(b) Other parts,
subparts, and sections of this regulation (48 CFR Chapter 1) may
define other words or terms and those definitions only apply to
the part, subpart, or section where the word or term is defined
(see the Index for locations).
(b) If a word or term
that is defined in this section is defined differently in another
part, subpart, or section of this regulation (48 CFR Chapter 1),
the definition in-
(1) This section
includes a cross-reference to the other definitions; and
(2) That part,
subpart, or section applies to the word or term when used in
that part, subpart, or section.
.. "Acquisition" means the acquiring by contract with
appropriated funds of
supplies or services (including construction) by and for the use of the
Federal Government through purchase or lease, whether the supplies or
services are already in existence or must be created, developed,
demonstrated, and evaluated. Acquisition begins at the point when agency
needs are established and includes the description of requirements to satisfy
agency needs, solicitation and selection of sources, award of contracts,
contract financing, contract performance, contract administration, and those
technical and management functions directly related to the process of
fulfilling agency needs by contract.
.. "Acquisition planning" means the process by which the efforts of all
personnel responsible for an acquisition are coordinated and integrated
through a comprehensive plan for fulfilling the agency need in a timely
manner and at a reasonable cost. It includes developing the overall strategy
for managing the acquisition.
.. "Adequate evidence" means information sufficient
to support the reasonable belief that a particular act or omission has
occurred.
.. "Advisory and assistance services" means
those services provided under
contract by nongovernmental sources to support or improve: organizational
policy development; decision-making; management and administration; program
and/or project management and administration; or R&D activities. It can
also mean the furnishing of professional advice or assistance rendered to
improve the effectiveness of Federal management processes or procedures
(including those of an engineering and technical nature). In rendering the
foregoing services, outputs may take the form of information, advice,
opinions, alternatives, analyses, evaluations, recommendations, training and
the day-to-day aid of support personnel needed for the successful performance
of ongoing Federal operations. All advisory and assistance services are
classified in one of the following definitional subdivisions:
..
(1)
Management and professional support services,i.e.,
contractual services that provide assistance, advice or training
for the efficient and effective management and operation of
organizations, activities (including management and support
services for R&D activities), or systems. These services
are normally closely related to the basic responsibilities and
mission of the agency originating the requirement for the
acquisition of services by contract. Included are efforts
that support or contribute to improved organization of program
management, logistics management, project monitoring and
reporting, data collection, budgeting, accounting, performance
auditing, and administrative technical support for conferences
and training programs.
..
(2) Studies, analyses
and evaluations,i.e.,
contracted services that provide organized, analytical
assessments/evaluations in support of policy development,
decision-making, management, or administration. Included are studies
in support of R&D activities. Also included are acquisitions
of models, methodologies, and related software supporting
studies, analyses or evaluations.
..
(3) Engineering and
technical services,i.e.,
contractual services used to support the program office during
the acquisition cycle by providing such services as systems
engineering and technical direction (see 9.505-1(b)) to ensure
the effective operation and maintenance of a weapon system or
major system as defined in OMB Circular No. A-109 or to provide
direct support of a weapon system that is essential to research,
development, production, operation or maintenance of the system.
"Affiliates" means associated business concerns or
individuals if, directly or indirectly-
(1) Either one controls
or can control the other; or
(2) A third party
controls or can control both.
.. "Agency head" or "head of the agency" means the
Secretary, Attorney General, Administrator, Governor, Chairperson, or other
chief official of an executive agency, unless otherwise indicated, including
any deputy or assistant chief official of an executive agency.
.. "Alternate" means a substantive variation of a basic
provision or clause prescribed for use in a defined circumstance. It adds
wording to, deletes wording from, or substitutes specified wording for a
portion of the basic provision or clause. The alternate version of a
provision or clause is the basic provision or clause as changed by the
addition, deletion, or substitution (see 52.105(a)).
.. "Architect-engineer services," as defined in 40 U.S.C.
541, means-
(1) Professional
services of an architectural or engineering nature, as defined by
State law, if applicable, that are required to be performed or
approved by a person licensed, registered, or certified to provide
those services;
..
(2) Professional services
of an architectural or engineering nature performed by contract that
are associated with research, planning, development, design,
construction, alteration, or repair of real property; and
..
(3) Those other
professional services of an architectural or engineering nature,
or incidental services, that members of the architectural and
engineering professions (and individuals in their employ) may
logically or justifiably perform, including studies, investigations,
surveying and mapping, tests, evaluations, consultations,
comprehensive planning, program management, conceptual designs,
plans and specifications, value engineering, construction phase
services, soils engineering, drawing reviews, preparation of
operating and maintenance manuals, and other related services.
.. Assignment of claims" means the transfer or making
over by the contractor to a bank, trust company, or other financing
institution, as security for a loan to the contractor, of its right to be
paid by the Government for contract performance.
.. "Basic research" means that research directed toward
increasing knowledge in science. The primary aim of basic research is a
fuller knowledge or understanding of the subject under study, rather than any
practical application of that knowledge.
.. "Best value" means the expected outcome of an
acquisition that, in the Government's estimation, provides the greatest
overall benefit in response to the requirement.
.. "Bid sample" means a product sample required to be
submitted by an offeror to show characteristics of the offered products that
cannot adequately be described by specifications, purchase descriptions, or
the solicitation (e.g., balance, facility of use, or pattern).
.. "Broad agency announcement" means a general
announcement of an agency's research interest including criteria for
selecting proposals and soliciting the participation of all offerors capable
of satisfying the Government's needs (see 6.102(d)(2)).
.. "Bundled contract" means a contract where the
requirements have been consolidated by bundling. (See the definition of
bundling.)
.. "Bundling" means-
(1) Consolidating two or
more requirements for supplies or services, previously provided or
performed under separate smaller contracts, into a solicitation for
a single contract that is likely to be unsuitable for award to a
small business concern due to-
(2) "Separate smaller
contract" as used in this definition, means a contract that has been
performed by one or more small business concerns or that was suitable
for award to one or more small business concerns.
..
(3) This definition does
not apply to a contract that will be awarded and performed entirely
outside of the United States.
.. "Business unit" means any segment of an organization,
or an entire business organization that is not divided into segments.
.. "Change-of-name agreement" means a legal instrument
executed by the contractor and the Government that recognizes the legal
change of name of the contractor without disturbing the original contractual
rights and obligations of the parties.
.. "Change order" means a written order, signed by the
contracting officer, directing the contractor to make a change that the
Changes clause authorizes the contracting officer to order without the
contractor's consent.
.. "Classified acquisition" means an acquisition in which
offerors must have access to classified information to properly submit an
offer or quotation, to understand the performance requirements, or to perform
the contract.
.. "Classified contract" means any contract in which the
contractor or its employees must have access to classified information during
contract performance. A contract may be a classified contract even though
the contract document itself is unclassified.
.. "Classified information" means any knowledge that can
be communicated or any documentary material, regardless of its physical form
or characteristics, that-
(2) Must be protected
against unauthorized disclosure according to Executive Order 12958,
Classified National Security Information, April 17, 1995, or
classified in accordance with the Atomic Energy Act of 1954.
.. "Cognizant Federal agency" means the Federal agency
that, on behalf of all Federal agencies, is responsible for establishing
final indirect cost rates and forward pricing rates, if applicable, and
administering cost accounting standards for all contracts in a business unit.
.. "Commerce Business Daily (CBD)" means the publication
of the Secretary of Commerce used to fulfill statutory requirements to
publish certain public notices in paper form.
.. "Commercial component" means any component that is a
commercial item.
.. "Commercial item" means-
(1) Any item, other
than real property, that is of a type customarily used by the
general public or by non-governmental entities for purposes
other than governmental purposes, and-
(2) Any item that
evolved from an item described in paragraph (1) of this definition
through advances in technology or performance and that is not yet
available in the commercial marketplace, but will be available in
the commercial marketplace in time to satisfy the delivery
requirements under a Government solicitation;
..
(3) Any item that would
satisfy a criterion expressed in paragraphs (1) or (2) of this
definition, but for-
(i) Modifications of a
type customarily available in the commercial marketplace; or
..
(ii) Minor
modifications of a type not customarily available in the
commercial marketplace made to meet Federal Government
requirements. Minor modifications means modifications that
do not significantly alter the nongovernmental function or
essential physical characteristics of an item or component,
or change the purpose of a process. Factors to be considered
in determining whether a modification is minor include the
value and size of the modification and the comparative
value and size of the final product. Dollar values and
percentages may be used as guideposts, but are not
conclusive evidence that a modification is minor;
(4) Any combination of
items meeting the requirements of paragraphs (1), (2), (3), or (5)
of this definition that are of a type customarily combined and sold
in combination to the general public;
..
(5) Installation services,
maintenance services, repair services, training services, and other
services if-
(i) Such services are
procured for support of an item referred to in paragraph (1), (2), (3),
or (4) of this definition, regardless of whether such services are
provided by the same source or at the same time as the item; and
..
(ii) The source of such
services provides similar services contemporaneously to the general
public under terms and conditions similar to those offered to the
Federal Government;
(6) Services of a type
offered and sold competitively in substantial quantities in the
commercial marketplace based on established catalog or market
prices for specific tasks performed under standard commercial
terms and conditions. This does not include services that are
sold based on hourly rates without an established catalog or market
price for a specific service performed. For purposes of these services-
(i) "Catalog price"
means a price included in a catalog, price list, schedule, or other
form that is regularly maintained by the manufacturer or vendor, is
either published or otherwise available for inspection by customers,
and states prices at which sales are currently, or were last, made
to a significant number of buyers constituting the general public; and
..
(ii) "Market prices"
means current prices that are established in the course of ordinary
trade between buyers and sellers free to bargain and that can be
substantiated through competition or from sources independent of
the offerors.
(7) Any item,
combination of items, or service referred to in paragraphs (1)
through (6) of this definition, notwithstanding the fact that
the item, combination of items, or service is transferred between
or among separate divisions, subsidiaries, or affiliates of a
contractor; or
..
(8) A nondevelopmental
item, if the procuring agency determines the item was developed
exclusively at private expense and sold in substantial quantities,
on a competitive basis, to multiple State and local governments.
.. "Component" means any item supplied to the Government
as part of an end item or of another component, except that for use in-
(1) Part 25, see
the definition in 25.003;
(2) 52.225-1
and 52.225-3, see the definition in 52.225-1(a) and 52.225-3(a); and
..
(3) 52.225-9
and 52.225-11, see the definition in 52.225-9(a) and 52.225-11(a).
.. "Computer software" means computer programs, computer
databases, and related documentation.
.. "Consent to subcontract" means the contracting
officer's written consent for the prime contractor to enter into a particular
subcontract.
.. "Construction" means construction, alteration, or
repair (including dredging, excavating, and painting) of buildings,
structures, or other real property. For purposes of this definition, the
terms "buildings, structures, or other real property" include, but are not
limited to, improvements of all types, such as bridges, dams, plants,
highways, parkways, streets, subways, tunnels, sewers, mains, power lines,
cemeteries, pumping stations, railways, airport facilities, terminals, docks,
piers, wharves, ways, lighthouses, buoys, jetties, breakwaters, levees,
canals, and channels. Construction does not include the manufacture,
production, furnishing, construction, alteration, repair, processing, or
assembling of vessels, aircraft, or other kinds of personal property.
.. "Contract" means a mutually binding legal relationship
obligating the seller to furnish the supplies or services (including
construction) and the buyer to pay for them. It includes all types of
commitments that obligate the Government to an expenditure of appropriated
funds and that, except as otherwise authorized, are in writing. In addition
to bilateral instruments, contracts include (but are not limited to) awards
and notices of awards; job orders or task letters issued under basic ordering
agreements; letter contracts; orders, such as purchase orders, under which
the contract becomes effective by written acceptance or performance; and
bilateral contract modifications. Contracts do not include grants and
cooperative agreements covered by 31 U.S.C. 6301, et
seq. For discussion of various types of contracts, see Part 16.
.. "Contract administration office" means an office that
performs-
(1) Assigned postaward
functions related to the administration of contracts; and
..
(2) Assigned preaward
functions.
.. "Contract clause" or "clause" means a term or
condition used in contracts or in both solicitations and contracts, and
applying after contract award or both before and after award.
.. "Contract modification" means any written change in
the terms of a contract (see 43.103).
.. "Contracting" means purchasing, renting, leasing, or
otherwise obtaining supplies or services from nonfederal sources.
Contracting includes description (but not determination) of supplies and
services required, selection and solicitation of sources, preparation and
award of contracts, and all phases of contract administration. It does not
include making grants or cooperative agreements.
.. "Contracting activity" means an element of an agency
designated by the agency head and delegated broad authority regarding
acquisition functions.
.. "Contracting office" means an office that awards or
executes a contract for supplies or services and performs postaward functions
not assigned to a contract administration office (except for use in Part 48,
see also 48.001).
.. "Contracting officer" means a person with the
authority to enter into, administer, and/or terminate contracts and make
related determinations and findings. The term includes certain authorized
representatives of the contracting officer acting within the limits of their
authority as delegated by the contracting officer. "Administrative
contracting officer (ACO)" refers to a contracting officer who is
administering contracts. "Termination contracting officer (TCO)" refers to a
contracting officer who is settling terminated contracts. A single
contracting officer may be responsible for duties in any or all of these
areas. Reference in this regulation (48 CFR Chapter 1) to administrative
contracting officer or termination contracting officer does not-
(1) Require that a duty
be performed at a particular office or activity; or
..
(2) Restrict in any
way a contracting officer in the performance of any duty properly assigned.
.. "Conviction" means a judgment or conviction of a
criminal offense by any court of competent jurisdiction, whether entered upon
a verdict or a plea, and includes a conviction entered upon a plea of nolo
contendere. For use in Subpart 23.5, see the definition at 23.503.
.. "Cost or pricing data" (10 U.S.C. 2306a(h)(1) and 41
U.S.C. 254b) means all facts that, as of the date of price agreement or, if
applicable, an earlier date agreed upon between the parties that is as close
as practicable to the date of agreement on price, prudent buyers and sellers
would reasonably expect to affect price negotiations significantly. Cost or
pricing data are data requiring certification in accordance with 15.406-2.
Cost or pricing data are factual, not judgmental; and are verifiable. While
they do not indicate the accuracy of the prospective contractor's judgment
about estimated future costs or projections, they do include the data forming
the basis for that judgment. Cost or pricing data are more than historical
accounting data; they are all the facts that can be reasonably expected to
contribute to the soundness of estimates of future costs and to the validity
of determinations of costs already incurred. They also include such factors
as-
(3) Information on changes in production methods and in production or purchasing volume;
(4) Data supporting projections of business prospects and objectives and related operations costs;
(5) Unit-cost trends such as those associated with labor efficiency;
(6) Make-or-buy decisions;
(7) Estimated resources to attain business goals; and
(8) Information on management decisions that could have a significant bearing on costs.
.. "Cost realism" means that the costs in an offeror's
proposal-
(1) Are realistic for the work to be performed;
(2) Reflect a clear understanding of the requirements; and
(3) Are consistent with the various elements of the offeror's technical proposal.
.. "Cost sharing" means an explicit arrangement under
which the contractor bears some of the burden of reasonable, allocable, and
allowable contract cost.
.. "Day" means, unless otherwise specified, a calendar
day.
.. "Debarment" means action taken by a debarring official
under 9.406 to exclude a contractor from Government contracting and
Government-approved subcontracting for a reasonable, specified period; a
contractor that is excluded is "debarred."
.. "Delivery order" means an order for supplies placed
against an established contract or with Government sources.
.. "Descriptive literature" means information provided by
an offeror, such as cuts, illustrations, drawings, and brochures, that shows
a product's characteristics or construction of a product or explains its
operation. The term includes only that information needed to evaluate the
acceptability of the product and excludes other information for operating or
maintaining the product.
.. "Design-to-cost" means a concept that establishes cost
elements as management goals to achieve the best balance between life-cycle
cost, acceptable performance, and schedule. Under this concept, cost is a
design constraint during the design and development phases and a management
discipline throughout the acquisition and operation of the system or
equipment.
.. "Drug-free workplace" means the site(s) for the
performance of work done by the contractor in connection with a specific
contract where employees of the contractor are prohibited from engaging in
the unlawful manufacture, distribution, dispensing, possession, or use of a
controlled substance.
.. "Effective date of termination" means the date on
which the notice of termination requires the contractor to stop performance
under the contract. If the contractor receives the termination notice after
the date fixed for termination, then the effective date of termination means
the date the contractor receives the notice.
.. "Electronic and information technology (EIT)" has the
same meaning as "information technology" except EIT also includes any
equipment or interconnected system or subsystem of equipment that is used in
the creation, conversion, or duplication of data or information. The term
EIT, includes, but is not limited to, telecommunication products (such as
telephones), information kiosks and transaction machines, worldwide websites,
multimedia, and office equipment (such as copiers and fax machines).
.. "Electronic commerce" means electronic techniques for
accomplishing business transactions including electronic mail or messaging,
World Wide Web technology, electronic bulletin boards, purchase cards,
electronic funds transfer, and electronic data interchange.
.. "Electronic data interchange (EDI)" means a technique
for electronically transferring and storing formatted information between
computers utilizing established and published formats and codes, as
authorized by the applicable Federal Information Processing Standards.
.. "Electronic Funds Transfer (EFT)" means any transfer
of funds, other than a transaction originated by cash, check, or similar
paper instrument, that is initiated through an electronic terminal,
telephone, computer, or magnetic tape, for the purpose of ordering,
instructing, or authorizing a financial institution to debit or credit an
account. The term includes Automated Clearing House transfers, Fedwire
transfers, and transfers made at automatic teller machines and point-of-sale
terminals. For purposes of compliance with 31 U.S.C. 3332 and implementing
regulations at 31 CFR part 208, the term "electronic funds transfer" includes
a Governmentwide commercial purchase card transaction.
.. "End product" means supplies delivered under a line
item of a Government contract, except for use in Part 25 and the associated
clauses at 52.225-1, 52.225-3, and 52.225-5, see the definitions in 25.003,
52.225-1(a), 52.225-3(a), and 52.225-5(a).
.. "Energy-efficient product" means a product that-
(1) Meets Department of Energy and Environmental Protection Agency criteria for use of the Energy Star trademark label; or
(2) Is in the upper 25 percent of efficiency for all similar products as designated by the Department of Energy's Federal Energy Management Program.
.. "Energy-savings performance contract" means a contract
that requires the contractor to-
(1) Perform services for
the design, acquisition, financing, installation, testing, operation,
and where appropriate, maintenance and repair, of an identified energy
conservation measure or series of measures at one or more locations;
..
(2) Incur the costs of
implementing the energy savings measures, including at least the cost
(if any) incurred in making energy audits, acquiring and installing
equipment, and training personnel in exchange for a predetermined
share of the value of the energy savings directly resulting from
implementation of such measures during the term of the contract; and
..
(3) Guarantee future
energy and cost savings to the Government.
.. "Environmentally preferable" means products or
services that have a lesser or reduced effect on human health and the
environment when compared with competing products or services that serve the
same purpose. This comparison may consider raw materials acquisition,
production, manufacturing, packaging, distribution, reuse, operation,
maintenance, or disposal of the product or service.
.. "Executive agency" means an executive department, a
military department, or any independent establishment within the meaning of 5
U.S.C. 101, 102, and 104(1), respectively, and any wholly owned Government
corporation within the meaning of 31 U.S.C. 9101.
.. "Facsimile" means electronic equipment that
communicates and reproduces both printed and handwritten material. If used
in conjunction with a reference to a document; e.g., facsimile
bid, the terms refers to a document (in the example given, a bid) that has
been transmitted to and received by the Government via facsimile.
.. "Federal Acquisition Computer Network (FACNET)
Architecture" is a Government system that provides user access, employs
nationally and internationally recognized data formats, and allows the
electronic data interchange of acquisition information between the private
sector and the Federal Government.
.. "Federal agency" means any executive agency or any
independent establishment in the legislative or judicial branch of the
Government (except the Senate, the House of Representatives, the Architect of
the Capitol, and any activities under the Architect's direction).
.. "Federally Funded Research and Development Centers
(FFRDC's)" means activities that are sponsored under a broad charter by a
Government agency (or agencies) for the purpose of performing, analyzing,
integrating, supporting, and/or managing basic or applied research and/or
development, and that receive 70 percent or more of their financial support
from the Government; and-
(2) Most or all of the facilities are owned or funded by the Government; and
(3) The FFRDC has access
to Government and supplier data, employees, and facilities beyond that
common in a normal contractual relationship.
.. "Final indirect cost rate" means the indirect cost
rate established and agreed upon by the Government and the contractor as not
subject to change. It is usually established after the close of the
contractor's fiscal year (unless the parties decide upon a different period)
to which it applies. For cost-reimbursement research and development
contracts with educational institutions, it may be predetermined; that is,
established for a future period on the basis of cost experience with similar
contracts, together with supporting data.
.. "First article" means a preproduction model, initial
production sample, test sample, first lot, pilot lot, or pilot models.
.. "First article testing" means testing and evaluating
the first article for conformance with specified contract requirements before
or in the initial stage of production.
.. "F.o.b." means free on board. This term is used in
conjunction with a physical point to determine-
(1) The responsibility
and basis for payment of freight charges; and
(2) Unless otherwise
agreed, the point where title for goods passes to the buyer or consignee.
.. "F.o.b. destination" means free on board at
destination; i.e., the seller or consignor delivers the
goods on seller's or consignor's conveyance at destination. Unless the
contract provides otherwise, the seller or consignor is responsible for the
cost of shipping and risk of loss. For use in the clause at 52.247-34, see
the definition at 52.247-34(a).
.. "F.o.b. origin" means free on board at origin; i.e., the seller or consignor places the goods on the
conveyance. Unless the contract provides otherwise, the buyer or consignee
is responsible for the cost of shipping and risk of loss. For use in the
clause at 52.247-29, see the definition at 52.247-29(a).
.. "F.o.b."... (For other types of F.o.b., see 47.303).
.. "Forward pricing rate agreement" means a written
agreement negotiated between a contractor and the Government to make certain
rates available during a specified period for use in pricing contracts or
modifications. These rates represent reasonable projections of specific
costs that are not easily estimated for, identified with, or generated by a
specific contract, contract end item, or task. These projections may include
rates for such things as labor, indirect costs, material obsolescence and
usage, spare parts provisioning, and material handling.
.. "Forward pricing rate recommendation" means a rate set
unilaterally by the administrative contracting officer for use by the
Government in negotiations or other contract actions when forward pricing
rate agreement negotiations have not been completed or when the contractor
will not agree to a forward pricing rate agreement.
.. "Freight" means supplies, goods, and transportable
property.
.. "Full and open competition," when used with respect to
a contract action, means that all responsible sources are permitted to
compete.
.. "General and administrative (G&A) expense" means
any management, financial, and other expense which is incurred by or
allocated to a business unit and which is for the general management and
administration of the business unit as a whole. G&A expense does not
include those management expenses whose beneficial or causal relationship to
cost objectives can be more directly measured by a base other than a cost
input base representing the total activity of a business unit during a cost
accounting period.
.. "Governmentwide point of entry (GPE)" means the single
point where Government business opportunities greater than $25,000, including
synopses of proposed contract actions, solicitations, and associated
information, can be accessed electronically by the public. The GPE is located
at
http://www.fedbizopps.gov .. "Head of the agency" (see "agency head").
.. "Head of the contracting activity" means the official
who has overall responsibility for managing the contracting activity.
.. "Historically black college or university" means an
institution determined by the Secretary of Education to meet the requirements
of 34 CFR 608.2. For the Department of Defense, the National Aeronautics and
Space Administration, and the Coast Guard, the term also includes any
nonprofit research institution that was an integral part of such a college or
university before November 14, 1986.
.. "HUBZone" means a historically underutilized business
zone that is an area located within one or more qualified census tracts,
qualified nonmetropolitan counties, or lands within the external boundaries
of an Indian reservation.
.. "HUBZone small business concern" means a small
business concern that appears on the List of Qualified HUBZone Small Business
Concerns maintained by the Small Business Administration.
.. "In writing," "writing," or "written" means any worded
or numbered expression that can be read, reproduced, and later communicated,
and includes electronically transmitted and stored information.
.. "Indirect cost" means any cost not directly identified
with a single, final cost objective, but identified with two or more final
cost objectives or an intermediate cost objective.
.. "Indirect cost rate" means the percentage or dollar
factor that expresses the ratio of indirect expense incurred in a given
period to direct labor cost, manufacturing cost, or another appropriate base
for the same period (see also "final indirect cost rate").
.. "Ineligible" means excluded from Government
contracting (and subcontracting, if appropriate) pursuant to statutory,
Executive order, or regulatory authority other than this regulation (48 CFR
Chapter 1) and its implementing and supplementing regulations; for example,
pursuant to the Davis-Bacon Act and its related statutes and implementing
regulations, the Service Contract Act, the Equal Employment Opportunity Acts
and Executive orders, the Walsh-Healey Public Contracts Act, the Buy American
Act, or the Environmental Protection Acts and Executive orders.
.. "Information other than cost or pricing data" means
any type of information that is not required to be certified in accordance
with 15.406-2 and is necessary to determine price reasonableness or cost
realism. For example, such information may include pricing, sales, or cost
information, and includes cost or pricing data for which certification is
determined inapplicable after submission.
.. "Information technology" means any equipment, or
interconnected system(s) or subsystem(s) of equipment, that is used in the
automatic acquisition, storage, manipulation, management, movement, control,
display, switching, interchange, transmission, or reception of data or
information by the agency.
(1) For purposes of this definition, equipment is used by an agency if the
equipment is used by the agency directly or is used by a contractor
under a contract with the agency that requires-
..
(i) Its use; or
(ii) To a
significant extent, its use in the performance of a service or
the furnishing of a product.
(2) The term "information
technology" includes computers, ancillary equipment, software, firmware
and similar procedures, services (including support services), and
related resources.
..
(3) The term "information
technology" does not include any equipment that-
..
(i) Is acquired by a
contractor incidental to a contract; or
(ii) Contains imbedded
information technology that is used as an integral part of the
product, but the principal function of which is not the acquisition,
storage, manipulation, management, movement, control, display,
switching, interchange, transmission, or reception of data or
information. For example, HVAC (heating, ventilation, and air
conditioning) equipment, such as thermostats or temperature
control devices, and medical equipment where information
technology is integral to its operation, are not information technology.
.. "Inherently governmental function" means, as a matter
of policy, a function that is so intimately related to the public interest as
to mandate performance by Government employees. This definition is a policy
determination, not a legal determination. An inherently governmental
function includes activities that require either the exercise of discretion
in applying Government authority, or the making of value judgments in making
decisions for the Government.
Governmental functions normally fall into two
categories: the act of governing, i.e., the
discretionary exercise of Government authority, and monetary transactions and
entitlements.
(i) Bind the United
States to take or not to take some action by contract, policy,
regulation, authorization, order, or otherwise;
..
(ii) Determine,
protect, and advance United States economic, political, territorial,
property, or other interests by military or diplomatic action, civil
or criminal judicial proceedings, contract management, or otherwise;
..
(iii) Significantly
affect the life, liberty, or property of private persons;
..
(iv) Commission,
appoint, direct, or control officers or employees of the United
States; or
..
(v) Exert ultimate
control over the acquisition, use, or disposition of the property,
real or personal, tangible or intangible, of the United States,
including the collection, control, or disbursement of Federal funds.
(2) Inherently
governmental functions do not normally include gathering information
for or providing advice, opinions, recommendations, or ideas to
Government officials. They also do not include functions that are
primarily ministerial and internal in nature, such as building
security, mail operations, operation of cafeterias, housekeeping,
facilities operations and maintenance, warehouse operations, motor
vehicle fleet management operations, or other routine electrical or
mechanical services.
..
The list of commercial activities included in
the attachment to Office of Management and Budget (OMB) Circular No.
A-76 is an authoritative, nonexclusive list of functions that
are not inherently governmental functions.
.. "Inspection" means examining and testing supplies or
services (including, when appropriate, raw materials, components, and
intermediate assemblies) to determine whether they conform to contract
requirements.
.. "Insurance" means a contract that provides that for a
stipulated consideration, one party undertakes to indemnify another against
loss, damage, or liability arising from an unknown or contingent event.
.. "Invoice" means a contractor's bill or written request
for payment under the contract for supplies delivered or services performed
(see also "proper invoice").
.. "Irrevocable letter of credit" means a written
commitment by a federally insured financial institution to pay all or part of
a stated amount of money, until the expiration date of the letter, upon the
Government's (the beneficiary) presentation of a written demand for payment.
Neither the financial institution nor the offeror/contractor can revoke or
condition the letter of credit.
.. "Labor surplus area" means a geographical area
identified by the Department of Labor in accordance with 20 CFR part 654,
subpart A, as an area of concentrated unemployment or underemployment or an
area of labor surplus.
.. "Labor surplus area concern" means a concern that
together with its first-tier subcontractors will perform substantially in
labor surplus areas. Performance is substantially in labor surplus areas if
the costs incurred under the contract on account of manufacturing,
production, or performance of appropriate services in labor surplus areas
exceed 50 percent of the contract price.
.. "Latent defect" means a defect that exists at the time
of acceptance but cannot be discovered by a reasonable inspection.
.. "List of Parties Excluded from Federal Procurement and
Nonprocurement Programs" means a list compiled, maintained, and distributed
by the General Services Administration containing the names and other
information about parties debarred, suspended, or voluntarily excluded under
the Nonprocurement Common Rule or the Federal Acquisition Regulation, parties
who have been proposed for debarment under the Federal Acquisition
Regulation, and parties determined to be ineligible.
.. "Major system" means that combination of elements that
will function together to produce the capabilities required to fulfill a
mission need. The elements may include hardware, equipment, software, or any
combination thereof, but exclude construction or other improvements to real
property. A system is a major system if-
(1) The Department of
Defense is responsible for the system and the total expenditures for
research, development, test, and evaluation for the system are
estimated to be more than $115,000,000 (based on fiscal year 1990
constant dollars) or the eventual total expenditure for the
acquisition exceeds $540,000,000 (based on fiscal year 1990
constant dollars);
..
(2) A civilian agency
is responsible for the system and total expenditures for the system
are estimated to exceed $750,000 (based on fiscal year 1980 constant
dollars) or the dollar threshold for a "major system" established by
the agency pursuant to Office of Management and Budget
Circular A-109, entitled "Major System Acquisitions," whichever
is greater; or
..
(3) The system is
designated a "major system" by the head of the agency responsible
for the system (10 U.S.C. 2302 and 41 U.S.C. 403).
.. "Make-or-buy program" means that part of a
contractor's written plan for a contract identifying those major items to be
produced or work efforts to be performed in the prime contractor's facilities
and those to be subcontracted.
.. "Market research" means collecting and analyzing
information about capabilities within the market to satisfy agency needs.
.. "Master solicitation" means a document containing
special clauses and provisions that have been identified as essential for the
acquisition of a specific type of supply or service that is acquired
repetitively.
.. "May" denotes the permissive. However, the words "no
person may ..." mean that no person is required, authorized, or permitted to
do the act described.
.. "Micro-purchase" means an acquisition of supplies or
services (except construction), the aggregate amount of which does not exceed
$2,500, except that in the case of construction, the limit is $2,000.
.. "Micro-purchase threshold" means $2,500.
.. "Minority Institution" means an institution of higher
education meeting the requirements of Section 1046(3) of the Higher Education
Act of 1965 (20 U.S.C. 1067k), including a Hispanic-serving institution of
higher education, as defined in Section 316(b)(1) of the Act (20 U.S.C.
1101a).
.. "Must" (see "shall").
.. "National defense" means any activity related to
programs for military or atomic energy production or construction, military
assistance to any foreign nation, stockpiling, or space.
.. "Neutral person" means an impartial third party, who
serves as a mediator, fact finder, or arbitrator, or otherwise functions to
assist the parties to resolve the issues in controversy. A neutral person
may be a permanent or temporary officer or employee of the Federal Government
or any other individual who is acceptable to the parties. A neutral person
must have no official, financial, or personal conflict of interest with
respect to the issues in controversy, unless the interest is fully disclosed
in writing to all parties and all parties agree that the neutral person may
serve (5 U.S.C. 583).
.. "Nondevelopmental item" means-
(1) Any previously
developed item of supply used exclusively for governmental purposes
by a Federal agency, a State or local government, or a foreign
government with which the United States has a mutual defense
cooperation agreement;
..
(2) Any item described in
paragraph (1) of this definition that requires only minor modification
or modifications of a type customarily available in the commercial
marketplace in order to meet the requirements of the procuring
department or agency; or
..
(3) Any item of supply
being produced that does not meet the requirements of
paragraphs (1) or (2) solely because the item is not yet in use.
(2) By which, among
other things, the transferor guarantees performance of the contract,
the transferee assumes all obligations under the contract, and the
Government recognizes the transfer of the contract and related assets.
.. "Offer" means a response to a solicitation that, if
accepted, would bind the offeror to perform the resultant contract.
Responses to invitations for bids (sealed bidding) are offers called "bids"
or "sealed bids"; responses to requests for proposals (negotiation) are
offers called "proposals"; however, responses to requests for quotations
(simplified acquisition) are "quotations," not offers. For unsolicited
proposals, see Subpart 15.6.
.. "Offeror" means offeror or bidder.
.. "Option" means a unilateral right in a contract by
which, for a specified time, the Government may elect to purchase additional
supplies or services called for by the contract, or may elect to extend the
term of the contract.
.. "Organizational conflict of interest" means that
because of other activities or relationships with other persons, a person is
unable or potentially unable to render impartial assistance or advice to the
Government, or the person's objectivity in performing the contract work is or
might be otherwise impaired, or a person has an unfair competitive advantage.
.. "Overtime" means time worked by a contractor's
employee in excess of the employee's normal workweek.
.. "Overtime premium" means the difference between the
contractor's regular rate of pay to an employee for the shift involved and
the higher rate paid for overtime. It does not include shift premium, i.e., the difference between the contractor's regular rate
of pay to an employee and the higher rate paid for extra-pay-shift work.
.. "Ozone-depleting substance" means any substance the
Environmental Protection Agency designates in 40 CFR part 82 as-
(1) Class I, including,
but not limited to, chlorofluorocarbons, halons, carbon tetrachloride,
and methyl chloroform; or
..
(2) Class II, including,
but not limited to, hydrochlorofluorocarbons.
.. "Performance-based contracting" means structuring all
aspects of an acquisition around the purpose of the work to be performed with
the contract requirements set forth in clear, specific, and objective terms
with measurable outcomes as opposed to either the manner by which the work is
to be performed or broad and imprecise statements of work.
.. "Personal services contract" means a contract that, by
its express terms or as administered, makes the contractor personnel appear
to be, in effect, Government employees (see 37.104).
.. "Pollution prevention" means any practice that-
(1)(i) Reduces the amount
of any hazardous substance, pollutant, or contaminant entering any waste
stream or otherwise released into the environment (including fugitive
emissions) prior to recycling, treatment, or disposal; and
(2) Reduces or eliminates
the creation of pollutants through increased efficiency in the use of
raw materials, energy, water, or other resources; or
..
(3) Protects natural
resources by conservation.
.. "Possessions" includes the Virgin Islands,
Johnston Island, American Samoa, Guam, Wake Island, Midway Island,
and the Guano Islands, but does not include Puerto Rico, leased bases,
or trust territories.
.. "Power of attorney" means the authority given one
person or corporation to act for and obligate another, as specified in the
instrument creating the power; in corporate suretyship, an instrument under
seal that appoints an attorney-in-fact to act in behalf of a surety company
in signing bonds (see also "attorney-in-fact" at 28.001).
.. "Preaward survey" means an evaluation of a prospective
contractor's capability to perform a proposed contract.
..
"Preponderance of the evidence" means proof by
information that, compared with that opposing it, leads to the conclusion
that the fact at issue is more probably true than not.
.. "Pricing" means the process of establishing a
reasonable amount or amounts to be paid for supplies or services.
..
"Procurement" (see "acquisition").
.. "Procuring activity" means a component of an executive
agency having a significant acquisition function and designated as such by
the head of the agency. Unless agency regulations specify otherwise, the
term "procuring activity" is synonymous with "contracting activity."
.. "Projected average loss" means the estimated long-term
average loss per period for periods of comparable exposure to risk of loss.
.. "Proper invoice" means an invoice that meets the
minimum standards specified in 32.905(b).
.. "Purchase order," when issued by the Government, means
an offer by the Government to buy supplies or services, including
construction and research and development, upon specified terms and
conditions, using simplified acquisition procedures.
.. "Qualification requirement" means a Government
requirement for testing or other quality assurance demonstration that must be
completed before award of a contract.
.. "Qualified products list (QPL)" means a list of
products that have been examined, tested, and have satisfied all applicable
qualification requirements.
.. "Receiving report" means written evidence that
indicates Government acceptance of supplies delivered or services performed
(see Subpart 46.6). Receiving reports must meet the requirements of
32.905(c).
.. "Recovered material" means waste materials and
by-products recovered or diverted from solid waste, but the term does not
include those materials and by-products generated from, and commonly reused
within, an original manufacturing process. For use in Subpart 11.3 for paper
and paper products, see the definition at 11.301.
.. "Renewable energy" means energy produced by solar,
wind, geothermal, and biomass power.
.. "Renewable energy technology" means-
(1) Technologies that
use renewable energy to provide light, heat, cooling, or mechanical
or electrical energy for use in facilities or other activities; or
..
(2) The use of integrated
whole-building designs that rely upon renewable energy resources,
including passive solar design.
.. "Residual value" means the proceeds, less removal and
disposal costs, if any, realized upon disposition of a tangible capital
asset. It usually is measured by the net proceeds from the sale or other
disposition of the asset, or its fair value if the asset is traded in on
another asset. The estimated residual value is a current forecast of the
residual value.
.. "Responsible audit agency" means the agency that is
responsible for performing all required contract audit services at a business
unit.
.. "Responsible prospective contractor" means a
contractor that meets the standards in 9.104.
.. "Segment" means one of two or more divisions, product
departments, plants, or other subdivisions of an organization reporting
directly to a home office, usually identified with responsibility for profit
and/or producing a product or service. The term includes-
(1) Government-owned
contractor-operated (GOCO) facilities; and
..
(2) Joint ventures and
subsidiaries (domestic and foreign) in which the organization has-
(ii) Less than a
majority ownership, but over which it exercises control.
.. "Self-insurance" means the assumption or retention of
the risk of loss by the contractor, whether voluntarily or involuntarily.
Self-insurance includes the deductible portion of purchased insurance.
.. "Senior procurement executive" means the individual
appointed pursuant to section 16(3) of the Office of Federal Procurement
Policy Act (41 U.S.C. 414(3)) who is responsible for management direction of
the acquisition system of the executive agency, including implementation of
the unique acquisition policies, regulations, and standards of the executive
agency.
.. "Service-disabled veteran-owned small business
concern"-
(i) Not less than 51
percent of which is owned by one or more service-disabled veterans
or, in the case of any publicly owned business, not less than 51
percent of the stock of which is owned by one or more
service-disabled veterans; and
..
(ii) The management
and daily business operations of which are controlled by one or
more service-disabled veterans or, in the case of a veteran with
permanent and severe disability, the spouse or permanent caregiver
of such veteran.
(2) Service-disabled
veteran means a veteran, as defined in 38 U.S.C. 101(2), with a
disability that is service-connected, as defined in 38 U.S.C. 101(16).
.. "Shall" means the imperative.
.. "Shipment" means freight transported or to be
transported.
.. "Shop drawings" means drawings submitted by the
construction contractor or a subcontractor at any tier or required under a
construction contract, showing in detail either or both of the following:
(1) The proposed
fabrication and assembly of structural elements.
..
(2) The
installation
(i.e.,
form, fit, and attachment details) of materials or equipment.
.. "Should" means an expected course of action or policy
that is to be followed unless inappropriate for a particular circumstance.
..
"Signature" or "signed" means the discrete, verifiable
symbol of an individual that, when affixed to a writing with the knowledge
and consent of the individual, indicates a present intention to authenticate
the writing. This includes electronic symbols.
.. "Simplified acquisition procedures" means the methods
prescribed in Part 13 for making purchases of supplies or services.
.. "Simplified acquisition threshold" means $100,000,
except that in the case of any contract to be awarded and performed, or
purchase to be made, outside the United States in support of a contingency
operation (as defined in 10 U.S.C. 101(a)(13)) or a humanitarian or
peacekeeping operation (as defined in 10 U.S.C. 2302(8) and 41 U.S.C.
259(d)), the term means $200,000.
.. "Single, Governmentwide point of entry," means the one
point of entry to be designated by the Administrator of OFPP that will allow
the private sector to electronically access procurement opportunities
Governmentwide.
.. "Small business subcontractor" means a concern,
including affiliates, that for subcontracts valued at-
(1) $10,000 or less,
does not have more than 500 employees; and
..
(2) More than $10,000,
does not have employees or average annual receipts exceeding the size
standard in 13 CFR part 121 (see 19.102) for the product or service
it is providing on the subcontract.
.. "Small disadvantaged business concern" (except for
52.212-3(c)(2) and 52.219-1(b)(2) for general statistical purposes and
52.212-3(c)(7)(ii), 52.219-22(b)(2), and 52.219-23(a) for joint ventures
under the price evaluation adjustment for small disadvantaged business
concerns), means an offeror that represents, as part of its offer, that it is
a small business under the size standard applicable to the acquisition; and
either-
(1) It has received
certification as a small disadvantaged business concern consistent
with 13 CFR part 124, subpart B; and
(i) No material change
in disadvantaged ownership and control has occurred since its
certification;
..
(ii) Where the concern
is owned by one or more disadvantaged individuals, the net worth of
each individual upon whom the certification is based does
not exceed $750,000 after taking into account the applicable
exclusions set forth at 13 CFR 124.104(c)(2); and
..
(iii) It is identified,
on the date of its representation, as a certified small disadvantaged
business concern in the data base maintained by the Small Business
Administration (PRO-Net); or
(2) For a prime
contractor, it has submitted a completed application to the Small
Business Administration or a private certifier to be certified as
a small disadvantaged business concern in accordance with 13 CFR
part 124, subpart B, and a decision on that application is
pending, and that no material change in disadvantaged ownership
and control has occurred since it submitted its application.
In this case, a contractor must receive certification as a
small disadvantaged business by the Small Business Administration
prior to contract award.
.. "Sole source acquisition" means a contract for the
purchase of supplies or services that is entered into or proposed to be
entered into by an agency after soliciting and negotiating with only one
source.
.. "Solicitation" means any request to submit offers or
quotations to the Government. Solicitations under sealed bid procedures are
called "invitations for bids." Solicitations under negotiated procedures are
called "requests for proposals." Solicitations under simplified acquisition
procedures may require submission of either a quotation or an offer.
.. "Solicitation provision or provision" means a term or
condition used only in solicitations and applying only before contract award.
.. "Source selection information" means any of the
following information that is prepared for use by an agency for the purpose
of evaluating a bid or proposal to enter into an agency procurement contract,
if that information has not been previously made available to the public or
disclosed publicly:
(1) Bid prices
submitted in response to an agency invitation for bids, or lists
of those bid prices before bid opening.
..
(2) Proposed costs or
prices submitted in response to an agency solicitation, or lists of
those proposed costs or prices.
..
(7) Competitive range
determinations that identify proposals that have a reasonable chance
of being selected for award of a contract.
..
(8) Rankings of bids,
proposals, or competitors.
..
(9) Reports and
evaluations of source selection panels, boards, or advisory councils.
..
(10) Other information
marked as "Source Selection Information-See FAR 2.101 and 3.104"
based on a case-by-case determination by the head of the agency
or the contracting officer, that its disclosure would jeopardize
the integrity or successful completion of the Federal agency
procurement to which the information relates.
.. "Special competency" means a special or unique
capability, including qualitative aspects, developed incidental to the
primary functions of the Federally Funded Research and Development Centers to
meet some special need.
.. "State and local taxes" means taxes levied by the
States, the District of Columbia, Puerto Rico, possessions of the United
States, or their political subdivisions.
.. "Substantial evidence" means information sufficient to
support the reasonable belief that a particular act or omission has occurred.
.. "Substantially as follows" or "substantially the same
as," when used in the prescription and introductory text of a provision or
clause, means that authorization is granted to prepare and utilize a
variation of that provision or clause to accommodate requirements that are
peculiar to an individual acquisition; provided that the variation includes
the salient features of the FAR provision or clause, and is not inconsistent
with the intent, principle, and substance of the FAR provision or clause or
related coverage of the subject matter.
.. "Supplemental agreement" means a contract modification
that is accomplished by the mutual action of the parties.
.. "Supplies" means all property except land or interest
in land. It includes (but is not limited to) public works, buildings, and
facilities; ships, floating equipment, and vessels of every character, type,
and description, together with parts and accessories; aircraft and aircraft
parts, accessories, and equipment; machine tools; and the alteration or
installation of any of the foregoing.
.. "Surety" means an individual or corporation legally
liable for the debt, default, or failure of a principal to satisfy a
contractual obligation. The types of sureties referred to are as follows:
(1) An individual
surety is one person, as distinguished from a business entity,
who is liable for the entire penal amount of the bond.
..
(2) A corporate surety
is licensed under various insurance laws and, under its charter, has
legal power to act as surety for others.
..
(3) A cosurety is one
of two or more sureties that are jointly liable for the penal sum of
the bond. A limit of liability for each surety may be stated.
.. "Suspension" means action taken by a suspending
official under 9.407 to disqualify a contractor temporarily from Government
contracting and Government-approved subcontracting; a contractor that is
disqualified is "suspended."
.. "Task order" means an order for services placed
against an established contract or with Government sources.
.. "Taxpayer Identification Number (TIN)" means the
number required by the IRS to be used by the offeror in reporting income tax
and other returns. The TIN may be either a Social Security Number or an
Employer Identification Number.
.. "Unallowable cost" means any cost that, under the
provisions of any pertinent law, regulation, or contract, cannot be included
in prices, cost-reimbursements, or settlements under a Government contract to
which it is allocable.
.. "Unique and innovative concept," when used relative to
an unsolicited research proposal, means that-
(1) In the opinion
and to the knowledge of the Government evaluator, the meritorious
proposal-
(2) In this context,
the term does not mean that the source has the sole capability of
performing the research.
.. "United States," when used in a geographic sense,
means the 50 States and the District of Columbia, except as follows:
(1) For use in
Subpart 22.8, see the definition at 22.801.
..
(2) For use in
Subpart 22.10, see the definition at 22.1001.
..
(3) For use in
Subpart 22.13, see the definition at 22.1301.
..
(4) For use in
Part 25, see the definition at 25.003.
..
(5) For use in
Subpart 47.4, see the definition at 47.401.
.. "Unsolicited proposal" means a written proposal for a
new or innovative idea that is submitted to an agency on the initiative of
the offeror for the purpose of obtaining a contract with the Government, and
that is not in response to a request for proposals, Broad Agency
Announcement, Small Business Innovation Research topic, Small Business
Technology Transfer Research topic, Program Research and Development
Announcement, or any other Government-initiated solicitation or program.
.. "Value engineering" means an analysis of the functions
of a program, project, system, product, item of equipment, building,
facility, service, or supply of an executive agency, performed by qualified
agency or contractor personnel, directed at improving performance,
reliability, quality, safety, and life-cycle costs (Section 36 of the Office
of Federal Procurement Policy Act, 41 U.S.C. 401,
et seq). For use in the clause at 52.248-2, see the definition at
52.248-2(b).
.. "Value engineering change proposal (VECP)"-
(1) Means a proposal that-
(i)
Requires a change to the instant contract to implement; and
..
(ii) Results in
reducing the overall projected cost to the agency without
impairing essential functions or characteristics, provided,
that it does not involve a change-
(B) In research and
development (R&D) items or R&D test quantities that are
due solely to results of previous testing under the instant
contract; or
..
(C) To the contract
type only.
(2) For use in the
clauses at-
(i) 52.248-2, see the
definition at 52.248-2(b); and
..
(ii) 52.248-3, see
the definition at 52.248-3(b).
.. "Veteran-owned small business concern" means a small
business concern-
(1) Not less than 51 percent of which is owned by one or more veterans (as defined at 38 U.S.C. 101(2)) or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more veterans; and
..
(2) The management and
daily business operations of which are controlled by one or more veterans.
(1) Previously unused
raw material, including previously unused copper, aluminum, lead,
zinc, iron, other metal or metal ore; or
..
(2) Any undeveloped
resource that is, or with new technology will become, a source of
raw materials.
.. "Warranty" means a promise or affirmation given by a
contractor to the Government regarding the nature, usefulness, or condition
of the supplies or performance of services furnished under the contract.
.. "Waste reduction" means preventing or decreasing the
amount of waste being generated through waste prevention, recycling, or
purchasing recycled and environmentally preferable products.
.. "Women-owned small business concern" means a small
business concern-
(1) That is at least 51
percent owned by one or more women; or, in the case of any publicly
owned business, at least 51 percent of the stock of which is owned
by one or more women; and
..
(2) Whose management
and daily business operations are controlled by one or more women.