cite. The following
    activity acronyms apply:

    FSA—Federal Student Aid.

    3401.304 Agency control and compliance
    procedures.

    (a) The EDAR is issued for
    Department acquisition guidance in
    accordance with the policies stated in
    FAR 1.301. The EDAR is subject to the
    same review procedures within the
    Department as other regulations of the
    Department.

    Subpart 3401.4—Deviations
    3401.401 Definition.


    A deviation from the EDAR has the
    same meaning as a deviation from the
    FAR.

    3401.403 Individual deviations.

    An individual deviation from the FAR
    or the EDAR must be approved by the
    Senior Procurement Executive (SPE).

    3401.404 Class deviations.

    A class deviation from the FAR or the
    EDAR must be approved by the Chief
    Acquisition Officer (CAO).

    Subpart 3401.5—Agency and Public
    Participation

    3401.501 Solicitation of agency and public
    views.

    3401.501–2 Opportunity for public
    comments.

    Unless the Secretary approves an
    exception, the Department issues the
    EDAR, including any amendments to
    the EDAR, in accordance with the
    procedures for public participation in 5
    U.S.C. 553. Comments on proposed
    Department notices of proposed
    rulemaking may be made at http://
    www.regulations.gov.

    Subpart 3401.6—Career Development,
    Contracting Authority, and
    Responsibilities

    3401.601 General.

    (a) Contracting authority is vested in
    the Secretary. The Secretary has
    delegated this authority to the CAO. The
    Secretary has also delegated contracting
    authority to the SPE, giving the SPE
    broad authority to perform functions
    dealing with the management direction
    of the entire Department’s procurement
    system, including implementation of its
    unique procurement policies,
    regulations, and standards. Limitations
    to the extent of this authority and
    successive delegations are set forth in
    the respective memorandums of
    delegations.

    3401.602–3 Ratification of unauthorized
    commitments.

    (a) Definitions. As used in this
    subpart, commitment includes issuance
    of letters of intent and arrangements for
    free vendor services or use of equipment
    with the promise or the appearance of
    commitment that a contract,
    modification, or order will, or may, be
    awarded.

    (b) Policy.
    (1) The HCA or Chief of the
    Contracting Office may, or may not,
    later ratify unauthorized commitments
    made by individuals without
    contracting authority or by contracting
    officers acting in excess of the limits of
    their delegated authority. Law and
    regulation requires that only individuals
    acting within the scope of their
    authority make acquisitions. Within the
    Department, that authority vests solely
    with the Contracting Officer.
    Acquisitions made by other than
    authorized personnel are matters of
    serious misconduct. The employee may
    be held legally and personally liable for
    the unauthorized commitment.

    (2) Ratifications do not require
    concurrence from legal counsel.

    (3) The person who made the
    unauthorized commitment must prepare
    the request for approval that must be
    submitted through the person’s manager
    to the approving official.

    (4) The Chief of the Contracting Office
    may review and sign or reject
    ratification requests up to $25,000.

    (5) All other ratification requests must
    be reviewed and signed or rejected by
    the HCA.

    3401.670 Nomination and appointment of
    contracting officer’s representatives
    (CORs).

    3401.670–1 General.

    (a) Program offices must nominate
    personnel for consideration of a COR
    appointment in accordance with the
    Department’s COR Policy Guide.

    (b) The contracting officer must
    determine what, if any, duties will be
    delegated to a COR.

    (c) The contracting officer may
    appoint as many CORs as is deemed
    necessary to support efficient contract
    administration.

    (d) Only individuals with a written
    delegation of authority from a
    contracting officer may act in any
    capacity as a representative of that
    contracting officer, including any
    alternate, assistant, or back-up duties to
    the COR.

    (e) For all contracts in which an
    information technology system exists,
    the System Security Officer for that
    system will perform all responsibilities
    necessary for contractor access to the
    system.

    3401.670–2 Appointment.

    COR appointments must be in
    accordance with the Department’s COR
    Program Guide.

    3401.670–3 Contract clause.

    Contracting officers must insert a
    clause substantially the same as the
    clause at 3452.201–70 (Contracting
    Officer’s Representative (COR)), in all
    solicitations and contracts for which a
    COR will be (or is) appointed.

    PART 3402—DEFINITIONS OF WORDS
    AND TERMS

    Subpart 3402.1—Definitions

    Sec.

    3402.101 Definitions.

    3402.101–70 Abbreviations and acronyms.

    Subpart 3402.2—Definitions Clause
    3402.201 Contract clause.

    Authority: 5 U.S.C. 301 and 20 U.S.C.
    1018a.

    Subpart 3402.1—Definitions

    3402.101 Definitions.
    As used in this chapter—
    Chief Acquisition Officer or CAO
    means the official responsible for
    monitoring the agency’s acquisition
    activities, evaluating them based on
    applicable performance measurements,
    increasing the use of full and open
    competition in agency acquisitions,
    making acquisition decisions consistent
    with applicable laws, and establishing
    clear lines of authority, accountability,
    and responsibility for acquisition
    decision-making and developing and
    maintaining an acquisition career
    management program.
    Chief of the Contracting Office means
    an official serving in the contracting
    activity (CAM or FSA Acquisitions) as
    the manager of a group that awards and
    administers contracts for a principal
    office of the Department. See also
    definition of Head of the Contracting
    Activity or HCA
    below.
    Contracting Officer’s Representative
    or COR means the person representing
    the Federal government for the purpose
    of technical monitoring of contract
    performance. The COR is not authorized
    to issue any instructions or directions
    that effect any increases or decreases in
    the scope of work or that would result
    in the increase or decrease of the cost or
    price of a contract or a change in the
    delivery dates or performance period of
    a contract.
    Department of ED means the United
    States Department of Education.
    Head of the Contracting Activity or
    HCA means those officials within the
    Department who have responsibility for
    and manage an acquisition organization
    and usually hold unlimited
    procurement authority. The Director,
    Federal Student Aid Acquisitions, is the
    HCA for FSA. The Director, Contracts
    and Acquisitions Management (CAM), is
    the HCA for all other Departmental
    program offices and all boards,
    commissions, and councils under the
    management control of the Department.
    Performance-Based Organization or
    PBO is the office within the Department
    that is mandated by Public Law 105–244
    to carry out Federal student assistance
    or aid programs and report to Congress
    on an annual basis. It may also be
    referred to as ‘‘Federal Student Aid.’’
    Senior Procurement Executive or SPE
    means the single agency official
    appointed as such by the head of the
    agency and delegated broad
    responsibility for acquisition functions,
    including issuing agency acquisition
    policy and reporting on acquisitions
    agency-wide. The SPE also acts as the
    official one level above the contracting
    officer when the HCA is acting as a
    contracting officer.

    3402.101–70 Abbreviations and acronyms.

    CAO—Chief Acquisition Officer.

    CO—Contracting Officer.

    COR—Contracting Officer’s Representative.

    FSA—Federal Student Aid.

    HCA—Head of the Contracting Activity.

    IPv6—Internet Protocol version 6.

    OMB—Office of Management and Budget.

    OSDBU—Office of Small and Disadvantaged
    Business Utilization.

    PBO—Performance-Based Organization
    (Federal Student Aid).

    RFP—Request for Proposal.

    SBA—Small Business Administration.

    SPE—Senior Procurement Executive.

    Subpart 3402.2—Definitions Clause

    3402.201 Contract clause.

    The contracting officer must insert the
    clause at 3452.202–1 (Definitions—
    Department of Education) in all
    solicitations and contracts in which the
    clause at FAR 52.202–1 is required.

    PART 3403—IMPROPER BUSINESS
    PRACTICES AND PERSONAL
    CONFLICTS OF INTEREST

    Subpart 3403.1—Safeguards

    Sec.

    3403.101 Standards of conduct.

    3403.101–3 Agency regulations.

    Subpart 3403.2—Contractor Gratuities to
    Government Personnel

    3403.203 Reporting suspected violations of
    the Gratuities clause.

    Subpart 3403.3—Reports of Suspected
    Antitrust Violations

    3403.301 General.

    Subpart 3403.4—Contingent Fees

    3403.409 Misrepresentation or violations of
    the covenant against contingent fees.

    Subpart 3403.6—Contracts with
    Government Employees or Organizations
    Owned or Controlled by Them

    3403.602 Exceptions.

    Authority: 5 U.S.C. 301.

    Subpart 3403.1—Safeguards

    3403.101 Standards of conduct.

    3403.101–3 Agency regulations.

    The Department’s regulations on
    standards of conduct and conflicts of
    interest are in 34 CFR part 73, Standards
    of Conduct.

    Subpart 3403.2—Contractor Gratuities
    to Government Personnel

    3403.203 Reporting suspected violations
    of the Gratuities clause.

    (a) Suspected violations of the
    Gratuities clause at FAR 52.203–3 must
    be reported to the HCA in writing
    detailing the circumstances.

    (b) The HCA evaluates the report with
    the assistance of the Designated Agency
    Ethics Officer. If the HCA determines
    that a violation may have occurred, the
    HCA refers the report to the SPE for
    disposition.

    Subpart 3403.3—Reports of Suspected
    Antitrust Violations

    3403.301 General.

    Any Departmental personnel who
    have evidence of a suspected antitrust
    violation in an acquisition must—

    (1) Report that evidence through the
    HCA to the Office of the General
    Counsel for referral to the Attorney
    General; and

    (2) Provide a copy of that evidence to
    the SPE.

    Subpart 3403.4—Contingent Fees

    3403.409 Misrepresentation or violations
    of the covenant against contingent fees.

    Any Departmental personnel who
    suspect or have evidence of attempted
    or actual exercise of improper influence,
    misrepresentation of a contingent fee
    arrangement, or other violation of the
    Covenant Against Contingent Fees, must
    report the matter promptly in
    accordance with the procedures in
    3403.203.

    Subpart 3403.6—Contracts with
    Government Employees or
    Organizations Owned or Controlled by
    Them

    3403.602 Exceptions.

    Exceptions under FAR 3.601 must be
    approved by the HCA.

    SUBCHAPTER B—COMPETITION AND
    ACQUISITION PLANNING

    PART 3405—PUBLICIZING CONTRACT
    ACTIONS

    Subpart 3405.2—Synopses of Proposed
    Contract Actions

    Sec.

    3405.202 Exceptions.

    3405.203 Publicizing and response time.

    3405.205 Special situations.

    3405.207 Preparation and transmittal of
    synopses.

    3405.270 Notices to perform market
    surveys.

    Subpart 3405.5—Paid Advertisements
    3405.502 Authority.

    Authority: 5 U.S.C. 301 and 20 U.S.C.
    1018a.

    Subpart 3405.2—Synopses of
    Proposed Contract Actions

    3405.202 Exceptions.

    (a)(15) FSA—Issuance of a synopsis is
    not required when the firm to be
    solicited has previously provided a
    module for the system under a contract
    that contained cost, schedule, and
    performance goals and the contractor
    met those goals.

    3405.203 Publicizing and response time.

    (c) FSA—Notwithstanding other
    provisions of the FAR, a bid or proposal
    due date of less than 30 days is
    permitted after issuance of a synopsis
    for acquisitions for noncommercial
    items. However, if time permits, a bid or
    proposal due date that affords potential
    offerors reasonable time to respond and
    fosters quality submissions should be
    established.

    3405.205 Special situations.

    (g) FSA—Module of a previously
    awarded system. Federal Student Aid
    must satisfy the publication
    requirements for sole source and
    competitive awards for a module of a
    previously awarded system by
    publishing a notice of intent on the
    government wide point of entry, not less
    than 30 days before issuing a
    solicitation. This notice is not required
    if a contractor who is to be solicited to
    submit an offer previously provided a
    module for the system under a contract
    that contained cost, schedule, and
    performance goals, and the contractor
    met those goals.

    3405.207 Preparation and transmittal of
    synopses.

    (c) FSA—In Phase One of a Two-
    Phase Source Selection as described in
    3415.302–70, the contracting officer
    must publish a notice in accordance
    with FAR 5.2, except that the notice
    must include only the following:

    (1) Notification that the procurement
    will be conducted using the specific
    procedures included in 3415.302–70.

    (2) A general notice of the scope or
    purpose of the procurement that
    provides sufficient information for
    sources to make informed business
    decisions regarding whether to
    participate in the procurement.

    (3) A description of the basis on
    which potential sources are to be
    selected to submit offers in the second
    phase.

    (4) A description of the information
    that is to be required to be submitted if
    the request for information is made
    separate from the notice.

    (5) Any other information that the
    contracting officer deems is appropriate.

    (h) FSA—When modular contracting
    authority is being utilized, the notice
    must invite comments and support if it
    is believed that modular contracting is
    not suited for the requirement being
    procured.

    3405.270 Notices to perform market
    surveys.

    (a) If a sole source contract is
    anticipated, the issuance of a notice of
    a proposed contract action that is
    detailed enough to permit the
    submission of meaningful responses and
    the subsequent evaluation of the
    responses by the Federal government
    constitutes an acceptable market survey.

    (b) The notice must include—

    (1) A clear statement of the supplies
    or services to be procured;

    (2) Any capabilities or experience
    required of a contractor and any other
    factor relevant to those requirements;

    (3) A statement that all responsible
    sources submitting a proposal, bid, or
    quotation must be considered;

    (4) Name, business address, and
    phone number of the Contracting
    Officer; and

    (5) Justification for a sole source and
    the identity of that source.

    Subpart 3405.5—Paid Advertisements


    3405.502 Authority.

    Authority to approve publication of
    paid advertisements in newspapers is
    delegated to the HCA.

    PART 3406—COMPETITION
    REQUIREMENTS

    Sec.

    3406.001 Applicability.

    Subpart 3406.3—Other Than Full and Open
    Competition

    3406.302–5 Authorized or required by
    statute.

    Subpart 3406.5—Competition Advocates
    3406.501 Requirement.

    Authority: 5 U.S.C. 301; 41 U.S.C. 418(a)
    and (b); and 20 U.S.C. 1018a.

    3406.001 Applicability.

    (b) FSA—This part does not apply to
    proposed contracts and contracts
    awarded based on other than full and
    open competition when the conditions
    for successive systems modules set forth
    in 3417.70 are utilized.

    Subpart 3406.3—Other Than Full and
    Open Competition

    3406.302–5 Authorized or required by
    statute.

    (a) Authority.

    (1) Citations: 20 U.S.C. 1018a.

    (2) Noncompetitive awards of
    successive modules for systems are
    permitted when the conditions set forth
    in 3417.70 are met.

    Subpart 3406.5—Competition
    Advocates

    3406.501 Requirement.

    The Competition Advocate for the
    Department is the Deputy Director,
    Contracts and Acquisitions
    Management.

    PART 3408—REQUIRED SOURCES OF
    SUPPLIES AND SERVICES

    Subpart 3408.8—Acquisition of Printing and
    Related Supplies

    Sec.

    3408.870 Printing clause.

    3408.871 Paperwork reduction.

    Authority: 5 U.S.C. 301, unless otherwise
    noted.

    Subpart 3408.8—Acquisition of
    Printing and Related Supplies

    Authority: 44 U.S.C. 501.

    3408.870 Printing clause.

    The contracting officer must insert the
    clause at 3452.208–71 (Printing) in all
    solicitations and contracts other than
    purchase orders.

    3408.871 Paperwork reduction.

    The contracting officer must insert the
    clause at 3452.208–72 (Paperwork
    Reduction Act) in all solicitations and
    contracts in which the contractor will
    develop forms or documents for public
    use.

    PART 3409—CONTRACTOR
    QUALIFICATIONS

    Subpart 3409.4—Debarment, Suspension,
    and Ineligibility

    Sec.

    3409.400 Scope of subpart.

    3409.401 Applicability.

    3409.403 Definitions.

    3409.406 Debarment.

    3409.406–3 Procedures.

    3409.407 Suspension.

    3409.407–3 Procedures.

    Subpart 3409.5—Organizational and
    Consultant Conflicts of Interest

    3409.502 Applicability.

    3409.503 Waiver.

    3409.506 Procedures.

    3409.507 Solicitation provision and
    contract clause.

    3409.507–1 Solicitation provision.

    3409.507–2 Contract clause.

    3409.570 Certification at or below the
    simplified acquisition threshold.

    Authority: 5 U.S.C. 301.

    Subpart 3409.4—Debarment,
    Suspension, and Ineligibility

    3409.400 Scope of subpart.

    This subpart implements FAR subpart
    9.4 by detailing policies and procedures
    governing the debarment and
    suspension of organizations and
    individuals from participating in ED
    contracts and subcontracts.

    3409.401 Applicability.

    This subpart applies to all
    procurement debarment and suspension
    actions initiated by ED. This subpart
    does not apply to nonprocurement
    debarment and suspension.

    3409.403 Definitions.

    The SPE is designated as the
    ‘‘debarring official’’ and ‘‘suspending
    official’’ as defined in FAR 9.403 and is
    designated as the agency official
    authorized to make the decisions
    required in FAR 9.406 and FAR 9.407.

    3409.406 Debarment.

    3409.406–3 Procedures.

    (b) Decision making process.

    (1) Contractors proposed for
    debarment may submit, in person, in
    writing, or through a representative,
    information and argument in opposition
    to the proposed debarment. The
    contractor must submit additional
    information within 30 days of receipt of
    the notice of proposal to debar, as
    described in FAR 9.406–3(c).

    (2) In actions not based upon a
    conviction or civil judgment, if the
    contractor’s submission in opposition
    raises a genuine dispute over facts
    material to the proposed debarment, the
    contractor may request a fact-finding
    conference. If the Debarring Official
    determines that there is a genuine
    dispute of material fact, the Debarring
    Official will conduct fact-finding and
    base the decision in accordance with
    FAR 9.406–3(b)(2) and (d)–(f).

    3409.407 Suspension.

    3409.407–3 Procedures.

    (b) Decision making process.

    (1) Contractors suspended in
    accordance with FAR 9.407 may submit,
    in person, in writing, or through a
    representative, information and
    argument in opposition to the
    suspension. The contractor must submit
    this information and argument within
    30 days of receipt of the notice of
    suspension, as described in FAR 9.407–
    3(c).

    (2) In actions not based upon an
    indictment, if the contractor’s
    submission in opposition raises a
    genuine dispute over facts material to
    the suspension and if no determination
    has been made, on the basis of
    Department of Justice advice, that
    substantial interests of the Government
    in pending or contemplated legal
    proceedings based on the same facts as
    the suspension would be prejudiced, the
    contractor may request a fact-finding
    conference. The Suspending Official
    will conduct fact-finding and base the
    decision in accordance with FAR 9.407–
    3(b)(2) and (d) through (e).

    Subpart 3409.5—Organizational and
    Consultant Conflicts of Interest

    3409.502 Applicability.

    This subpart applies to all ED
    contracts except contracts with other
    Federal agencies. However, this subpart
    applies to contracts with the Small
    Business Administration (SBA) under
    the 8(a) program.

    3409.503 Waiver.

    The HCA is designated as the official
    who may waive any general rule or
    procedure of FAR subpart 9.5 or of this
    subpart.

    3409.506 Procedures.

    (a) If the effects of a potential or actual
    conflict of interest cannot be avoided,
    neutralized, or mitigated before award,
    the prospective contractor is not eligible
    for that award. If a potential or actual
    conflict of interest is identified after
    award and the effects cannot be
    avoided, neutralized, or mitigated, ED
    will terminate the contract unless the
    HCA deems continued performance to
    be in the best interest of the Federal
    government.

    (b) The HCA is designated as the
    official to conduct reviews and make
    final decisions under FAR 9.506(b) and
    (c).

    3409.507 Solicitation provision and
    contract clause.

    3409.507–1 Solicitation provision.

    The contracting officer must insert the
    provision in 3452.209–70 (Conflict of
    interest certification) in all solicitations
    for services above the simplified
    acquisition threshold.

    3409.507–2 Contract clause.

    The contracting officer must insert the
    clause at 3452.209–71 (Conflict of
    interest) in all contracts for services
    above the simplified acquisition
    threshold. The clause is applicable to
    each order for services over the
    simplified acquisition threshold under
    task order contracts.

    3409.570 Certification at or below the
    simplified acquisition threshold.

    By accepting any contract, including
    orders against any Schedule or
    Government-wide Acquisition Contract
    (GWAC), with the Department at or
    below the simplified acquisition
    threshold:

    (a) The contractor warrants that, to the
    best of the contractor’s knowledge and
    belief, there are no relevant facts or
    circumstances that would give rise to an
    organizational conflict of interest, as
    defined in FAR subpart 2.1, or that the
    contractor has disclosed all such
    relevant information.

    (b) The contractor agrees that if an
    actual or potential organizational
    conflict of interest is discovered after
    award, the contractor will make an
    immediate full disclosure in writing to
    the contracting officer. This disclosure
    must include a description of actions
    that the contractor has taken or proposes
    to take, after consultation with the
    contracting officer, to avoid, mitigate, or
    neutralize the actual or potential
    conflict.

    (c) The contractor agrees that:


    (1) The Government may terminate
    this contract for convenience, in whole
    or in part, if such termination is
    necessary to avoid an organizational
    conflict of interest.

    2) The Government may terminate
    this contract for default or pursue other
    remedies permitted by law or this
    contract if the contractor was aware or
    should have been aware of a potential
    organizational conflict of interest prior
    to award, or discovers or should have
    discovered an actual or potential
    conflict after award, and does not
    disclose, or misrepresents, relevant
    information to the contracting officer
    regarding the conflict.

    (d) The contractor further agrees to
    insert provisions that substantially
    conform to the language of this section,
    including this paragraph (d), in any
    subcontract or consultant agreement
    hereunder.

    PART 3412—ACQUISITION OF
    COMMERCIAL ITEMS

    Subpart 3412.2—Special Requirements for
    the Acquisition of Commercial Items

    Sec.

    3412.203 Procedures for solicitation,
    evaluation, and award.

    Subpart 3412.3—Solicitation Provisions and
    Contract Clauses for the Acquisition of
    Commercial Items

    3412.302 Tailoring of provisions and
    clauses for the acquisition of commercial
    items.

    Authority: 5 U.S.C. 301 and 20 U.S.C.
    1018a.

    Subpart 3412.2—Special Requirements
    for the Acquisition of Commercial
    Items

    3412.203 Procedures for solicitation,
    evaluation, and award.

    As specified in 3413.003, simplified
    acquisition procedures for commercial
    items may be used without regard to any
    dollar or timeframe limitations
    described in FAR 13.5 when acquired
    by the FSA and used for its purposes.

    Subpart 3412.3—Solicitation
    Provisions and Contract Clauses for
    the Acquisition of Commercial Items

    3412.302 Tailoring of provisions and
    clauses for the acquisition of commercial
    items.

    The HCA is authorized to approve
    waivers in accordance with FAR
    12.302(c). The approved waiver may be
    either for an individual contract or for
    a class of contracts for the specific item.
    The approved waiver and supporting
    documentation must be incorporated
    into the contract file.

    SUBCHAPTER C—CONTRACTING
    METHODS AND CONTRACT TYPES
    PART 3413—SIMPLIFIED ACQUISITION
    PROCEDURES

    Sec.

    3413.000 Scope of part.

    3413.003 Policy.

    Subpart 3413.3—Simplified Acquisition
    Methods

    3413.303 Blanket purchase agreements
    (BPAs).

    3413.303–5 Purchases under BPAs.

    Authority: 5 U.S.C. 301 and 20 U.S.C.
    1018a.

    3413.000 Scope of part.

    3413.003 Policy.

    (c)(1)(iii) FSA—FSA may use
    simplified acquisition procedures for
    commercial items without regard to any
    dollar or timeframe limitations
    described in FAR 13.5.

    (iv) FSA—FSA may use simplified
    acquisition procedures for noncommercial
    items up to $1,000,000
    when the acquisition is set aside for
    small businesses, pursuant to 3419.502.

    Subpart 3413.3—Simplified Acquisition
    Methods

    3413.303 Blanket purchase agreements
    (BPAs).

    3413.303–5 Purchases under BPAs.

    (b) Individual purchases under
    blanket purchase agreements for
    commercial items may exceed the
    simplified acquisition threshold but
    shall not exceed the threshold for the
    test program for certain commercial
    items in FAR 13.500(a).

    PART 3414—SEALED BIDDING

    Subpart 3414.4—Opening of Bids and
    Award of Contract

    Sec.

    3414.407 Mistakes in bids.

    3414.407–3 Other mistakes disclosed before
    award.

    Authority: 5 U.S.C. 301.

    Subpart 3414.4—Opening of Bids and
    Award of Contract

    3414.407 Mistakes in bids.

    3414.407–3 Other mistakes disclosed
    before award.

    Authority is delegated to the HCA to
    make determinations under FAR
    14.407–3(a) through (d).

    PART 3415—CONTRACTING BY
    NEGOTIATION

    Subpart 3415.2—Solicitation and Receipt of
    Proposals and Information

    Sec.

    3415.209 Solicitation provisions and
    contract clauses.

    Subpart 3415.3—Source Selection

    3415.302 Source selection objective.

    3415.302–70 Two-phase source selection.

    Subpart 3415.6—Unsolicited Proposals

    3415.605 Content of unsolicited proposals.

    3415.606 Agency procedures.

    Authority: 5 U.S.C. 301 and 20 U.S.C.
    1018a.

    Subpart 3415.2—Solicitation and
    Receipt of Proposals and Information

    3415.209 Solicitation provisions and
    contract clauses.

    (a) The Freedom of Information Act
    (FOIA), 5 U.S.C. 552, may require ED to
    release data contained in an offeror’s
    proposal even if the offeror has
    identified the data as restricted in
    accordance with the provision in FAR
    52.215–1(e). The solicitation provision
    in 3452.215–70 (Release of restricted
    data) informs offerors that ED is
    required to consider release of restricted
    data under FOIA and Executive Order
    12600.

    (b) The contracting officer must insert
    the provision in 3452.215–70, in all
    solicitations that include a reference to
    FAR 52.215–1 (Instructions to
    Offerors—Competitive Acquisitions).

    Subpart 3415.3—Source Selection

    3415.302 Source selection objective.

    3415.302–70 Two-phase source selection.

    (a) FSA—May utilize a two-phase
    process to solicit offers and select a
    source for award. The contracting officer
    can choose to use this optional method
    of solicitation when deemed beneficial
    to the FSA in meeting its needs as a
    PBO.

    (b) Phase One.

    (1) The contracting officer must
    publish a notice in accordance with
    FAR 5.2, except that the notice must
    include limited information as specified
    in 3405.207.

    (2) Information Submitted by Offerors.
    Each offeror must submit basic
    information such as the offeror’s
    qualifications, the proposed conceptual
    approach, costs likely to be associated
    with the approach, and past
    performance data, together with any
    additional information requested by the
    contracting officer.

    (3) Selection for participating in
    second phase. The contracting officer
    must select the offerors that are eligible
    to participate in the second phase of the
    process. The contracting officer must
    limit the number of the selected offerors
    to the number of sources that the
    contracting officer determines is
    appropriate and in the best interests of
    the Federal government.

    (c) Phase Two.

    (1) The contracting officer must
    conduct the second phase of the source
    selection consistent with FAR 15.2 and
    15.3, except as provided by 3405.207.

    (2) Only sources selected in the first
    phase will be eligible to participate in
    the second phase.

    Subpart 3415.6—Unsolicited Proposals

    3415.605 Content of unsolicited
    proposals.

    (d) Each unsolicited proposal must
    contain the following certification:

    Unsolicited Proposal Certification by
    Offeror

    This is to certify, to the best of my
    knowledge and belief, that—

    a. This proposal has not been
    prepared under Federal government
    supervision;

    b. The methods and approaches stated
    in the proposal were developed by this
    offeror;

    c. Any contact with employees of the
    Department of Education has been
    within the limits of appropriate advance
    guidance set forth in FAR 15.604; and

    d. No prior commitments were
    received from Departmental employees
    regarding acceptance of this proposal.

    Date:
    ________________
    Organization:
    ________________
    Name:
    ________________
    Title:
    ________________
    (This certification must be signed by
    a responsible person authorized to enter
    into contracts on behalf of the
    organization.)


    3415.606 Agency procedures.

    (b)(1) The HCA or designee is the
    contact point to coordinate the receipt,
    control, and handling of unsolicited
    proposals.

    (2) Offerors must direct unsolicited
    proposals to the HCA.

    PART 3416—TYPES OF CONTRACTS

    Subpart 3416.3—Cost-Reimbursement
    Contracts

    Sec.

    3416.303 Cost-sharing contracts.

    3416.307 Contract clauses.

    Subpart 3416.4—Incentive Contracts

    3416.402 Application of predetermined,
    formula-type incentives.

    3416.402–2 Performance incentives.

    3416.470 Award-term contracting.

    Subpart 3416.6—Time-and-Materials, Labor-
    Hour, and Letter Contracts

    3416.603 Letter contracts.

    3416.603–3 Limitations.

    Authority: 5 U.S.C. 301 and 20 U.S.C.
    1018a.

    Subpart 3416.3—Cost-Reimbursement
    Contracts

    3416.303 Cost-sharing contracts.

    (b) Application. Costs that are not
    reimbursed under a cost-sharing
    contract may not be charged to the
    Federal government under any other
    grant, contract, cooperative agreement,
    or other arrangement.

    3416.307 Contract clauses.

    (a) If the clause at FAR 52.216–7
    (Allowable Cost and Payment) is used in
    a contract with a hospital, the
    contracting officer must modify the
    clause by deleting the words ‘‘Subpart
    31.2 of the Federal Acquisition
    Regulation (FAR)’’ from paragraph (a)
    and substituting ‘‘34 CFR part 74,
    Appendix E.’’

    (b) The contracting officer must insert
    the clause at 3452.216–70 (Additional
    cost principles) in all solicitations of
    and resultant cost-reimbursement
    contracts with nonprofit organizations
    other than educational institutions,
    hospitals, or organizations listed in
    Attachment C to Office of Management
    and Budget Circular A–122.

    Subpart 3416.4—Incentive Contracts

    3416.402 Application of predetermined,
    formula-type incentives.

    3416.402–2 Performance incentives.

    (b) Award-term contracting may be
    used for performance-based contracts or
    task orders. See 3416.470 for the
    definition of award-term contracting
    and implementation guidelines.

    3416.470 Award-term contracting.

    (a) Definition. Award-term contracting
    is a method, based upon a predetermined
    plan in the contract, to
    extend the contract term for superior
    performance and to reduce the contract
    term for substandard or poor
    performance.

    (b) Applicability. A Contracting
    Officer may authorize use of an award term
    incentive contract for acquisitions
    where the quality of contractor
    performance is of a critical or highly
    important nature. The basic contract
    term may be extended on the basis of
    the Federal government’s determination
    of the excellence of the contractor’s
    performance. Additional periods of
    performance, which are referred to
    herein as ‘‘award terms,’’ are available
    for possible award to the contractor. As
    award term(s) are awarded, each
    additional period of performance will
    immediately follow the period of
    performance for which the award term
    was granted. The contract may end at
    the base period of performance if the
    Federal government determines that the
    contractor’s performance does not
    reflect a level of performance as
    described in the award-term plan.
    Award-term periods may only be earned
    based on the evaluated quality of the
    performance of the contractor. Meeting
    the terms of the contract is not
    justification to award an award-term
    period. The use of an award-term plan
    does not exempt the contract from the
    requirements of FAR 17.207, with
    respect to performing due diligence
    prior to extending a contract term.

    (c) Approvals. The Contracting Officer
    must justify the use of an award-term
    incentive contract in writing. The
    award-term plan approving official will
    be appointed by the HCA.

    (d) Disputes. The Federal government
    unilaterally makes all decisions
    regarding award-term evaluations,
    points, methodology used to calculate
    points, and the degree of the
    contractor’s success.

    (e) Award-term limitations.

    (1) Award periods may be earned
    during the base period of performance
    and each option period, except the last
    option period. Award-term periods may
    not be earned during the final option
    year of any contract.

    (2) Award-term periods may not
    exceed twelve months.

    (3) The potential award-term periods
    will be priced, evaluated, and
    considered in the initial contract
    selection process.

    (f) Implementation of extensions or
    reduced contract terms.

    (1) An award term is contingent upon
    a continuing need for the supplies or
    services and the availability of funds.
    Award terms may be cancelled prior to
    the start of the period of performance at
    no cost to the Federal government if
    there is not a continued need or
    available funding.

    (2) The extension or reduction of the
    contract term is affected by a unilateral
    contract modification.

    (3) Award-term periods occur after the
    period for which the award term was
    granted. Award-term periods effectively
    move option periods to later contract
    performance periods.

    (4) Contractors have the right to
    decline the award of an award-term
    period. A contractor loses its ability to
    earn additional award terms if an earned
    Award-Term Period is declined.

    (5) Changes to the contract award term
    plan must be mutually agreed
    upon.

    (g) Clause. Insert a clause
    substantially the same as the clause at
    3452.216–71 (Award-term) in all
    solicitations and resulting contracts
    where an award-term incentive contract
    is anticipated.

    Subpart 3416.6—Time-and-Materials,
    Labor-Hour, and Letter Contracts

    3416.603 Letter contracts.

    3416.603–3 Limitations.

    If the HCA is to sign a letter contract
    as the contracting officer, the SPE signs
    the written determination under FAR
    16.603–3.

    PART 3417—SPECIAL CONTRACTING
    METHODS

    Subpart 3417.2—Options

    Sec.

    3417.204 Contracts.

    3417.207 Exercise of options.

    Subpart 3417.5—Interagency Acquisitions
    Under the Economy Act

    3417.502 General.

    Subpart 3417.7—Modular Contracting

    3417.70 Modular contracting.

    Authority: 31 U.S.C. 1535 and 20 U.S.C.
    1018a.

    Subpart 3417.2—Options

    3417.204 Contracts.

    (e) Except as otherwise provided by
    law, contract periods that exceed the
    five-year limitation specified in FAR
    17.204(e) must be approved by—

    (1) The HCA for individual contracts;
    or
    (2) The SPE for classes of contracts.

    3417.207 Exercise of options.

    If a contract provision allows an
    option to be exercised within a specified
    timeframe after funds become available,
    it must also specify that the date on
    which funds ‘‘become available’’ is the
    actual date funds become available to
    the contracting officer for obligation.
    (f)(2) The Federal government may
    accept price reductions offered by
    contractors at any time during contract
    performance. Acceptance of price
    reductions offered by contractors will
    not be considered renegotiations as
    identified in this subpart if they were
    not initiated or requested by the Federal
    government.

    Subpart 3417.5—Interagency
    Acquisitions Under the Economy Act

    3417.502 General.

    No other Federal department or
    agency may purchase property or
    services under contracts established or
    administered by FSA unless the
    purchase is approved by SPE for the
    requesting Federal department or
    agency.

    Subpart 3417.7—Modular Contracting

    3417.70 Modular contracting.

    (a) FSA—May incrementally conduct
    successive procurements of modules of
    overall systems. Each module must be
    useful in its own right or useful in
    combination with the earlier
    procurement modules. Successive
    modules may be procured on a sole
    source basis under the following
    circumstances:

    (1) Competitive procedures are used
    for awarding the contract for the first
    system module; and

    (2) The solicitation for the first
    module included the following:

    (i) A general description of the entire
    system that was sufficient to provide
    potential offerors with reasonable notice
    of the general scope of future modules;

    (ii) Other sufficient information to
    enable offerors to make informed
    business decisions to submit offers for
    the first module; and

    (iii) A statement that procedures, i.e.,
    the sole source awarding of follow-on
    modules, could be used for the
    subsequent awards.

    SUBCHAPTER D—SOCIOECONOMIC
    PROGRAMS

    PART 3419—SMALL BUSINESS
    PROGRAMS

    Subpart 3419.2—Policies

    Sec.

    3419.201 General policy.

    3419.201–70 Office of Small and
    Disadvantaged Business Utilization
    (OSDBU).

    Subpart 3419.5—Set-Asides for Small
    Business

    3419.502 Setting aside acquisitions.

    3419.502–4 Methods of conducting setasides.

    Authority: 5 U.S.C. 301 and 20 U.S.C.
    1018a.

    Subpart 3419.2—Policies

    3419.201 General policy.

    3419.201–70 Office of Small and
    Disadvantaged Business Utilization
    (OSDBU).

    The Office of Small and
    Disadvantaged Business Utilization
    (OSDBU), Office of the Deputy
    Secretary, is responsible for facilitating
    the implementation of the Small
    Business Act, as described in FAR
    19.201. The OSDBU develops rules,
    policy, procedures, and guidelines for
    the effective administration of ED’s
    small business program.

    Subpart 3419.5—Set-Asides for Small
    Business

    3419.502 Setting aside acquisitions.

    3419.502–4 Methods of conducting set asides.

    (a) Simplified acquisition procedures
    as described in FAR Part 13 for the
    procurement of noncommercial services
    for FSA requirements may be used
    under the following circumstances:

    (1) The procurement does not exceed
    $1,000,000;

    (2) The procurement is conducted as
    a small business set-aside pursuant to
    section 15(a) of the Small Business Act;

    (3) The price charged for supplies
    associated with the services are
    expected to be less than 20 percent of
    the total contract price;

    (4) The procurement is competitive;

    and

    (5) The procurement is not for
    construction.

    PART 3422—APPLICATION OF LABOR
    LAWS TO GOVERNMENT
    ACQUISITIONS

    Subpart 3422.10—Service Contract Act of
    1965, as Amended

    Sec.

    3422.1002 Statutory requirements.

    3422.1002–1 General.

    Authority: 5 U.S.C. 301 Subpart 3422.10—
    Service Contract Act of 1965, as Amended

    3422.1002 Statutory requirements.

    3422.1002–1 General.

    Consistent with 29 CFR 4.145,
    Extended term contracts, the five-year
    limitation set forth in the Service
    Contract Act of 1965, as amended
    (Service Contract Act), applies to each
    period of the contract individually, not
    the cumulative period of base and
    option periods. Accordingly, no contract
    subject to the Service Contract Act
    issued by the Department of Education
    will have a base period or option period
    that exceeds five years.

    PART 3424—PROTECTION OF
    PRIVACY AND FREEDOM OF
    INFORMATION

    Subpart 3424.1—Protection of Individual
    Privacy

    Sec.

    3424.103 Procedures.

    3424.170 Protection of human subjects.

    Subpart 3424.2—Freedom of Information
    Act

    3424.201 Authority.

    3424.203 Policy.

    Authority: 5 U.S.C. 301.

    Subpart 3424.1—Protection of
    Individual Privacy

    3424.103 Procedures.

    (a) If the Privacy Act of 1974 (Privacy
    Act) applies to a contract, the
    contracting officer must specify in the
    contract the disposition to be made of
    the system or systems of records upon
    completion of performance. For
    example, the contract may require the
    contractor to completely destroy the
    records, to remove personal identifiers,
    to turn the records over to ED, or to keep
    the records but take certain measures to
    keep the records confidential and
    protect the individual’s privacy.

    (b) If a notice of the system of records
    has not been published in the Federal
    Register
    , the contracting officer may
    proceed with the acquisition but must
    not award the contract until the notice
    is published, unless the contracting
    officer determines, in writing, that
    portions of the contract may proceed
    without maintaining information subject

    to the Privacy Act. In this case, the contracting officer may—

    (1) Award the contract, authorizing
    performance only of those portions not
    subject to the Privacy Act; and

    (2) After the notice is published and
    effective, authorize performance of the
    remainder of the contract.

    3424.170 Protection of human subjects.

    In this subsection, ‘‘Research’’ means
    a systematic investigation, including
    research development, testing and
    evaluation, designed to develop or
    contribute to generalizable knowledge.
    (34 CFR 97.102(d)) Research is
    considered to involve human subjects
    when a researcher obtains information
    about a living individual through
    intervention or interaction with the
    individual or obtains personally
    identifiable private information about
    an individual. Some categories of
    research are exempt under the
    regulations, and the exemptions are in
    34 CFR part 97.

    (a) The contracting officer must insert
    the provision in 3452.224–71 (Notice
    about research activities involving
    human subjects) in any solicitation
    where a resultant contract will include,
    or is likely to include, research activities
    involving human subjects covered
    under 34 CFR part 97.

    (b) The contracting officer must insert
    the clause at 3452.224–72 (Research
    activities involving human subjects) in
    any solicitation that includes the
    provision in 3452.224–71 (Notice about
    research activities involving human
    subjects) and in any resultant contract.

    Subpart 3424.2—Freedom of
    Information Act

    3424.201 Authority.

    The Department’s regulations
    implementing the Freedom of
    Information Act, 5 U.S.C. 552, are in 34
    CFR part 5.

    3424.203 Policy.

    (a) [Reserved]

    (b) The Department’s policy is to
    release all information incorporated into
    a contract and documents that result
    from the performance of a contract to
    the public under the Freedom of
    Information Act. The release or
    withholding of documents requested
    will be made on a case-by-case basis.
    Contracting officers must advise offerors
    and prospective contractors of the
    possibility that their submissions may
    be released under the Freedom of
    Information Act, not withstanding any
    restrictions that are included at the time
    of proposal submission. A clause
    substantially the same as the clause at
    3452.224–70 (Release of information
    under the Freedom of Information Act)
    must be included in all solicitations and
    contracts.

    PART 3425—FOREIGN ACQUISITION

    Subpart 3425.1—Buy American Act—
    Supplies

    Sec.

    3425.102 Exceptions.

    Authority: 5 U.S.C. 301.

    Subpart 3425.1—Buy American Act—
    Supplies

    3425.102 Exceptions.

    The HCA approves determinations
    under FAR 25.103(b)(2)(i).

    SUBCHAPTER E—GENERAL
    CONTRACTING REQUIREMENTS

    PART 3427—PATENTS, DATA, AND
    COPYRIGHTS

    Subpart 3427.4—Rights in Data and
    Copyrights

    Sec.

    3427.409 Solicitation provisions and
    contract clauses.

    Authority: 5 U.S.C. 301.

    Subpart 3427.4—Rights in Data and
    Copyrights

    3427.409 Solicitation provisions and
    contract clauses.

    (a) The contracting officer must insert
    the clause at 3452.227–70 (Publication
    and publicity) in all solicitations and
    contracts other than purchase orders.

    (b) The contracting officer must insert
    the clause at 3452.227–71 (Advertising
    of awards) in all solicitations and
    contracts other than purchase orders.

    (c) The contracting officer must insert
    the clause at 3452.227–72 (Use and nondisclosure
    agreement) in all contracts
    over the simplified acquisition
    threshold, and in contracts under the
    simplified acquisition threshold, as
    appropriate.

    (d) The contracting officer must insert
    the clause at 3452.227–73 (Limitations
    on the use or disclosure of Government furnished
    information marked with
    restrictive legends) in all contracts of
    third party vendors who require access
    to Government-furnished information
    including other contractors’ technical
    data, proprietary information, or
    software.

    PART 3428—BONDS AND INSURANCE

    Subpart 3428.3—Insurance

    Sec.

    3428.311 Solicitation provision and
    contract clause on liability insurance
    under cost-reimbursement contracts.

    3428.311–2 Contract clause.

    Authority: 5 U.S.C. 301.

    Subpart 3428.3—Insurance
    3428.311 Solicitation provision and
    contract clause on liability insurance under
    cost-reimbursement contracts.

    3428.311–2 Contract clause.

    The contracting officer must insert the
    clause at 3452.228–70 (Required
    insurance) in all solicitations and
    resultant cost-reimbursement contracts.

    PART 3432—CONTRACT FINANCING

    Subpart 3432.4—Advance Payments for
    Non-Commercial Items

    Sec.

    3432.402 General.

    3432.407 Interest.

    Subpart 3432.7—Contract Funding

    3432.705 Contract clauses.

    3432.705–2 Clauses for limitation of cost or
    funds.

    Authority: 5 U.S.C. 301.

    Subpart 3432.4—Advance Payments
    for Non-Commercial Items

    3432.402 General.

    The HCA is delegated the authority to
    make determinations under FAR
    32.402(c)(1)(iii). This authority may not
    be redelegated.

    3432.407 Interest.

    The HCA is designated as the official
    who may authorize advance payments
    without interest under FAR 32.407(d).

    Subpart 3432.7—Contract Funding

    3432.705 Contract clauses.

    3432.705–2 Clauses for limitation of cost
    or funds.

    (a) The contracting officer must insert
    the clause at 3452.232–70 (Limitation of
    cost or funds) in all solicitations and
    contracts where a Limitation of cost or
    Limitation of funds clause is utilized.

    (b) The contracting officer must insert
    the provision in 3452.232–71
    (Incremental funding) in a solicitation if
    a cost-reimbursement contract using
    incremental funding is contemplated.

    PART 3433—PROTESTS, DISPUTES,
    AND APPEALS

    Subpart 3433.1—Protests

    Sec.

    3433.103 Protests to the agency.

    Authority: 5 U.S.C. 301.

    Subpart 3433.1—Protests

    3433.103 Protests to the agency.

    (f)(3) The contracting officer’s HCA
    must approve the justification or
    determination to continue performance.
    The criteria in FAR 33.103(f)(3) must be
    followed in making the determination to
    award a contract before resolution of a
    protest.

    SUBCHAPTER F—SPECIAL CATEGORIES
    OF CONTRACTING

    PART 3437—SERVICE CONTRACTING

    Subpart 3437.1—Service Contracts—
    General

    Sec.

    3437.102 Policy.

    3437.170 Observance of administrative
    closures

    Subpart 3437.2—Advisory and Assistance
    Services

    3437.270 Services of consultants clauses.

    Subpart 3437.6—Performance-Based
    Acquisition

    3437.670 Contract type.

    Authority: 5 U.S.C. 301 and 20 U.S.C.
    1018a.

    Subpart 3437.1—Service Contracts—
    General

    3437.102 Policy.

    If a service contract requires one or
    more end items of supply, FAR Subpart
    37.1 and this subpart apply only to the
    required services.

    3437.170 Observance of administrative
    closures.

    The contracting officer must insert the
    clause at 3452.237–71 (Observance of
    administrative closures) in all
    solicitations and contracts for services.

    Subpart 3437.2—Advisory and
    Assistance Services

    3437.270 Services of consultants clause.

    The contracting officer must insert the
    clause at 3452.237–70 (Services of
    consultants) in all solicitations and
    resultant cost-reimbursement contracts
    that do not provide services to FSA.

    Subpart 3437.6—Performance-Based
    Acquisition

    3437.670 Contract type.

    Award-term contracting may be used
    for performance-based contracts and
    task orders that provide opportunities
    for significant improvements and
    benefits to the Department. Use of
    award-term contracting must be
    approved in advance by the HCA.

    PART 3439—ACQUISITION OF
    INFORMATION TECHNOLOGY

    Subpart 3439.70—Department
    Requirements for Acquisition of Information
    Technology

    Sec.

    3439.701 Internet Protocol version 6.

    3439.702 Department security
    requirements.

    3439.703 Federal desktop core
    configuration (FDCC) compatibility.

    Authority: 5 U.S.C. 301 and 20 U.S.C.
    1018a.

    Subpart 3439.70—Department
    Requirements for Acquisition of
    Information Technology

    3439.701 Internet Protocol version 6.

    The contracting officer must insert the
    clause at 3452.239–70 (Internet protocol
    version 6 (IPv6)) in all solicitations and
    resulting contracts for hardware and
    software.

    3439.702 Department security
    requirements.

    The contracting officer must include
    the solicitation provision in 3452.239–
    71 (Notice to offerors of Department
    security requirements) and the clause at
    3452.239–72 (Department security
    requirements) when contractor
    employees will have access to
    Department-controlled facilities or
    space, or when the work (wherever
    located) involves the design, operation,
    repair, or maintenance of information
    systems and access to sensitive but
    unclassified information.

    3439.703 Federal desktop core
    configuration (FDCC) compatibility.

    The contracting officer must include
    the clause at 3452.239–73 (Federal
    desktop core configuration (FDCC)
    compatibility) in all solicitations and
    contracts where software will be
    developed, maintained, or operated on
    any system using the FDCC
    configuration.

    SUBCHAPTER G—CONTRACT
    MANAGEMENT

    PART 3442—CONTRACT
    ADMINISTRATION AND AUDIT
    SERVICES

    Subpart 3442.70—Contract Monitoring

    Sec.

    3442.7001 Litigation and claims clause.

    3442.7002 Delays.

    Subpart 3442.71—Accessibility of Meetings,
    Conferences, and Seminars to Persons with
    Disabilities

    3442.7101 Policy and clause.

    Authority: 5 U.S.C. 301.

    Subpart 3442.70—Contract Monitoring

    3442.7001 Litigation and claims clause.

    The contracting officer must insert the
    clause at 3452.242–70 (Litigation and
    claims) in all solicitations and resultant
    cost-reimbursement contracts.

    3442.7002 Delays.

    The contracting officer must insert the
    clause at 3452.242–71 (Notice to the
    Government of delays) in all
    solicitations and contracts other than
    purchase orders.

    Subpart 3442.71—Accessibility of
    Meetings, Conferences, and Seminars
    to Persons with Disabilities

    3442.7101 Policy and clause.

    (a) It is the policy of ED that all
    meetings, conferences, and seminars be
    accessible to persons with disabilities.

    (b) The contracting officer must insert
    the clause at 3452.242–73 (Accessibility
    of meetings, conferences, and seminars
    to persons with disabilities) in all
    solicitations and contracts..

    PART 3443—CONTRACT
    MODIFICATIONS

    Subpart 3443.1—General

    Sec.

    3443.107 Contract clause.

    Authority: 5 U.S.C. 301.

    Subpart 3443.1—General

    3443.107 Contract clause.

    The contracting officer must insert a
    clause substantially the same as
    3452.243–70 (Key personnel) in all
    solicitations and resultant cost reimbursement
    contracts in which it will be essential for the contracting
    officer to be notified that a change of
    designated key personnel is to take
    place by the contractor.

    PART 3445—GOVERNMENT
    PROPERTY

    Subpart 3445.4—Contractor Use and Rental
    of Government Property

    Sec.

    3445.405 Contracts with foreign
    governments or international
    organizations.

    Authority: 5 U.S.C. 301.

    Subpart 3445.4—Contractor Use and
    Rental of Government Property

    3445.405 Contracts with foreign
    governments or international organizations.

    Requests by, or for the benefit of,
    foreign governments or international
    organizations to use ED production and
    research property must be approved by
    the HCA. The HCA must determine the
    amount of cost to be recovered or rental
    charged, if any, based on the facts and
    circumstances of each case.

    PART 3447—TRANSPORTATION

    Subpart 3447.7—Foreign Travel

    Sec.

    3447.701 Foreign travel clause.

    Authority: 5 U.S.C. 301.

    Subpart 3447.7—Foreign Travel

    3447.701 Foreign travel clause.

    The contracting officer must insert the
    clause at 3452.247–70 (Foreign travel) in
    all solicitations and resultant cost reimbursement
    contracts.

    SUBCHAPTER H—CLAUSES AND FORMS
    PART 3452—SOLICITATION
    PROVISIONS AND CONTRACT
    CLAUSES

    Subpart 3452.2—Text of Provisions and
    Clauses

    Sec.

    3452.201–70 Contracting Officer’s
    Representative (COR).

    3452.202–1 Definitions—Department of
    Education.

    3452.208–71 Printing.

    3452.208–72 Paperwork Reduction Act.

    3452.209–70 Conflict of interest.
    certification.

    3452.209–71 Conflict of interest.

    3452.215–70 Release of restricted data.

    3452.216–70 Additional cost principles.

    3452.216–71 Award-Term.

    3452.224–70 Release of information under the Freedom of Information Act.

    3452.224–71 Notice about research
    activities involving human subjects.

    3452.224–72 Research activities involving
    human subjects.

    3452.227–70 Publication and publicity.

    3452.227–71 Advertising of awards.

    3452.227–72 Use and non-disclosure
    agreement.

    3452.227–73 Limitations on the use or
    disclosure of Government-furnished
    information marked with restrictive
    legends.

    3452.228–70 Required insurance.

    3452.232–70 Limitation of cost or funds.

    3452.232–71 Incremental funding.

    3452.237–70 Services of consultants.

    3452.237–71 Observance of administrative
    closures.

    3452.239–70 Internet protocol version 6
    (IPv6).

    3452.239–71 Notice to offerors of
    Department security requirements.

    3452.239–72 Department security
    requirements.

    3452.239–73 Federal desktop core
    configuration (FDCC) compatibility.

    3452.242–70 Litigation and claims.

    3452.242–71 Notice to the Government of
    delays.

    3452.242–73 Accessibility of meetings,
    conferences, and seminars to persons
    with disabilities.

    3452.243–70 Key personnel.

    3452.247–70 Foreign travel.

    Authority: 5 U.S.C. 301.

    Subpart 3452.2—Text of Provisions
    and Clauses

    3452.201–70 Contracting Officer’s
    Representative (COR).

    As prescribed in 3401.670–3, insert a
    clause substantially the same as:

    Contracting officer′s Representative (COR)
    (MAR 2011)

    (a) The Contracting Officer’s
    Representative (COR) is responsible for the
    technical aspects of the project, technical
    liaison with the contractor, and any other
    responsibilities that are specified in the
    contract. These responsibilities include
    inspecting all deliverables, including reports,
    and recommending acceptance or rejection to
    the contracting officer.

    (b) The COR is not authorized to make any
    commitments or otherwise obligate the
    Government or authorize any changes that
    affect the contract price, terms, or conditions.
    Any contractor requests for changes shall be
    submitted in writing directly to the
    contracting officer or through the COR. No
    such changes shall be made without the
    written authorization of the contracting
    officer.

    (c) The COR’s name and contact
    information:

    (d) The COR may be changed by the
    Government at any time, but notification of
    the change, including the name and address
    of the successor COR, will be provided to the
    contractor by the contracting officer in
    writing.

    (End of Clause)

    3452.202–1 Definitions—Department of
    Education.

    As prescribed in 3402.201, insert the
    following clause in solicitations and
    contracts in which the clause at FAR
    52.202–1 is required.

    Definitions—Department of Education (MAR
    2011)

    (a) The definitions at FAR 2.101 are
    appended with those contained in Education
    Department Acquisition Regulations (EDAR)
    3402.101.

    (b) The EDAR is available via the Internet
    at http://www.ed.gov/policy/fund/reg/
    clibrary/edar.html.

    (End of Clause)

    3452.208–71 Printing.

    As prescribed in 3408.870, insert the
    following clause in all solicitations and
    contracts other than purchase orders:
    Printing (MAR 2011)
    Unless otherwise specified in this contract,
    the contractor shall not engage in, nor
    subcontract for, any printing (as that term is
    defined in Title I of the Government Printing
    and Binding Regulations in effect on the
    effective date of this contract) in connection
    with the performance of work under this
    contract; except that performance involving
    the duplication of fewer than 5,000 units of
    any one page, or fewer than 25,000 units in
    the aggregate of multiple pages, shall not be
    deemed to be printing. A unit is defined as
    one side of one sheet, one color only (with
    black counting as a color), with a maximum
    image size of 103⁄4 by 141⁄4 inches on a
    maximum paper size of 11 by 17 inches.
    Examples of counting the number of units:
    black plus one additional color on one side
    of one page counts as two units. Three colors
    (including black) on two sides of one page
    count as six units.

    (End of Clause)

    3452.208–72 Paperwork Reduction Act.

    As prescribed in 3408.871, insert the
    following clause in all relevant
    solicitations and contracts:
    Paperwork Reduction Act (MAR 2011)

    (a) The Paperwork Reduction Act of 1995
    applies to contractors that collect information for use or disclosure by the Federal
    government. If the contractor will collect
    information requiring answers to identical
    questions from 10 or more people, no plan,
    questionnaire, interview guide, or other
    similar device for collecting information may
    be used without first obtaining clearance
    from the Chief Acquisition Officer (CAO) or
    the CAO’s designee within the Department of
    Education (ED) and the Office of
    Management and Budget (OMB). Contractors
    and Contracting Officers’ Representatives
    shall be guided by the provisions of 5 CFR
    part 1320, Controlling Paperwork Burdens on
    the Public, and should seek the advice of the
    Department’s Paperwork Clearance Officer to
    determine the procedures for acquiring CAO
    and OMB clearance.

    (b) The contractor shall obtain the required
    clearances through the Contracting Officer’s
    Representative before expending any funds
    or making public contacts for the collection
    of information described in paragraph (a) of
    this clause. The authority to expend funds
    and proceed with the collection shall be in
    writing by the contracting officer. The
    contractor must plan at least 120 days for
    CAO and OMB clearance. Excessive delay
    caused by the Government that arises out of
    causes beyond the control and without the
    fault or negligence of the contractor will be
    considered in accordance with the Excusable
    Delays or Default clause of this contract.

    (End of Clause)

    3452.209–70 Conflict of interest
    certification.

    As prescribed in 3409.507–1, insert
    the following provision in all
    solicitations anticipated to result in
    contract actions for services above the
    simplified acquisition threshold:

    Conflict of Interest Certification (MAR 2011)

    (a)(1) The contractor, subcontractor,
    employee, or consultant, by signing the form
    in this clause, certifies that, to the best of its
    knowledge and belief, there are no relevant
    facts or circumstances that could give rise to
    an organizational or personal conflict of
    interest, (see FAR Subpart 9.5 for
    organizational conflicts of interest) (or
    apparent conflict of interest), for the
    organization or any of its staff, and that the
    contractor, subcontractor, employee, or
    consultant has disclosed all such relevant
    information if such a conflict of interest
    appears to exist to a reasonable person with
    knowledge of the relevant facts (or if such a
    person would question the impartiality of the
    contractor, subcontractor, employee, or
    consultant). Conflicts may arise in the
    following situations:

    (i) Unequal access to information. A
    potential contractor, subcontractor,
    employee, or consultant has access to nonpublic
    information through its performance
    on a government contract.

    (ii) Biased ground rules. A potential
    contractor, subcontractor, employee, or
    consultant has worked, in one government
    contract, or program, on the basic structure
    or ground rules of another government
    contract.

    (iii) Impaired objectivity. A potential
    contractor, subcontractor, employee, or
    consultant, or member of their immediate
    family (spouse, parent, or child) has financial
    or other interests that would impair, or give
    the appearance of impairing, impartial
    judgment in the evaluation of government
    programs, in offering advice or
    recommendations to the government, or in
    providing technical assistance or other
    services to recipients of Federal funds as part
    of its contractual responsibility. ‘‘Impaired
    objectivity
    ’’ includes but is not limited to the
    following situations that would cause a
    reasonable person with knowledge of the
    relevant facts to question a person’s
    objectivity:

    (A) Financial interests or reasonably
    foreseeable financial interests in or in
    connection with products, property, or
    services that may be purchased by an
    educational agency, a person, organization,
    or institution in the course of implementing
    any program administered by the
    Department;

    (B) Significant connections to teaching
    methodologies or approaches that might
    require or encourage the use of specific
    products, property, or services; or

    (C) Significant identification with
    pedagogical or philosophical viewpoints that
    might require or encourage the use of a
    specific curriculum, specific products,
    property, or services.

    (2) Offerors must provide the disclosure
    described above on any actual or potential
    conflict of interest (or apparent conflict of
    interest) regardless of their opinion that such
    a conflict or potential conflict (or apparent
    conflict of interest) would not impair their
    objectivity.

    (3) In a case in which an actual or potential
    conflict (or apparent conflict of interest) is
    disclosed, the Department will take
    appropriate actions to eliminate or address
    the actual or potential conflict, including but
    not limited to mitigating or neutralizing the
    conflict, when appropriate, through such
    means as ensuring a balance of views,
    disclosure with the appropriate disclaimers,
    or by restricting or modifying the work to be
    performed to avoid or reduce the conflict. In
    this clause, the term ‘‘potential conflict’’
    means reasonably foreseeable conflict of
    interest.

    (b) The contractor, subcontractor,
    employee, or consultant agrees that if
    ‘‘impaired objectivity’’, or an actual or
    potential conflict of interest (or apparent
    conflict of interest) is discovered after the
    award is made, it will make a full disclosure
    in writing to the contracting officer. This
    disclosure shall include a description of
    actions that the contractor has taken or
    proposes to take to avoid, mitigate, or
    neutralize the actual or potential conflict (or
    apparent conflict of interest).

    (c) Remedies. The Government may
    terminate this contract for convenience, in
    whole or in part, if it deems such termination
    necessary to avoid the appearance of a
    conflict of interest. If the contractor was
    aware of a potential conflict of interest prior
    to award or discovered an actual or potential
    conflict after award and did not disclose or
    misrepresented relevant information to the
    contracting officer, the Government may
    terminate the contract for default, or pursue
    such other remedies as may be permitted by
    law or this contract. These remedies include
    imprisonment for up to five years for
    violation of 18 U.S.C. 1001 and fines of up
    to $5000 for violation of 31 U.S.C. 3802.
    Further remedies include suspension or
    debarment from contracting with the Federal
    government. The contractor may also be
    required to reimburse the Department for
    costs the Department incurs arising from
    activities related to conflicts of interest. An
    example of such costs would be those
    incurred in processing Freedom of
    Information Act requests related to a conflict
    of interest.

    (d) In cases where remedies short of
    termination have been applied, the
    contractor, subcontractor, employee, or
    consultant agrees to eliminate the
    organizational conflict of interest, or mitigate
    it to the satisfaction of the contracting officer.

    (e) The contractor further agrees to insert
    in any subcontract or consultant agreement
    hereunder, provisions that conform
    substantially to the language of this clause,
    including specific mention of potential
    remedies and this paragraph (e).

    (f) Conflict of Interest Certification.
    The offeror, [insert name of offeror], hereby
    certifies that, to the best of its knowledge and
    belief, there are no present or currently
    planned interests (financial, contractual,
    organizational, or otherwise) relating to the
    work to be performed under the contract or
    task order resulting from Request for
    Proposal No. [insert number] that would
    create any actual or potential conflict of
    interest (or apparent conflicts of interest)
    (including conflicts of interest for immediate
    family members: spouses, parents, children)
    that would impinge on its ability to render
    impartial, technically sound, and objective
    assistance or advice or result in it being given
    an unfair competitive advantage. In this
    clause, the term ‘‘potential conflict’’ means
    reasonably foreseeable conflict of interest.
    The offeror further certifies that it has and
    will continue to exercise due diligence in
    identifying and removing or mitigating, to the
    Government’s satisfaction, such conflict of
    interest (or apparent conflict of interest).

    Offeror’s Name________________

    RFP/Contract No________________

    Signature ________________

    Title ________________

    Date ________________

    (End of Clause)

    3452.209–71 Conflict of interest.

    As prescribed in 3409.507–2, insert
    the following clause in all contracts for
    services above the simplified
    acquisition threshold:

    Conflict of Interest (MAR 2011)

    (a)(1) The contractor, subcontractor,
    employee, or consultant, has certified that, to
    the best of its knowledge and belief, there are
    no relevant facts or circumstances that could
    give rise to an organizational or personal
    conflict of interest (see FAR Subpart 9.5 for
    organizational conflicts of interest) (or
    apparent conflict of interest) for the
    organization or any of its staff, and that the
    contractor, subcontractor, employee, or
    consultant has disclosed all such relevant
    information if such a conflict of interest
    appears to exist to a reasonable person with
    knowledge of the relevant facts (or if such a
    person would question the impartiality of the
    contractor, subcontractor, employee, or
    consultant). Conflicts may arise in the
    following situations:

    (i) Unequal access to information—A
    potential contractor, subcontractor,
    employee, or consultant has access to nonpublic
    information through its performance
    on a government contract.

    (ii) Biased ground rules—A potential
    contractor, subcontractor, employee, or
    consultant has worked, in one government
    contract, or program, on the basic structure
    or ground rules of another government
    contract.

    (iii) Impaired objectivity—A potential
    contractor, subcontractor, employee, or
    consultant, or member of their immediate
    family (spouse, parent, or child) has financial
    or other interests that would impair, or give
    the appearance of impairing, impartial
    judgment in the evaluation of government
    programs, in offering advice or
    recommendations to the government, or in
    providing technical assistance or other
    services to recipients of Federal funds as part
    of its contractual responsibility. ‘‘Impaired
    objectivity’’ includes but is not limited to the
    following situations that would cause a
    reasonable person with knowledge of the
    relevant facts to question a person’s
    objectivity:

    (A) Financial interests or reasonably
    foreseeable financial interests in or in
    connection with products, property, or
    services that may be purchased by an
    educational agency, a person, organization,
    or institution in the course of implementing
    any program administered by the
    Department;

    (B) Significant connections to teaching
    methodologies that might require or
    encourage the use of specific products,
    property, or services; or

    (C) Significant identification with
    pedagogical or philosophical viewpoints that
    might require or encourage the use of a
    specific curriculum, specific products,
    property, or services.

    (2) Offerors must provide the disclosure
    described above on any actual or potential
    conflict (or apparent conflict of interest) of
    interest regardless of their opinion that such
    a conflict or potential conflict (or apparent
    conflict of interest) would not impair their
    objectivity.

    (3) In a case in which an actual or potential
    conflict (or apparent conflict of interest) is
    disclosed, the Department will take
    appropriate actions to eliminate or address
    the actual or potential conflict (or apparent
    conflict of interest), including but not limited
    to mitigating or neutralizing the conflict,
    when appropriate, through such means as
    ensuring a balance of views, disclosure with
    the appropriate disclaimers, or by restricting
    or modifying the work to be performed to
    avoid or reduce the conflict. In this clause,
    the term ‘‘potential conflict’’ means
    reasonably foreseeable conflict of interest.

    (b) The contractor, subcontractor,
    employee, or consultant agrees that if
    ‘‘impaired objectivity’’, or an actual or
    potential conflict of interest (or apparent
    conflict of interest) is discovered after the
    award is made, it will make a full disclosure
    in writing to the contracting officer. This
    disclosure shall include a description of
    actions that the contractor has taken or
    proposes to take, after consultation with the
    contracting officer, to avoid, mitigate, or
    neutralize the actual or potential conflict (or
    apparent conflict of interest).

    (c) Remedies. The Government may
    terminate this contract for convenience, in
    whole or in part, if it deems such termination
    necessary to avoid the appearance of a
    conflict of interest. If the contractor was
    aware of a potential conflict of interest prior
    to award or discovered an actual or potential
    conflict (or apparent conflict of interest) after
    award and did not disclose or misrepresented
    relevant information to the contracting
    officer, the Government may terminate the
    contract for default, or pursue such other
    remedies as may be permitted by law or this
    contract. These remedies include
    imprisonment for up to five years for
    violation of 18 U.S.C. 1001 and fines of up
    to $5,000 for violation of 31 U.S.C. 3802.
    Further remedies include suspension or
    debarment from contracting with the Federal
    government. The contractor may also be
    required to reimburse the Department for
    costs the Department incurs arising from
    activities related to conflicts of interest. An
    example of such costs would be those
    incurred in processing Freedom of
    Information Act requests related to a conflict
    of interest.

    (d) In cases where remedies short of
    termination have been applied, the
    contractor, subcontractor, employee, or
    consultant agrees to eliminate the
    organizational conflict of interest, or mitigate
    it to the satisfaction of the contracting officer.

    (e) The contractor further agrees to insert
    in any subcontract or consultant agreement
    hereunder, provisions that conform
    substantially to the language of this clause,
    including specific mention of potential
    remedies and this paragraph (e).
    (End of Clause)

    3452.215–70 Release of restricted data.

    As prescribed in 3415.209, insert the
    following provision in solicitations:

    Release of Restricted Data (MAR 2011)

    (a) Offerors are hereby put on notice that
    regardless of their use of the legend set forth
    in FAR 52.215–1(e), Restriction on Disclosure
    and Use of Data, the Government may be
    required to release certain data contained in
    the proposal in response to a request for the
    data under the Freedom of Information Act
    (FOIA). The Government’s determination to
    withhold or disclose a record will be based
    upon the particular circumstance involving
    the data in question and whether the data
    may be exempted from disclosure under
    FOIA. In accordance with Executive Order
    12600 and to the extent permitted by law, the
    Government will notify the offeror before it
    releases restricted data.

    (b) By submitting a proposal or quotation
    in response to this solicitation:

    (1) The offeror acknowledges that the
    Department may not be able to withhold or
    deny access to data requested pursuant to
    FOIA and that the Government’s FOIA
    officials shall make that determination;

    (2) The offeror agrees that the Government
    is not liable for disclosure if the Department
    has determined that disclosure is required by
    FOIA;

    (3) The offeror acknowledges that
    proposals not resulting in a contract remain
    subject to FOIA; and

    (4) The offeror agrees that the Government
    is not liable for disclosure or use of
    unmarked data and may use or disclose the
    data for any purpose, including the release of
    the information pursuant to requests under
    FOIA.

    (c) Offerors are cautioned that the
    Government reserves the right to reject any
    proposal submitted with:

    (1) A restrictive legend or statement
    differing in substance from the one required
    by the solicitation provision in FAR 52.215–
    1(e), Restriction on Disclosure and Use of
    Data, or

    (2) A statement taking exceptions to the
    terms of paragraphs (a) or (b) of this
    provision.

    (End of Provision)


    3452.216–70 Additional cost principles.
    Insert the following clause in
    solicitations and contracts as prescribed
    in 3416.307(b):

    Additional Cost Principles (MAR 2011)

    (a) Bid and Proposal Costs. Bid and
    proposal costs are the immediate costs of
    preparing bids, proposals, and applications
    for potential Federal and non-Federal grants,
    contracts, and other agreements, including
    the development of scientific, cost, and other
    data needed to support the bids, proposals,
    and applications. Bid and proposal costs of
    the current accounting period are allowable
    as indirect costs; bid and proposal costs of
    past accounting periods are unallowable as
    costs of the current period. However, if the
    organization’s established practice is to treat
    these costs by some other method, they may
    be accepted if they are found to be reasonable
    and equitable. Bid and proposal costs do not
    include independent research and
    development costs or pre-award costs.

    (b) Independent research and development
    costs. Independent research and
    development is research and development
    that is not sponsored by Federal and non-
    Federal grants, contracts, or other
    agreements. Independent research and
    development shall be allocated its
    proportionate share of indirect costs on the
    same basis as the allocations of indirect costs
    of sponsored research and development. The
    costs of independent research and
    development, including its proportionate
    share of indirect costs, are unallowable.

    (End of Clause)

    3452.216–71 Award-Term.

    As prescribed in 3416.470, insert a
    clause substantially the same as the
    following in all solicitations and
    contracts where an award-term
    arrangement is anticipated:

    Award–Term (MAR 2011)

    (a) The initial [insert initial contract term]
    contract term or ordering period may be
    extended or reduced on the basis of
    contractor performance, resulting in a
    contract term or an ordering period lasting at
    least [insert minimum contract term] years
    from the date of contract award, to a
    maximum of [insert maximum contract term]
    years after the date of contract award.

    (b) The contractor’s performance will be
    measured against stated standards by the
    performance monitors, who will report their
    findings to the Award Term Determining
    Official (or Board).

    (c) Bilateral changes may be made to the
    award-term plan at any time. If agreement
    cannot be made within 60 days, the
    Government reserves the right to make
    unilateral changes prior to the start of an
    award-term period.

    (d) The contractor will submit a brief
    written self-evaluation of its performance
    within X days after the end of the evaluation
    period. The self-evaluation report shall not
    exceed seven pages, and it may be considered
    in the Award Term Review Board’s (ATRB’s)
    (or Term Determining Official’s) evaluation
    of the contractor’s performance during this
    period.

    (e) The contract term or ordering period
    may be unilaterally modified to reflect the
    ATRB’s decision. If the contract term or
    ordering period has one year remaining, the
    operation of the contract award-term feature
    will cease and the contract term or ordering
    period will not extend beyond the maximum
    term stated in the contract.

    (f) Award terms that have not begun may
    be cancelled (rather than terminated), should
    the need for the items or services no longer
    exists. No equitable adjustments to the
    contract price are applicable, as this is not
    the same procedure as a termination for
    convenience.

    (g) The decisions made by the ATRB or
    Term Determining Official may be made
    unilaterally. Alternate Dispute Resolution
    procedures shall be utilized when
    appropriate.

    (End of Clause)

    3452.224–70 Release of information under
    the Freedom of Information Act.

    As prescribed in 3424.203, insert the
    following clause in solicitations and
    contracts.


    Release of Information Under the Freedom
    of Information Act (MAR 2011)

    By entering into a contract with the
    Department of Education, the contractor,
    without regard to proprietary markings,
    approves the release of the entire contract
    and all related modifications and task orders
    including, but not limited to:

    (1) Unit prices, including labor rates;

    (2) Statements of Work/Performance Work
    Statements generated by the contractor;

    (3) Performance requirements, including
    incentives, performance standards, quality
    levels, and service level agreements;

    (4) Reports, deliverables, and work
    products delivered in performance of the
    contract (including quality of service,
    performance against requirements/standards/
    service level agreements);

    (5) Any and all information, data, software,
    and related documentation first provided
    under the contract;

    (6) Proposals or portions of proposals
    incorporated by reference; and

    (7) Other terms and conditions.

    (End of Clause)

    3452.224–71 Notice about research
    activities involving human subjects.

    As prescribed in 3424.170, insert the
    following provision in any solicitation
    where a resultant contract will include,
    or is likely to include, research activities
    involving human subjects covered
    under 34 CFR part 97:

    Notice About Research Activities Involving
    Human Subjects (MAR 2011)

    (a) Applicable Regulations. In accordance
    with Department of Education regulations on
    the protection of human subjects, title 34,
    Code of Federal Regulations, part 97 (‘‘the
    regulations’’), the contractor, any
    subcontractors, and any other entities
    engaged in covered (nonexempt) research
    activities are required to establish and
    maintain procedures for the protection of
    human subjects.

    (b) Definitions.

    (1) The regulations define
    research as ‘‘a systematic investigation,
    including research development, testing and
    evaluation, designed to develop or contribute
    to generalizable knowledge.’’ (34 CFR
    97.102(d)). If an activity follows a deliberate
    plan designed to develop or contribute to
    generalizable knowledge, it is research.
    Research includes activities that meet this
    definition, whether or not they are conducted
    under a program considered research for
    other purposes. For example, some
    demonstration and service programs may
    include research activities.

    (2) The regulations define a human subject
    as a living individual about whom an
    investigator (whether professional or student)
    conducting research obtains data through
    intervention or interaction with the
    individual, or obtains identifiable private
    information. (34 CFR 97.102(f)). The
    definition of a human subject is met if an
    activity involves obtaining—
    (i) Information about a living person by—
    (A) Manipulating that person’s
    environment, as might occur when a new
    instructional technique is tested; or

    (B) Communicating or interacting with the
    individual, as occurs with surveys and
    interviews; or

    (ii) Private information about a living
    person in such a way that the information
    can be linked to that individual (the identity
    of the subject is or may be readily determined
    by the investigator or associated with the
    information). Private information includes
    information about behavior that occurs in a
    context in which an individual can
    reasonably expect that no observation or
    recording is taking place, and information
    that has been provided for specific purposes
    by an individual and that an individual can
    reasonably expect will not be made public
    (for example, a school health record).

    (c) Exemptions. The regulations provide
    exemptions from coverage for activities in
    which the only involvement of human
    subjects will be in one or more of the
    categories set forth in 34 CFR 97.101(b)(1)–
    (6). However, if the research subjects are
    children, the exemption at 34 CFR
    97.101(b)(2) (i.e., research involving the use
    of educational tests, survey procedures,
    interview procedures or observation of public
    behavior) is modified by 34 CFR 97.401(b), as
    explained in paragraph (d) of this provision.
    Research studies that are conducted under a
    Federal statute that requires without
    exception that the confidentiality of the
    personally identifiable information will be
    maintained throughout the research and
    thereafter, e.g., the Institute of Education
    Sciences confidentiality statute, 20 U.S.C.
    9573, are exempt under 34 CFR
    97.101(b)(3)(ii).

    (d) Children as research subjects.
    Paragraph (a) of 34 CFR 97.402 of the
    regulations defines children as ‘‘persons who
    have not attained the legal age for consent to
    treatments or procedures involved in the
    research, under the applicable law of the
    jurisdiction in which the research will be
    conducted.’’ Paragraph (b) of 34 CFR 97.401
    of the regulations provides that, if the
    research involves children as subjects—

    (1) The exemption in 34 CFR 97.101(b)(2)
    does not apply to activities involving—

    (i) Survey or interview procedures
    involving children as subjects; or

    (ii) Observations of public behavior of
    children in which the investigator or
    investigators will participate in the activities
    being observed.

    (2) The exemption in 34 CFR 97.101(b)(2)
    continues to apply, unmodified by 34 CFR
    97.401(b), to—

    (i) Educational tests; and

    (ii) Observations of public behavior in
    which the investigator or investigators will
    not participate in the activities being
    observed.

    (e) Proposal Instructions. An offeror
    proposing to do research that involves
    human subjects must provide information to
    the Department on the proposed exempt and
    nonexempt research activities. The offeror
    should submit this information as an
    attachment to its technical proposal. No
    specific page limitation applies to this
    requirement, but the offeror should be brief
    and to the point.

    (1) For exempt research activities involving
    human subjects, the offeror should identify
    the exemption(s) that applies and provide
    sufficient information to allow the
    Department to determine that the designated
    exemption(s) is appropriate. Normally, the
    narrative on the exemption(s) can be
    provided in one paragraph.

    (2) For nonexempt research activities
    involving human subjects, the offeror must
    cover the following seven points in the
    information it provides to the Department:

    (i) Human subjects’ involvement and
    characteristics
    : Describe the characteristics of
    the subject population, including their
    anticipated number, age range, and health
    status. Identify the criteria for inclusion or
    exclusion of any subpopulation. Explain the
    rationale for the involvement of special
    classes of subjects, such as children, children
    with disabilities, adults with disabilities,
    persons with mental disabilities, pregnant
    women, institutionalized individuals, or
    others who are likely to be vulnerable.

    (ii) Sources of materials: Identify the
    sources of research material obtained from or
    about individually identifiable living human
    subjects in the form of specimens, records, or
    data.

    (iii) Recruitment and informed consent:
    Describe plans for the recruitment of subjects
    and the consent procedures to be followed.

    (iv) Potential risks: Describe potential risks
    (physical, psychological, social, financial,
    legal, or other) and assess their likelihood
    and seriousness. Where appropriate, discuss
    alternative treatments and procedures that
    might be advantageous to the subjects.

    (v) Protection against risk: Describe the
    procedures for protecting against or
    minimizing potential risks, including risks to
    confidentiality, and assess their likely
    effectiveness. Where appropriate, discuss
    provisions for ensuring necessary medical or
    professional intervention in the event of
    adverse effects to the subjects. Also, where
    appropriate, describe the provisions for
    monitoring the data collected to ensure the
    safety of the subjects.

    (vi) Importance of knowledge to be gained:
    Discuss why the risks to the subjects are
    reasonable in relation to the importance of
    the knowledge that may reasonably be
    expected to result.

    (vii) Collaborating sites: If research
    involving human subjects will take place at
    collaborating site(s), name the sites and
    briefly describe their involvement or role in
    the research. Normally, the seven-point
    narrative can be provided in two pages or
    less.

    (3) If a reasonable potential exists that a
    need to conduct research involving human
    subjects may be identified after award of the
    contract and the offeror’s proposal contains
    no definite plans for such research, the
    offeror should briefly describe the
    circumstances and nature of the potential
    research involving human subjects.

    (f) Assurances and Certifications.

    (1) In accordance with the regulations and the
    terms of this provision, all contractors and
    subcontractors that will be engaged in
    covered human subjects research activities
    shall be required to comply with the
    requirements for Assurances and
    Institutional Review Board approvals, as set
    forth in the contract clause 3452.224–72
    (Research activities involving human
    subjects).

    (2) The contracting officer reserves the
    right to require that the offeror have or apply
    for the assurance and provide documentation
    of Institutional Review Board (IRB) approval
    of the research prior to award.

    (g)(1) The regulations, and related
    information on the protection of human
    research subjects, can be found on the
    Department’s protection of human subjects in
    research Web site: http://ed.gov/about/
    offices/list/ocfo/humansub.html.

    (2) Offerors may also contact the following
    office to obtain information about the
    regulations for the protection of human
    subjects and related policies and guidelines:
    Protection of Human Subjects Coordinator,
    U.S. Department of Education, Office of the
    Chief Financial Officer, Financial
    Management Operations, 400 Maryland
    Avenue, SW., Washington, DC 20202–4331,
    Telephone: (202) 245 8090.


    (End of Provision)

    3452.224–72 Research activities involving
    human subjects.

    As prescribed in 3424.170, insert the
    following clause in any contract that
    includes research activities involving
    human subjects covered under 34 CFR
    part 97:


    Research Activities Involving Human
    Subjects (MAR 2011)

    (a) In accordance with Department of
    Education regulations on the protection of
    human subjects in research, title 34, Code of
    Federal Regulations, part 97 (‘‘the
    regulations’’), the contractor, any
    subcontractors, and any other entities
    engaged in covered (nonexempt) research
    activities are required to establish and
    maintain procedures for the protection of
    human subjects. The definitions in 34 CFR
    97.102 apply to this clause. As used in this
    clause, covered research means research
    involving human subjects that is not exempt
    under 34 CFR 97.101(b) and 97.401(b).

    (b) If ED determines that proposed research
    activities involving human subjects are
    covered (i.e., not exempt under the
    regulations), the contracting officer or
    contacting officer’s designee will require the
    contractor to apply for the Federal Wide
    Assurance from the Office for Human
    Research Protections, U.S. Department of
    Health and Human Services, if the contractor
    does not already have one on file. The
    contracting officer will also require that the
    contractor obtain and send to the Department
    documentation of Institutional Review Board
    (IRB) review and approval of the research.

    (c) In accordance with 34 CFR part 97, all
    subcontractors and any legally separate entity
    (neither owned nor operated by the
    contractor) that will be engaged in covered
    research activities under or related to this
    contract shall be required to comply with the
    requirements for assurances and IRB
    approvals. The contractor must include the
    substance of this clause, including paragraph (c) of this clause, in all subcontracts, and
    must notify any other entities engaged in the
    covered research activities of their
    responsibility to comply with the regulations.

    (d) Under no condition shall the contractor
    conduct, or allow to be conducted, any
    covered research activity involving human
    subjects prior to the Department’s receipt of
    the certification that the research has been
    reviewed and approved by the IRB. (34 CFR
    97.103(f).) No covered research involving
    human subjects shall be initiated under this
    contract until the contractor has provided the
    contracting officer (or the contracting
    officer’s designee) a properly completed
    certification form certifying IRB review and
    approval of the research activity, and the
    contracting officer or designee has received
    the certification. This restriction applies to
    the activities of each participating entity.

    (e) In accordance with 34 CFR 97.109(e), an
    IRB must conduct continuing reviews of
    covered research activities at intervals
    appropriate to the degree of risk, but not less
    than once a year. Covered research activities
    that are expected to last one year or more are
    therefore subject to review by an IRB at least
    once a year.

    (1) For each covered activity under this
    contract that requires continuing review, the
    contractor shall submit an annual written
    representation to the contracting officer (or
    the contracting officer’s designee) stating
    whether covered research activities have
    been reviewed and approved by an IRB
    within the previous 12 months. The
    contractor may use the form titled ‘‘Protection
    of Human Subjects: Assurance Identification/
    Certification/Declaration of Exemption’’ for
    this representation. For multi-institutional
    projects, the contractor shall provide this
    information on its behalf and on behalf of
    any other entity engaged in covered research
    activities for which continuing IRB reviews
    are required.

    (2) If the IRB disapproves, suspends,
    terminates, or requires modification of any
    covered research activities under this
    contract, the contractor shall immediately
    notify the contracting officer in writing of the
    IRB’s action.

    (f) The contractor shall bear full
    responsibility for performing as safely as is
    feasible all activities under this contract
    involving the use of human subjects and for
    complying with all applicable regulations
    and requirements concerning human
    subjects. No one (neither the contractor, nor
    any subcontractor, agent, or employee of the
    contractor, nor any other person or
    organization, institution, or group of any
    kind whatsoever) involved in the
    performance of such activities shall be
    deemed to constitute an agent or employee of
    the Department of Education or of the
    Federal government with respect to such
    activities. The contractor agrees to discharge
    its obligations, duties, and undertakings and
    the work pursuant thereto, whether requiring
    professional judgment or otherwise, as an
    independent contractor without imputing
    liability on the part of the Government for the
    acts of the contractor and its employees.

    (g) Upon discovery of any noncompliance
    with any of the requirements or standards
    stated in paragraphs (b) and (c) of this clause,
    the contractor shall immediately correct the
    deficiency. If at any time during performance
    of this contract, the contracting officer
    determines, in consultation with the
    Protection of Human Subjects Coordinator,
    Office of the Chief Financial Officer, or the
    sponsoring office, that the contractor is not
    in compliance with any of the requirements
    or standards stated in paragraphs (b) and (c)
    of this clause, the contracting officer may
    immediately suspend, in whole or in part,
    work and further payments under this
    contract until the contractor corrects such
    noncompliance. Notice of the suspension
    may be communicated by telephone and
    confirmed in writing.

    (h) The Government may terminate this
    contract, in full or in part, for failure to fully
    comply with any regulation or requirement
    related to human subjects involved in
    research. Such termination may be in lieu of
    or in addition to suspension of work or
    payment. Nothing herein shall be construed
    to limit the Government’s right to terminate
    the contract for failure to fully comply with
    such requirements.

    (i) The regulations, and related information
    on the protection of human research subjects,
    can be found on the Department’s protection
    of human subjects in research Web site:
    http://ed.gov/about/offices/list/ocfo/
    humansub.html.

    Contractors may also contact the following
    office to obtain information about the
    regulations for the protection of human
    subjects and related policies and guidelines:
    Protection of Human Subjects Coordinator,
    U.S. Department of Education, Office of the
    Chief Financial Officer, Financial
    Management Operations, 400 Maryland
    Avenue, SW., Washington, DC 20202–4331,
    Telephone: (202) 245–8090.

    (End of Clause)

    3452.227–70 Publication and publicity.
    As prescribed in 3427.409, insert the
    following clause in all solicitations and
    contracts other than purchase orders:

    Publication and Publicity (MAR 2011)

    (a) Unless otherwise specified in this
    contract, the contractor is encouraged to
    publish and otherwise promote the results of
    its work under this contract. A copy of each
    article or work submitted by the contractor
    for publication shall be promptly sent to the
    contracting officer’s representative. The
    contractor shall also inform the
    representative when the article or work is
    published and furnish a copy in the
    published form.


    (b) The contractor shall acknowledge the
    support of the Department of Education in
    publicizing the work under this contract in
    any medium. This acknowledgement shall
    read substantially as follows:
    ‘‘This project has been funded at least in
    part with Federal funds from the U.S.
    Department of Education under contract
    number [Insert number]. The content of this
    publication does not necessarily reflect the
    views or policies of the U.S. Department of
    Education nor does mention of trade names,
    commercial products, or organizations imply
    endorsement by the U.S. Government.’’

    (End of Clause)


    3452.227–71 Advertising of awards.

    As prescribed in 3427.409, insert the
    following clause in all solicitations and
    contracts other than purchase orders:

    Advertising of Awards (MAR 2011)

    The contractor agrees not to refer to awards
    issued by, or products or services delivered
    to, the Department of Education in
    commercial advertising in such a manner as
    to state or imply that the product or service
    provided is endorsed by the Federal
    government or is considered by the Federal
    government to be superior to other products
    or services.

    (End of Clause)

    3452.227–72 Use and Non-Disclosure
    Agreement.

    As prescribed in 3427.409, insert the
    following clause in all contracts over the
    simplified acquisition threshold, and in
    contracts under the simplified
    acquisition threshold as appropriate:


    Use and Non-Disclosure Agreement (MAR
    2011)

    (a) Except as provided in paragraph

    (b) of this clause, proprietary data, technical data,
    or computer software delivered to the
    Government with restrictions on use,
    modification, reproduction, release,
    performance, display, or disclosure may not
    be provided to third parties unless the
    intended recipient completes and signs the
    use and non-disclosure agreement in
    paragraph

    (c) of this clause prior to release
    or disclosure of the data.

    (1) The specific conditions under which an
    intended recipient will be authorized to use,
    modify, reproduce, release, perform, display,
    or disclose proprietary data or technical data
    subject to limited rights, or computer
    software subject to restricted rights must be
    stipulated in an attachment to the use and
    non-disclosure agreement.

    (2) For an intended release, disclosure, or
    authorized use of proprietary data, technical
    data, or computer software subject to special
    license rights, modify paragraph (c)(1)(iv) of
    this clause to enter the conditions, consistent
    with the license requirements, governing the
    recipient’s obligations regarding use,
    modification, reproduction, release,
    performance, display, or disclosure of the
    data or software.

    (b) The requirement for use and nondisclosure
    agreements does not apply to
    Government contractors that require access to
    a third party’s data or software for the
    performance of a Government contract that
    contains the 3452.227–73 clause, Limitations
    on the use or disclosure of Government furnished
    information marked with restrictive legends.

    (c) The prescribed use and non-disclosure
    agreement is:


    Use and Non-Disclosure Agreement

    The undersigned, [Insert Name], an
    authorized representative of the [Insert
    Company Name
    ], (which is hereinafter
    referred to as the ‘‘recipient’’) requests the
    Government to provide the recipient with
    proprietary data, technical data, or computer
    software (hereinafter referred to as ‘‘data’’) in
    which the Government’s use, modification,
    reproduction, release, performance, display,
    or disclosure rights are restricted. Those data
    are identified in an attachment to this
    agreement. In consideration for receiving
    such data, the recipient agrees to use the data
    strictly in accordance with this agreement.
    (1) The recipient shall—
    (i) Use, modify, reproduce, release,
    perform, display, or disclose data marked
    with Small Business Innovative Research
    (SBIR) data rights legends only for
    government purposes and shall not do so for
    any commercial purpose. The recipient shall
    not release, perform, display, or disclose
    these data, without the express written
    permission of the contractor whose name
    appears in the restrictive legend (the
    contractor), to any person other than its
    subcontractors or suppliers, or prospective
    subcontractors or suppliers, who require
    these data to submit offers for, or perform,
    contracts with the recipient. The recipient
    shall require its subcontractors or suppliers,
    or prospective subcontractors or suppliers, to
    sign a use and non-disclosure agreement
    prior to disclosing or releasing these data to
    such persons. Such an agreement must be
    consistent with the terms of this agreement.

    (ii) Use, modify, reproduce, release,
    perform, display, or disclose proprietary data
    or technical data marked with limited rights
    legends only as specified in the attachment
    to this agreement. Release, performance,
    display, or disclosure to other persons is not
    authorized unless specified in the attachment
    to this agreement or expressly permitted in
    writing by the contractor.

    (iii) Use computer software marked with
    restricted rights legends only in performance
    of contract number [insert contract
    number(s)]. The recipient shall not, for
    example, enhance, decompile, disassemble,
    or reverse engineer the software; time share;
    or use a computer program with more than
    one computer at a time. The recipient may
    not release, perform, display, or disclose
    such software to others unless expressly
    permitted in writing by the licensor whose
    name appears in the restrictive legend.


    (iv) Use, modify, reproduce, release,
    perform, display, or disclose data marked
    with special license rights legends [To be
    completed by the contracting officer. See
    paragraph (a)(2) of this clause. Omit if none
    of the data requested is marked with special
    license rights legends].

    (2) The recipient agrees to adopt or
    establish operating procedures and physical
    security measures designed to protect these
    data from inadvertent release or disclosure to
    unauthorized third parties.

    (3) The recipient agrees to accept these
    data ‘‘as is’’ without any Government
    representation as to suitability for intended
    use or warranty whatsoever. This disclaimer
    does not affect any obligation the
    Government may have regarding data
    specified in a contract for the performance of
    that contract.

    (4) The recipient may enter into any
    agreement directly with the contractor with
    respect to the use, modification,
    reproduction, release, performance, display,
    or disclosure of these data.

    (5) The recipient agrees to indemnify and
    hold harmless the Government, its agents,
    and employees from every claim or liability,
    including attorneys fees, court costs, and
    expenses arising out of, or in any way related
    to, the misuse or unauthorized modification,
    reproduction, release, performance, display,
    or disclosure of data received from the
    Government with restrictive legends by the
    recipient or any person to whom the
    recipient has released or disclosed the data.

    (6) The recipient is executing this
    agreement for the benefit of the contractor.
    The contractor is a third party beneficiary of
    this agreement who, in addition to any other
    rights it may have, is intended to have the
    rights of direct action against the recipient or
    any other person to whom the recipient has
    released or disclosed the data, to seek
    damages from any breach of this agreement,
    or to otherwise enforce this agreement.

    (7) The recipient agrees to destroy these
    data, and all copies of the data in its
    possession, no later than 30 days after the
    date shown in paragraph (8) of this
    agreement, to have all persons to whom it
    released the data do so by that date, and to
    notify the contractor that the data have been
    destroyed.

    (8) This agreement shall be effective for the
    period commencing with the recipient’s
    execution of this agreement and ending upon
    [Insert Date].

    The obligations imposed by this
    agreement shall survive the expiration or
    termination of the agreement.

    [Insert business name.]

    Recipient’s Business Name

    [Have representative sign.]

    Authorized Representative

    [Insert date.]

    Date

    [Insert name and title.]

    Representative’s Typed Name and Title


    (End of Clause)

    3452.227–73 Limitations on the use or
    disclosure of Government-furnished
    information marked with restrictive legends.

    As prescribed in 3427.409, insert the
    following clause in all contracts of third
    party vendors who require access to
    Government-furnished information
    including other contractors’ technical
    data, proprietary information, or
    software:

    Limitations on The Use Or Disclosure of
    Government-Furnished Information Marked
    With Restrictive Legends (MAR 2011)

    (a) For contracts under which data are to
    be produced, furnished, or acquired, the
    terms limited rights and restricted rights are
    defined in the rights in data—general clause
    (FAR 52.227–14).


    (b) Proprietary data, technical data, or
    computer software provided to the contractor
    as Government-furnished information (GFI)
    under this contract may be subject to
    restrictions on use, modification,
    reproduction, release, performance, display,
    or further disclosure.

    (1) Proprietary data with legends that serve
    to restrict disclosure or use of data. The
    contractor shall use, modify, reproduce,
    perform, or display proprietary data received
    from the Government with proprietary or
    restrictive legends only in the performance of
    this contract. The contractor shall not,
    without the express written permission of the
    party who owns the data, release, or disclose
    such data or software to any person.

    (2) GFI marked with limited or restricted
    rights legends. The contractor shall use,
    modify, reproduce, perform, or display
    technical data received from the Government
    with limited rights legends or computer
    software received with restricted rights
    legends only in the performance of this
    contract. The contractor shall not, without
    the express written permission of the party
    whose name appears in the legend, release or
    disclose such data or software to any person.

    (3) GFI marked with specially negotiated
    license rights legends. The contractor shall
    use, modify, reproduce, release, perform, or
    display proprietary data, technical data, or
    computer software received from the
    Government with specially negotiated license
    legends only as permitted in the license.
    Such data or software may not be released or
    disclosed to other persons unless permitted
    by the license and, prior to release or
    disclosure, the intended recipient has
    completed the use and non-disclosure
    agreement. The contractor shall modify
    paragraph (c)(1)(iii) of the use and nondisclosure
    agreement (3452.227–72) to reflect
    the recipient’s obligations regarding use,
    modification, reproduction, release,
    performance, display, and disclosure of the
    data or software.

    (c) Indemnification and creation of third
    party beneficiary rights.

    (1) The contractor agrees to indemnify and
    hold harmless the Government, its agents,
    and employees from every claim or liability,
    including attorneys fees, court costs, and
    expenses, arising out of, or in any way
    related to, the misuse or unauthorized
    modification, reproduction, release,
    performance, display, or disclosure of
    proprietary data, technical data, or computer
    software received from the Government with
    restrictive legends by the contractor or any
    person to whom the contractor has released
    or disclosed such data or software.

    (2) The contractor agrees that the party
    whose name appears on the restrictive
    legend, in addition to any other rights it may
    have, is a third party beneficiary who has the
    right of direct action against the contractor,
    or any person to whom the contractor has
    released or disclosed such data or software,
    for the unauthorized duplication, release, or
    disclosure of proprietary data, technical data,
    or computer software subject to restrictive
    legends.

    (End of Clause)

    3452.228–70 Required insurance.

    As prescribed in 3428.311–2, insert
    the following clause in all solicitations
    and resultant cost-reimbursement
    contracts:

    Required Insurance (MAR 2011)

    (a) The contractor shall procure and
    maintain such insurance as required by law
    or regulation, including but not limited to the
    requirements of FAR Subpart 28.3. Prior
    written approval of the contracting officer
    shall be required with respect to any
    insurance policy, the premiums for which
    the contractor proposes to treat as a direct
    cost under this contract, and with respect to
    any proposed qualified program of selfinsurance.
    The terms of any other insurance
    policy shall be submitted to the contracting
    officer for approval upon request.


    (b) Unless otherwise authorized in writing
    by the contracting officer, the contractor shall
    not procure or maintain for its own
    protection any insurance covering loss or
    destruction of, or damage to, Government
    property.

    (End of Clause)

    3452.232–70 Limitation of cost or funds.

    The following clause shall be inserted
    in all contracts that include a Limitation
    of cost or Limitation of funds clause in
    accordance with 3432.705–2:

    Limitation of Cost or Funds (MAR 2011)

    (a) Under the circumstances in FAR
    32.704(a)(1), the contractor shall submit the
    following information in writing to the
    contracting officer:

    (1) Name and address of the contractor.

    (2) Contract number and expiration date.

    (3) Contract items and amounts that will
    exceed the estimated cost of the contract or
    the limit of the funds allotted.

    (4) The elements of cost that changed from
    the original estimate (for example: labor,
    material, travel, overhead), furnished in the
    following order:

    (i) Original estimate.

    (ii) Costs incurred to date.

    (iii) Estimated cost to completion.

    (iv) Revised estimate.

    (v) Amount of adjustment.

    (5) The factors responsible for the increase.

    (6) The latest date by which funds must be
    available to the contractor to avoid delays in
    performance, work stoppage, or other
    impairments.

    (b) A fixed fee provided in a contract may
    not be changed if a cost overrun is funded.
    Changes in a fixed fee may be made only to
    reflect changes in the scope of work that
    justify an increase or decrease in the fee.

    (End of Clause)

    3452.232–71 Incremental funding.

    As prescribed in 3432.705–2, insert
    the following provision in solicitations
    if a cost-reimbursement contract using
    incremental funding is contemplated:

    Incremental Funding (MAR 2011)

    Sufficient funds are not presently available
    to cover the total cost of the complete project
    described in this solicitation. However, it is
    the Government’s intention to negotiate and
    award a contract using the incremental
    funding concepts described in the clause
    titled ‘‘Limitation of Funds’’ in FAR 52.232–
    22. Under that clause, which will be
    included in the resultant contract, initial
    funds will be obligated under the contract to
    cover an estimated base performance period.
    Additional funds are intended to be allotted
    to the contract by contract modification, up
    to and including the full estimated cost of the
    entire period of performance. This intent
    notwithstanding, the Government will not be
    obligated to reimburse the contractor for
    costs incurred in excess of the periodic
    allotments, nor will the contractor be
    obligated to perform in excess of the amount
    allotted.

    (End of Provision)

    3452.237–70 Services of consultants.

    As prescribed in 3437.270, insert the
    following clause in all solicitations and
    resultant cost-reimbursement contracts
    that do not provide services to FSA:

    Services of Consultants (MAR 2011)

    Except as otherwise expressly provided
    elsewhere in this contract, and
    notwithstanding the provisions of the clause
    of the contract entitled ‘‘Subcontracts’’ (FAR
    52.244–2), the prior written approval of the
    contracting officer shall be required—

    (a) If any employee of the contractor is to
    be paid as a ‘‘consultant’’ under this contract;
    and

    (b)(1) For the utilization of the services of
    any consultant under this contract exceeding
    the daily rate set forth elsewhere in this
    contract or, if no amount is set forth, $800,
    exclusive of travel costs, or if the services of
    any consultant under this contract will
    exceed 10 days in any calendar year.

    (2) If that contracting officer’s approval is
    required, the contractor shall obtain and
    furnish to the contracting officer information
    concerning the need for the consultant
    services and the reasonableness of the fee to
    be paid, including, but not limited to,
    whether fees to be paid to any consultant
    exceed the lowest fee charged by the
    consultant to others for performing
    consultant services of a similar nature.

    (End of Clause)

    3452.237–71 Observance of administrative
    closures.

    As prescribed in 3437.170, insert the
    following clause in all solicitations and
    service contracts:

    Observance of Administrative Closures
    (MAR 2011)

    (a) The contract schedule identifies all
    Federal holidays that are observed under this
    contract. Contractor performance is required
    under this contract at all other times, and
    compensated absences are not extended due
    to administrative closures of Government
    facilities and operations due to inclement
    weather, Presidential decree, or other
    administrative issuances where Government
    personnel receive early dismissal
    instructions.

    (b) In cases of contract performance at a
    Government facility when the facility is
    closed, the vendor may arrange for
    performance to continue during the closure
    at the contractor’s site, if appropriate.

    (End of Clause)

    3452.239–70 Internet protocol version 6
    (IPv6).

    As prescribed in 3439.701, insert the
    following clause in all solicitations and
    resulting contracts for hardware and
    software:

    Internet Protocol Version 6 (MAR 2011)

    (a) Any system hardware, software,
    firmware, or networked component (voice,
    video, or data) developed, procured, or
    acquired in support or performance of this
    contract shall be capable of transmitting,
    receiving, processing, forwarding, and storing
    digital information across system boundaries
    utilizing system packets that are formatted in
    accordance with commercial standards of
    Internet protocol (IP) version 6 (IPv6) as set
    forth in Internet Engineering Task Force
    (IETF) Request for Comments (RFC) 2460 and
    associated IPv6-related IETF RFC standards.
    In addition, this system shall maintain
    interoperability with IPv4 systems and
    provide at least the same level of
    performance and reliability capabilities of
    IPv4 products.

    (b) Specifically, any new IP product or
    system developed, acquired, or produced
    must—

    (1) Interoperate with both IPv6 and IPv4
    systems and products; and

    (2) Have available contractor/vendor IPv6
    technical support for development and
    implementation and fielded product
    management.

    (c) Any exceptions to the use of IPv6
    require the agency’s CIO to give advance,
    written approval.

    (End of Clause)

    3452.239–71 Notice to offerors of
    Department security requirements.

    As prescribed in 3439.702, include
    the following provision in solicitations
    when the offeror’s employees would
    have access to Department-controlled
    facilities or space, or when the work
    (wherever located) would involve the
    design, operation, repair, or
    maintenance of information systems and
    access to sensitive but unclassified
    information:

    Notice to Offerors of Department Security
    Requirements (MAR 2011)

    (a) The offeror and any of its future
    subcontractors will have to comply with
    Department security policy requirements as
    set forth in the ‘‘Bidder’s Security Package:
    Security Requirements for Contractors Doing
    Business with the Department of Education’’
    at: http://www.ed.gov/fund/contract/about/
    bsp.html.

    (b) All contractor employees must undergo
    personnel security screening if they will be
    employed for 30 days or more, in accordance
    with Departmental Directive OM:5–101,
    ‘‘Contractor Employee Personnel Security
    Screenings,’’ available at: http://www.ed.gov/
    fund/contract/about/acs/acsom5101.doc.

    (c) The offeror shall indicate the following
    employee positions it anticipates to employ
    in performance of this contract and their
    proposed risk levels based on the guidance
    provided in Appendix I of Departmental
    Directive OM:5–101:
    High Risk (HR): [Specify HR positions.].
    Moderate Risk (MR): [Specify MR
    positions.].
    Low Risk (LR): [Specify LR positions.].

    (d) In the event the Department disagrees
    with a proposed risk level assignment, the
    issue shall be subject to negotiation.
    However, if no agreement is reached, the
    Department’s risk level assignment shall be
    used. The type of screening and the timing
    of the screening will depend upon the nature
    of the contractor position, the type of data to
    be accessed, and the type of information
    technology (IT) system access required.
    Personnel security screenings will be
    commensurate with the risk and magnitude
    of harm the individual could cause.

    (End of Provision)

    3452.239–72 Department security
    requirements.

    As prescribed in 3439.702, include
    the following clause in contracts when
    the contractor’s employees will have
    access to Department-controlled
    facilities or space, or when the work
    (wherever located) would involve the
    design, operation, repair, or
    maintenance of information systems and
    access to sensitive but unclassified
    information:

    Department Security Requirements (MAR
    2011)

    (a) The contractor and its subcontractors
    shall comply with Department security
    policy requirements as set forth in the
    ‘‘Bidder’s Security Package: Security
    Requirements for Contractors Doing Business
    with the Department of Education’’ at
    http://www.ed.gov/fund/contract/about/
    bsp.html.

    (b) The following are the contractor
    employee positions required under this
    contract and their designated risk levels:
    High Risk (HR): [Specify HR positions.]
    Moderate Risk (MR): [Specify MR
    positions.]
    Low Risk (LR): [Specify LR positions.]

    (c) All contractor employees must undergo
    personnel security screening if they will be
    employed for 30 days or more, in accordance
    with Departmental Directive OM:5–101,
    ‘‘Contractor Employee Personnel Security
    Screenings.’’ The type of screening and the
    timing of the screening will depend upon the
    nature of the contractor position, the type of
    data to be accessed, and the type of
    information technology (IT) system access
    required. Personnel security screenings will
    be commensurate with the risk and
    magnitude of harm the individual could
    cause.

    (d) The contractor shall—

    (1) Ensure that all non-U.S. citizen
    contractor employees are lawful permanent
    residents of the United States or have
    appropriate work authorization documents as
    required by the Department of Homeland
    Security, Bureau of Immigration and
    Appeals, to work in the United States.

    (2) Ensure that no employees are assigned
    to high risk designated positions prior to a
    completed preliminary screening.

    (3) Submit all required personnel security
    forms to the contracting officer’s
    representative (COR) within 24 hours of an
    assignment to a Department contract and
    ensure that the forms are complete.

    (4) Ensure that no contractor employee is
    placed in a higher risk position than that for
    which he or she was previously approved,
    without the approval of the contracting
    officer or the COR, the Department personnel
    security officer, and the Department
    computer security officer.

    (5) Ensure that all contractor employees
    occupying high-risk designated positions
    submit forms for reinvestigation every five
    years for the duration of the contract or if
    there is a break in service to a Department
    contract of 365 days or more.

    (6) Report to the COR all instances of
    individuals seeking to obtain unauthorized
    access to any departmental IT system, or
    sensitive but unclassified and/or Privacy Act
    protected information.

    (7) Report to the COR any information that
    raises an issue as to whether a contractor
    employee’s eligibility for continued
    employment or access to Department IT
    systems, or sensitive but unclassified and/or
    Privacy Act protected information, promotes
    the efficiency of the service or violates the
    public trust.

    (8) Withdraw from consideration under the
    contract any employee receiving an
    unfavorable adjudication determination.

    (9) Officially notify each contractor
    employee if he or she will no longer work on
    a Department contract.

    (10) Abide by the requirements in
    Departmental Directive OM:5–101,
    ‘‘Contractor Employee Personnel Security
    Screenings.’’

    (e) Further information including
    definitions of terms used in this clause and
    a list of required investigative forms for each
    risk designation are contained in
    Departmental Directive OM:5–101,
    ‘‘Contractor Employee Personnel Security
    Screenings’’ available at the Web site listed in
    the first paragraph of this clause.

    (f) Failure to comply with the contractor
    personnel security requirements may result
    in a termination of the contract for default.

    (End of Clause)

    3452.239–73 Federal desktop core
    configuration (FDCC) compatibility.

    As prescribed in 3439.703, insert the
    following clause in all solicitations and
    contracts where software will be
    developed, maintained, or operated on
    any system using the FDCC
    configuration:

    Federal Desktop Core Configuration (FDCC)
    Compatibility (MAR 2011)

    (a) (1) The provider of information
    technology shall certify applications are fully
    functional and operate correctly as intended
    on systems using the Federal desktop core
    configuration (FDCC). This includes Internet
    Explorer 7 configured to operate on Windows
    XP and Windows Vista (in Protected Mode
    on Vista).

    (2) For the Windows XP settings, see:
    http://csrc.nist.gov/itsec/
    guidance_WinXP.html
    , and for the Windows
    Vista settings, see: http://csrc.nist.gov/itsec/
    guidance_vista.html.

    (b) The standard installation, operation,
    maintenance, update, or patching of software
    shall not alter the configuration settings from
    the approved FDCC configuration. The
    information technology should also use the
    Windows Installer Service for installation to
    the default ‘‘program files’’ directory and
    should be able to silently install and
    uninstall.

    (c) Applications designed for normal end
    users shall run in the standard user context
    without elevated system administration
    privileges.

    (End of Clause)

    3452.242–70 Litigation and claims.
    As prescribed in 3442.7001, insert the
    following clause in all solicitations and
    resultant cost-reimbursement contracts:

    Litigation and Claims (MAR 2011)

    (a) The contractor shall give the contracting
    officer immediate notice in writing of—

    (1) Any legal action, filed against the
    contractor arising out of the performance of
    this contract, including any proceeding
    before any administrative agency or court of
    law, and also including, but not limited to,
    the performance of any subcontract
    hereunder; and

    (2) Any claim against the contractor for
    cost that is allowable under the ‘‘allowable
    cost and payment’’ clause.

    (b) Except as otherwise directed by the
    contracting officer, the contractor shall
    immediately furnish the contracting officer
    copies of all pertinent papers received under
    that action or claim.

    (c) If required by the contracting officer,
    the contractor shall—

    (1) Effect an assignment and subrogation in
    favor of the Government of all the
    contractor’s rights and claims (except those
    against the Government) arising out of the
    action or claim against the contractor; and

    (2) Authorize the Government to settle or
    defend the action or claim and to represent
    the contractor in, or to take charge of, the
    action.

    (d) If the settlement or defense of an action
    or claim is undertaken by the Government,
    the contractor shall furnish all reasonable
    required assistance. However, if an action
    against the contractor is not covered by a
    policy of insurance, the contractor shall
    notify the contracting officer and proceed
    with the defense of the action in good faith.

    (e) To the extent not in conflict with any
    applicable policy of insurance, the contractor
    may, with the contracting officer’s approval,
    settle any such action or claim.
    (f)(1) The Government shall not be liable
    for the expense of defending any action or for
    any costs resulting from the loss thereof to
    the extent that the contractor would have
    been compensated by insurance that was
    required by law, regulation, contract clause,
    or other written direction of the contracting
    officer, but that the contractor failed to secure
    through its own fault or negligence.
    (2) In any event, unless otherwise
    expressly provided in this contract, the
    contractor shall not be reimbursed or
    indemnified by the Government for any cost
    or expense of liability that the contractor may
    incur or be subject to by reason of any loss,
    injury, or damage, to the person or to real or
    personal property of any third parties as may
    arise from the performance of this contract.
    (End of Clause)

    3452.242–71 Notice to the Government of
    delays.

    As prescribed in 3442.7002, insert the
    following clause in all solicitations and
    contracts other than purchase orders:

    Notice to The Government Of Delays (MAR
    2011
    )

    The contractor shall notify the contracting
    officer of any actual or potential situation,
    including but not limited to labor disputes,
    that delays or threatens to delay the timely
    performance of work under this contract. The
    contractor shall immediately give written
    notice thereof, including all relevant
    information.
    (End of Clause)

    3452.242–73 Accessibility of meetings, conferences, and seminars to persons with
    disabilities.

    As prescribed in 3442.7101(b), insert
    the following clause in all solicitations
    and contracts:

    Accessibility of Meetings, Conferences, and
    Seminars to Persons With Disabilities (MAR
    2011)

    The contractor shall assure that any
    meeting, conference, or seminar held
    pursuant to the contract will meet all
    applicable standards for accessibility to
    persons with disabilities pursuant to section
    504 of the Rehabilitation Act of 1973, as
    amended (29 U.S.C. 794) and any
    implementing regulations of the Department.

    (End of Clause)

    3452.243–70 Key personnel.

    As prescribed in 3443.107, insert a
    clause substantially the same as the
    following in all solicitations and
    resultant cost-reimbursement contracts
    in which it will be essential for the
    contracting officer to be notified that a
    change of designated key personnel is to
    take place by the contractor:

    Key Personnel (MAR 2011)

    (a) The personnel designated as key
    personnel in this contract are considered to
    be essential to the work being performed
    hereunder. Prior to diverting any of the
    specified individuals to other programs, or
    otherwise substituting any other personnel
    for specified personnel, the contractor shall
    notify the contracting officer reasonably in
    advance and shall submit justification
    (including proposed substitutions) in
    sufficient detail to permit evaluation of the
    impact on the contract effort. No diversion or
    substitution shall be made by the contractor
    without written consent of the contracting
    officer; provided, that the contracting officer
    may ratify a diversion or substitution in
    writing and that ratification shall constitute
    the consent of the contracting officer required
    by this clause. The contract shall be modified
    to reflect the addition or deletion of key
    personnel.

    (b) The following personnel have been
    identified as Key Personnel in the
    performance of this contract:

    Labor category Name

    [Insert category.] [Insert name.]

    (End of Clause)

    3452.247–70 Foreign travel.

    As prescribed in 3447.701, insert the
    following clause in all solicitations and
    resultant cost-reimbursement contracts:

    Foreign Travel (MAR 2011)

    Foreign travel shall not be undertaken
    without the prior written approval of the
    contracting officer. As used in this clause,
    foreign travel means travel outside the
    Continental United States, as defined in the
    Federal Travel Regulation. Travel to nonforeign
    areas (including the States of Alaska
    and Hawaii, the Commonwealths of Puerto
    Rico, Guam and the Northern Mariana
    Islands and the territories and possessions of
    the United States) is considered ‘‘foreign
    travel’’ for the purposes of this clause.

    (End of Clause)



       
    Last Modified: 10/01/2019