3 : Procurement Policy      

The goal of the Federal Aviation Administration procurement system is to obtain high quality products, services, and real property in a timely, cost-effective manner, at prices that are fair and reasonable. The procurement system enables the FAA to be innovative and creative so that the right vendor is selected to implement a solution. The FAA procurement system is an integrated part of the lifecycle management process. The FAA procurement system focuses primarily on identifying sources, awarding, and administering contracts.

The FAA procurement system applies to all procurements conducted by the FAA, as set forth herein with the exception of assistance relationships, such as grants and cooperative agreements.

The FAA procurement system will:

Pursuant to the Federal Aviation Administration Reauthorization Act of 1996, Public Law 104-264, the Administrator is the final authority for carrying out all functions, powers, and duties of the Administration relating to the acquisition and maintenance of property and equipment of the Administration. The Administrator has broad authority "to enter into and perform such contracts, leases, cooperative agreements, or other transactions as may be necessary to carry out the functions of the Administrator and the Administration . . .with any Federal agency, or any instrumentality of the United States, any territory, or possession, or political subdivision thereof, any other governmental entity, or any person, firm, association, corporation, or educational institution, on such terms and conditions as the Administrator may consider appropriate."

Any member of a service organization or Office of Dispute Resolution for Acquisition (ODRA) who is a Federal employee that has a real or apparent conflict of interest must withdraw from participation in the procurement process when required by law (18 U.S.C. 208) or regulation (5 CFR Part 2635). To sustain the integrity of the procurement process, non-Federal members of a service organization or ODRA are held to the same standards.

Source selection information and proceedings must not be discussed outside the service organization. The Source Selection Official (SSO) must determine the extent to which source selection information is disclosed and must execute a certificate of nondisclosure as appropriate.

The policy of the FAA is to avoid awarding contracts to contractors who have unacceptable organizational conflicts of interest. The FAA will resolve organizational conflict of interest issues on a case-by-case basis; and when necessary to further the interests of the agency, will waive or mitigate the conflict at its discretion.

FAA is subject, with modifications as described in the Procurement Toolbox, to the Procurement Integrity Act (41USC 423).

FAA may, to the extent practicable and cost effective, use electronic commerce procedures and processes, including acceptance of electronic signatures, to conduct and administer procurement actions.  The Electronic Signatures in Global and National Commerce Act (E-SIGN) provides an equivalency between legally-required written records and the same information in electronic form.

Planning requirements apply to all FAA procurements, including interagency agreements, with the exception of real property, utilities, and those procurements using the commercial and simplified purchase method.

Procurement planning is an indispensable component of the total acquisition process. Service organizations are expected to use procurement planning as an opportunity to evaluate/review the entire procurement process, so that sound judgments and decision making will facilitate the success of the overall program. For procurements not covered by an implementation strategy and planning document, procurement planning should be appropriate and proportionate to the complexity and dollar value of the requirement.

For procurements not addressed in a program with an approved implementation strategy and planning document, the market analysis is to initiate industry involvement, develop and refine the procurement strategy, obtain price information, determine whether commercial items exist, determine the level of competition, identify market practices, or obtain comments on requirements. The magnitude and degree of formality of the market analysis should be proportionate to the contemplated procurement. The market analysis may be as simple as a telephone call or as formal as a market survey advertisement to learn of industry capabilities. All market analyses, formal or informal, should be appropriately documented.

A plan for each contemplated procurement or class of procurements should address the significant considerations of the procurement action. A procurement plan may cover more than one contract. The procurement plan represents the service organization agreement for conducting the procurement. For less complex procurements, procurement plans are not required if deemed unnecessary by the service organization.

As an alternative to a formal written procurement plan and its associated approvals, a Procurement Strategy Meeting (PSM), which includes representatives of those organizations with a vested interest in the contemplated procurement, may be held. Approval of the PSM presentation constitutes approval of the procurement approach. Minutes from a PSM may be substituted for a written procurement plan. The presentation should address all of the items that would have been addressed in a procurement plan for the contemplated requirement. The service organization should consider the dollar value, complexity, organizational issues, and other factors to determine whether a higher-level official should chair the meeting and approve the PSM presentation. A presentation should not be substituted for a written procurement plan when the service organization determines that a procurement plan is required or a single source procurement is appropriate.

An independent Government cost estimate (IGCE) is required for any anticipated procurement action (to include modifications) whose total estimated value is $100,000 or more, except for:

For procurements not covered in a program with an implementation strategy and planning document, the following elements should be considered in planning for procurements.

Preference should be given to using commercial and previously developed items whenever possible. Development of a product, and its associated costs and risks, should be avoided unless necessary to meet FAA needs. If developmental items are required, the need should be documented in the procurement plan.

The scope of a procurement in terms of complexity, period of performance, dollar value, risk, and other factors should be considered in planning a procurement. As the scope of a procurement increases, the risk of unsuccessful management of the procurement also increases. Appropriate trade-offs should consider elements such as: managing a large complex procurement versus several smaller phased procurements; the systems integration role; total systems responsibility; timing of benefits; technological obsolescence; and other factors.

Consideration should be given to releasing contract-related budget information to industry in situations where the procurement involves development or multiple-year funding and is likely to be conducted competitively. If the service organization decides to release the information, the decision should be identified in the procurement plan.

The FAA shall comply with Presidential directives, constitutional standards, public laws, and DOT Secretary Policy Statements to promote and expand procurement opportunities for Small Businesses, Socially and Economically Disadvantaged Small Businesses, women-owned small businesses, and service disabled veteran owned small businesses. FAA will work with the Department of Justice to ensure that programs designed to increase opportunities for disadvantaged businesses comply with the constitutional standards established by the Supreme Court in Adarand Constructors v. Peña, as well as the President's July 19, 1995, directive to the heads of executive departments and agencies on the "Evaluation of Affirmative Action Programs."

For complex systems or hardware acquisition, the service organization should coordinate with representatives of the Quality Assurance office as soon as procurement requirements are defined, to establish quality assurance requirements for the proposed procurement.

When planning procurements, the service organization should comply with applicable FAA labor relations directives.

Consideration should be given to methods of maintaining competition throughout the lifecycle of any product or service. Methods to be considered may include dual sourcing, obtaining reprocurement data and data rights, open system designs, and any other appropriate methods.

The service organization determines whether the procurement should be conducted on a competitive or single source basis. The rationale for the single source procurement should be included in the implementation strategy and planning document or the procurement plan. If an implementation strategy and planning document is not required and the service organization determines that based on the complexity of the procurement a procurement plan will be established, the procurement plan should include the justification for the single-source decision. Approval of the implementation strategy and planning document or the procurement plan constitutes approval of a single-source procurement; no further approval or documentation is necessary.

Early release of program documents can be an important part of communication with industry. Releasing draft functional requirements, draft specifications, or a draft screening information request (SIR) can be beneficial to industry, as well as the FAA. Early and more complete releases of the SIR and feedback from industry should be part of the market analysis strategy.

All procurements anticipated to exceed $100,000 must be publicly announced on the Internet or through other means. This requirement does not apply to noncompetitive awards to SEDB (8(a)) firms and SDVOSB, emergency single source actions, purchases from an established qualified vendor list (QVL) or FSS, exercise of options, or changes. For actions under $100,000, a public announcement is optional if it is not required by 3.2.1.3.12.2 .

All procurements of products available from Federal Prison Industries (FPI) anticipated to exceed $10,000 must be publicly announced on the Internet or through other means, including procurements where FPI products are determined not to be the best value to FAA at the market survey stage.  This requirement does not apply to a procurement that satisfies an exception in AMS Policy 3.8.4.2 (concerning procurement of FPI products).

OMB Circular A-76 (Revised), "Performance of Commercial Activities," establishes Federal policy for the competition of commercial activities. Inherently governmental activities are to be performed with Government personnel, but activities identified as not inherently governmental in nature are to be subjected to competition to determine if such activities should continue to be performed by Government personnel. The FAA will follow the policies of the Circular to the extent that such policies are consistent with FAA's statutory authority.

The Chief Financial Officer Act of 1990 (CFOA) includes a requirement for the FAA to furnish annual financial statements reflecting the assets of the agency to the Director of the Office of Management and Budget (DOMB) annually by March 31. The financial statements are subjected to annual independent audits to validate the conclusions of the agency regarding its financial position. DOMB then reports the audit results to Congress. In implementation of the CFOA, the service organization shall put in place appropriate contract line item structure and billing mechanisms for FAA contracts that enables the agency to accurately reflect the value of its assets, and assure that related accounting classifications are included on financial documents to generate the information needed for an accurate financial statement.

The Contracting Officer may set-aside procurements for competition among only offerors residing or doing business primarily in a geographic area where the President has declared a major disaster or emergency.

FAA may designate mission critical contracts that require continued contractor performance during times of National Emergency or Incidents of National Significance, such as pandemic influenza.  These contracts must include provisions and contractor plans detailing how essential services or supplies will still be adequately delivered.

Source selection policy and guidance apply to acquisitions for products and services except for real property, utilities, and agreements. There are two competitive procurement methods available for obtaining products and services through the FAA contracting process.

The FAA procures products and services from sources offering the best value to satisfy FAA's mission needs.  Considering complexity, dollar value, and availability of products and services in the marketplace, FAA has flexibility to use any method of procurement deemed appropriate to satisfy FAA's mission.

This section establishes the FAA's policy for evaluating and selecting sources for the award of complex, noncommercial competitive contracts. This process consists of up to five distinct phases, with the screening phase being the cornerstone. The five phases are:

Refer to the procurement planning section for further guidance.

Screening is the process by which the FAA will determine which offeror provides the best value to the FAA. The process is flexible and allows selection and award after one screening request. This process allows the FAA to make an award considering only price and the price-related factors included in the SIR. The number of distinct screening steps for a particular procurement will vary, based on the complexity of the procurement. Provided below is guidance associated with the screening phase.

The purpose of the SIR is to obtain information, which will ultimately allow the FAA to identify the offeror that provides the best value, make a selection decision, and award the contract to conclude the competitive process. A SIR is a request by the FAA for documentation, information, presentations, proposals, or binding offers. Three categories of SIRs (see below) may be used according to the procurement strategy adopted by the service organization. Once the public announcement has been released, the SIR may be released to start the competitive process. The service organization will determine the type(s) of SIR(s) that are appropriate for each procurement.

Communications with all potential offerors should take place throughout the source selection process. During the screening, selection, and debriefing phases of source selection, communications are coordinated with the CO. Communications may start in the planning phase and continue through contract award. All SIRs should clearly inform offerors how communications will be handled during the initial screening phase.

Once offerors have submitted responses to a SIR, the service organization will evaluate the submittals in accordance with the evaluation criteria stated therein and the evaluation plan. To be considered for an award, an offeror must submit a response to the initial SIR, within the time specified in the SIR.

If, after release of a SIR, it is determined that there has been a change in the FAA's requirement(s), all offerors competing at that stage should be advised of the change(s) and afforded an opportunity to update their submittals accordingly.

Based on a review of the service organization's evaluation report, the SSO may either:

The selection decision shall be based on the stated evaluation criteria including cost or price considerations to identify the best value.

Once an award has been made, all offerors who participated in the competitive process will be notified of the award and given three working days from receipt of the award notification to request a debriefing. Debriefings are intended to provide meaningful feedback to offerors on their submission. The purpose of the debriefing is to improve the offeror's ability to successfully compete for future FAA business by discussing the strengths and weaknesses of the offeror's submissions. The debriefing should provide the offeror with the following information:

A lessons learned memorandum is a valuable tool in which the service organization can relay its procurement experiences to other FAA acquisition personnel. Once an award has been made, the service organization should communicate its learning experiences. The communication should highlight those issues/processes that had significant impact on their procurement. Further, the service organization should discuss changes that could be made to ensure a more comprehensive evaluation and/or more timely award.

The FAA may contract with a single-source when in FAA's best interest and the rational basis for the decision is documented. This rational basis may be based on actions necessary and important to support FAA's mission, such as emergencies, standardization, and only source available to satisfy a requirement within the time required. For procurements under $10,000, there is no requirement for competition or single-source justification; requirements must not be split to meet this exception. This section 3.2.2.4 is not applicable to noncompetitive awards made to socially and economically disadvantaged businesses (SEDB)/(8(a)) or service-disabled veteran owned small businesses (SDVOSB) under AMS policy 3.6.

The single-source procurement process includes planning, communications, award, and lessons learned. The actions for an individual phase within the process may vary depending on the particular circumstances.

An emergency situation, including but not limited to a threat to loss of life or property, national security, or restoration of an air traffic control facility, may require immediate contracting with a single source.  In these instances, once funds are committed, the CO may verbally authorize a contractor to proceed and may combine single source phases or complete activities after the fact.  As a minimum and as soon as practical, the CO should:

For single-source non-emergency procurements, planning may include:

Communicating lessons learned is encouraged.

The FAA may acquire commercial products and services from the competitive market place by using the simplified purchase method described herein and best commercial practices. Commercial and simplified purchases are used for commercial items or for products or services that have been sold at established catalog or market prices and are generally purchased on a fixed-price basis. However, procurement of products available for purchase from Federal Prison Industries is governed by AMS 3.8.4.2.  

Procurement planning should be accomplished for all simplified and commercial purchases. The level of planning and announcement should be dictated by the nature and complexity of the requirement, commercial availability, dollar value, urgency of the requirement, and degree of previous procurement history.

The CO should solicit an appropriate number of vendors to ensure quality products and services are delivered in a timely manner at a fair and reasonable price. Requirements should be stated in commercial terms generally understood and accepted in the industry.

The CO should determine the appropriate screening approach and format for vendor's responses (e.g., electronic, written, oral, use of standard commercial or FAA forms). The CO may also conduct communications with individual offerors, as appropriate, to address offeror understanding of the requirement, performance capability, prices, and other terms and conditions. For commercially available products, the CO is encouraged to use "commercial competition techniques" such as continuing market research throughout the process by using vendor proposals as the source of prices and commercially available capabilities and sharing that information with other vendors.

The CO's selection decision should be based on the FAA's stated evaluation criteria. The selection decision for commercial or simplified purchases should be based on the best value to the FAA including, but not limited to, factors such as price, functional specifications, delivery capability, warranty, and payment terms. This may be accomplished through establishing specific evaluation criteria with an accompanying evaluation plan as described under Complex, Noncommercial Source Selection, and making the selection based on the stated criterion. It may also be based on the most favorable solution available in the commercial market, as determined by the FAA, as described under Commercial and Simplified Purchase Method, or through a combination of methods depending on complexity, risk, dollar value, and urgency of the requirement.

The method of selection and rationale for awards, and a determination that the price is fair and reasonable should be documented. The extent of the documentation depends on the complexity and dollar value of the procurement action.

The FAA may consider and accept unsolicited proposals when in the best interest of FAA. Unsolicited proposals are a valuable means for FAA to obtain innovative or unique methods or approaches to accomplishing its mission from sources outside FAA.  Advertising material, commercial item offers, contributions, or technical correspondence are not considered to be unsolicited proposals. A valid unsolicited proposal must:

Unsolicited proposals should be addressed to:

FAA personnel should not use any data, concept, idea, or other part of an unsolicited proposal as the basis, or part of the basis, for a SIR or in communications with any other firm unless the offeror is notified of and agrees to the intended use. However, this prohibition does not preclude using any data, concept, or idea available to FAA from other sources without restrictions.

This section applies to all contracts and to all proposed contracts with any prospective contractor that is located in the United States, its possessions, or Puerto Rico; or elsewhere, unless application would be inconsistent with the laws or customs where the contractor is located.

The CO shall ensure that contracts are awarded only to responsible contractors (see Section 3.2.2.2). No award shall be made unless the CO makes an affirmative determination of responsibility.

FAA will recognize the validity of contractor team arrangements, provided, the arrangements and company relationships are fully disclosed in an offer, or for arrangements entered into after submission of an offer, before the arrangement becomes effective.

FAA may suspend or debar contractors for cause. FAA will honor suspension, debarment, and ineligibility decisions of other agencies unless FAA has a compelling need to obtain the requirement from that contractor.

The requirements herein apply to all FAA procurements and agreements except real property and utilities.

The FAA will describe its needs clearly and generally in writing, absent special or emergency circumstances. Service organizations may describe needs as minimum requirements, goals, or in another form well suited to the contemplated procurement.

The FAA shall comply with Section 508 of the Rehabilitation Act of 1973 in developing, procuring, maintaining or using electronic and information technology. Section 508 of the Rehabilitation Act of 1973 applies to all new procurements after June 21, 2001.

This section describes policies for evaluating proposals for initial contract prices, subcontract prices, and contract modifications, except for real property and utilities.

Defense Contract Audit Agency audits shall be requested on all cost reimbursement (CR) contracts that exceed $100 million. In addition, an audit will be requested on at least 15% of all CR contracts under $100 million. For other contracts, the FAA policy is to employ any method of cost or price analysis to determine fair and reasonable prices for the procurement of products and services. Price analysis is the preferred method for evaluating competitive proposals.

Cost or pricing data shall not be required from offerors unless the CO determines price competition is not adequate to support a determination of price reasonableness. When the CO determines adequate price competition exists, cost or pricing data shall not be requested. In situations with established catalog or market prices, prices set by law or regulation, and or commercial items, price analysis is sufficient and cost or pricing data shall not be requested.

Pre-award audits and periodic incurred cost audits by a contractor's cognizant audit agency are the preferred mechanism to assist the contracting officer in ensuring the validity of indirect and direct cost billed under cost reimbursement contracts. The contracting officer is responsible for ensuring that the indirect and direct costs paid under a cost reimbursement contract are allowable. In situations where a cost-incurred audit is not obtained, the contracting officer will still ensure that only allowable costs are paid. The sponsoring organization will fund required pre- and post award audits and will include an estimate for the cost of the audits in the acquisition program baseline. The implementation strategy and planning document will also address the approach, responsible organizations, and activities for obtaining audits.(See appropriate templates for additional guidance)

Cost Accounting Standards (CAS) shall be mandatory for use by all contractors and subcontractors in accordance with 48 CFR Part 99 for estimating, accumulating, and reporting cost in connection with pricing and administration of, and settlement of disputes concerning, all negotiated prime and subcontract procurements in excess of $500,000, other than contracts or subcontracts that have been exempted by the regulations.

This section is applicable to contracts for procurement of all products and services.

Contracts may be of any type or combination of types except for cost plus a percentage of cost contracts, which are prohibited. The use of fixed-price contracts is strongly encouraged whenever appropriate. Development contracts may be incrementally phased fixed-price contracts. All contracts, except those issued in emergency situations, shall be in writing.

The types of contracts that may be used for FAA procurements are included in the toolbox. Types of contracts other than those specified in the toolbox may be used when approval has been obtained from an official one level above the CO within the contracting organization.

This policy is applicable to all contracts.

FAA business shall be conducted in a manner above reproach and, except as authorized by statute or regulation, with complete impartiality and with preferential treatment for none.

Purchase card policy and corresponding guidance apply only to actions conducted through the FAA purchase card program.

All procurements using an FAA purchase card must be conducted according to applicable laws, regulations, and FAA policy.  AMS procurement guidance for purchase cards establishes standards for competition and source selection that supersedes other applicable AMS policy and guidance.

Contract payment processes expedite the performance of essential contracts. The FAA will structure payment plans and schedules that are conducive to efficient and economical contract performance.

This section applies to all contracts except real property and utilities. This section includes:

Prudent contract payment schemes expedite the performance of essential contracts. The CO should strive to structure the contract to allow frequent partial deliveries. If partial deliveries are not possible or the interval between deliveries is long, non-delivery payments may be necessary for efficient and economical contract performance.

The FAA should make payments for all acceptable deliveries within 30 days after receipt of a proper invoice and receiving report. Interest will apply to any payment later than 30 days. However, except under contracts for services, interest will not apply to late payments on interim vouchers under time-and-material, labor-hour, and cost reimbursement contracts.

The CO may use any of the non-delivery payment methods available for use. Other types of non-delivery payments may be made as long as they are mutually agreed upon and the interest of the FAA and the U.S. taxpayer are protected (e.g., security, adequate accounting system, etc.). All non-delivery payment plans not described in this section require approval one level above the CO.

The FAA shall comply with the Anti-Deficiency Act and other fiscal laws.

Debt collection is the responsibility of the CO in coordination with the payment office. Interest shall be assessed on all uncollected debt in accordance with this section.

The FAA cost principles and procedures shall be used in price negotiated supply, service, experimental, developmental, and research contracts and contract modifications with commercial organizations whenever cost analysis is performed.

FAA cost principles and procedures shall be used for the pricing of contracts, subcontracts, and modifications to contracts and subcontracts whenever cost analysis is performed and the determination, negotiation, or allowance of costs when required by a contract clause.

This section applies to construction contracts subject to the Miller Act, and to any other contracts that the CO determines would benefit from use of bonds, guarantees, and insurance to protect FAA's interest.

The FAA will comply with the intent of the Miller Act (40 U.S.C. 270a-270f) by requiring payment and performance bonds for construction contracts over $100,000. The FAA may also require proposal guarantees, payment bonds, performance bonds, and insurance for any contract when necessary to protect FAA's interests.

This section prescribes guidance for (a) using tax clauses in contracts (including foreign contracts), (b) asserting immunity or exemption from taxes, and (c) obtaining tax refunds. It explains Federal, State, and local taxes on certain products and services acquired by executive agencies and the applicability of such taxes to the Federal Government. It is for the general information of Government personnel and does not present the full scope of the tax laws and regulations.

The FAA policy is to provide appropriate contract clauses for (a) Federal Excise Taxes levied on the sale or use of particular products or services, (b) exemption of Federal Excise Taxes, and (c) exemption of Federal purchases and property from state and local taxes. The service organization shall use the appropriate clauses for the tax situation at hand.

The policies prescribed in this section are applicable to all contracts involving intellectual property issues.

Patents, copyrights, and other rights in data are valuable intellectual property. The FAA acquires patents, copyrights, and other rights in data as necessary to:

The policies contained herein are applicable to FAA procurements for products and services and those procurements using credit cards, and purchase card checks, but excluding utilities, real property, and agreements. (Refer to the FAST procurement guidance, Section 3.6.1 for Small Business Development Guidance.) This policy does not apply to the procurement of products under AMS 3.8.4, Required Sources of Products/Services and Use of Government Sources, including the procurement of products that are available for purchase from Federal Prison Industries (FPI).  Acquisitions of products available from FPI must be conducted in accordance AMS 3.8.4.2.

The FAA shall implement and aggressively strive to provide small businesses and small businesses owned and controlled by socially and economically disadvantaged individuals attainable and reasonable opportunities to participate as prime contractors and subcontractors for the products and services procured by the FAA. The FAA's Small Business Development staff currently has and will continue to have responsibility for:

Prior to the end of each fiscal year, measurable annual FAA wide major procurement program goals (including subcontracting goals) will be established to provide attainable and reasonable opportunities for small businesses and small businesses owned and controlled by socially and economically disadvantaged individuals to participate in contracts awarded by the FAA for the next fiscal year.

When appropriate, individual procurements may be set aside for competitive award among small businesses.

When appropriate, individual procurements may be set aside for competitive award among very small businesses. Special attention will be given to service contracts for very small businesses.

Except for those acquisitions set aside for very small business concerns, or those acquisitions being purchased using the agency purchase card, or those acquisitions subject to AMS 3.8.4.2, each acquisition of supplies or services having an anticipated dollar value exceeding $10,000, but not over $100,000, is automatically reserved exclusively for SEDB (8(a)) vendors, unless the contracting officer, with review of the cognizant Small and Small Disadvantaged Utilization Specialist, determines there is not a reasonable expectation of obtaining offers from responsible SEDB (8(a)) concerns that are competitive in terms of market prices, quality and delivery. These procurements may be either competitive or noncompetitive.

Individual procurements may be noncompetitively awarded to SEDB (8(a)) vendors when the anticipated total value of the procurement (including all options) is $5.5 million or below for procurements assigned manufacturing North American Industry Classification System codes and $3.5 million or below for all other procurements. Where a procurement exceeds the noncompetitive threshold, the procurement may be awarded on a noncompetitive basis to SEDB (8(a)) vendors if (1) there is not a reasonable expectation that at least two or more SEDB (8(a)) sources will submit offers that are in the Government's best interest in terms of quality, price and/or delivery; or (2) the award will be made to a concern owned by an Indian tribe or an Alaska Native Corporation.

When appropriate, individual procurements may be awarded noncompetitively or set-aside competitively for award among service-disabled veteran owned small businesses.

When appropriate, subcontracting opportunities will be encouraged.

The Davis-Bacon Act (40 U.S.C. 276a-276a-7), Convict Labor (18 U.S.C. 4082 (c)(2)), Copeland Act (18 U.S.C. 874 and 40 U.S.C. 276c), Walsh-Healey Public Contracts Act (41 U.S.C. 35-45), Equal Employment Opportunity (Executive Order 11141 (29 FR 2477)), Service Contract Act (41 U.S.C. 351), and other labor laws and regulations will apply to acquisitions for products, services, and construction.

The FAA will comply with labor laws when acquiring products, services, and construction.

This section applies to all FAA SIRs and contracts performed in the United States.

It is the policy of the FAA to contract with entities that are in compliance with applicable environmental, energy, safety, and drug-free workplace laws, orders, and regulations.

Reserved.

The FAA policy promotes energy conservation and efficiency factors in acquisitions when their use would be meaningful, practical, and consistent with meeting FAA requirements. These factors should be identified in the planning and SIR documents.

The FAA Affirmative Procurement Program (APP) implements the national goals to minimize solid waste, prevent pollution, save energy and other resources, reduce greenhouse gas emissions, and encourage public support and participation. This APP applies to: a) all FAA acquisitions, including simplified purchases, in which an Environmental Protection Agency (EPA) designated item is acquired; b) contractors' operating FAA facilities; and c) if applicable, state and local recipients of assistance funding. Nothing in this APP should be used to negate any state or local affirmative procurement requirement that is more stringent than a similar requirement already being implemented under the APP.

The FAA must deem any offer unqualified and ineligible for award unless the offeror has certified that it is a drug free workplace. After contract award, if there is adequate evidence to suspect that the contractor submitted a false certification or failed to comply with the certification, the FAA may suspend payments, terminate the contract for default, debar or suspend the contractor, or take other appropriate action to obtain quality performance by a lawfully operating contractor.

It is the FAA policy to comply with Occupational Safety and Health Administration (OSHA) regulations on hazardous materials, conditions and precautions. To comply with these regulations, the FAA must obtain information from contractors when hazardous materials are provided to the FAA. Contractors are required to identify any hazardous materials delivered under a contract, as defined in Federal Standard 313; and must provide Material Safety Data Sheets for all identified hazardous materials.

The contractor is required to notify the FAA, prior to delivery, of radioactive material that requires specific licensing under the Atomic Energy Act of 1954; or material with a specific activity that is greater than .002 microcuries per gram, or a specific activity per item exceeds .01 microcuries.

The FAA will comply with the tenets of the Buy-American Act (41 U.S.C. 10a) as part of the agency's best value determination during the contractor selection process.

The FAA is subject to the requirements of paragraph 1544 of 25 U.S.C. that establishes an incentive payment for contractors of Federal agencies that subcontract with or use suppliers who are Indian organizations or Indian-owned economic enterprises in performing the contract. This incentive payment may be equal to 5% of the amount paid, or to be paid, to a qualifying subcontractor or supplier that is an Indian organization or Indian-Owned economic enterprise.

The FAA shall comply with Pub. L. 101-592, as amended by Pub. L. 104-113 in equipment and construction applications which require the use of high-strength fasteners.

Protection of privacy and freedom of information are applicable to all FAA procurements, agreements, real property, utilities, credit cards, commercial and simplified purchase method.

When the FAA contracts for the design, development, or operation of a system of records on individuals, the FAA shall apply the requirements of the Privacy Act to the contractor and its employees working on the contract.

It is the policy of the FAA to use various agreements, other than procurement contracts, to obtain or provide services and supplies when necessary to accomplish the mission of the FAA. These agreements may be made with another Federal agency or instrumentality of the Federal government, a modal administration within the Department of Transportation, a state, local government, municipality, or other public entity, and private entities. (See 49 U.S.C. 106(l)). The following is a list of the more commonly used agreements (other than procurement contracts):

Agreements with other Federal Agencies (as defined in section 551(1) of title 5) are appropriate where FAA provides services or supplies or facilities to another Federal agency, or where FAA is the requesting agency to receive services, or supplies, or facilities from another Federal agency or that agency's contractor. Where the FAA and the Department of Defense are engaged in joint actions to improve or replenish the national air traffic system, the AMS policies governing FAA acquisitions are applicable. In those instances where the FAA acquires goods or services through the Department of Defense or other agencies, the FAA is bound by the acquisition laws governing those agencies.

This section applies to advisory and assistance contracts and other services, including personal services such as employees support service as provided for in FAA's Personnel Management System. This section does not apply to FAA employees, temporary, part-time or permanent appointed or hired in accordance with the other applicable portions of the FAA Personnel Management System.

The FAA shall generally rely on the private sector for commercial services (see OMB Circular No. A-76, Policies for Acquiring Commercial or Industrial Products and Services Need by the Government). In no event may a contract be awarded for the performance of an inherently governmental function. Advisory and assistance contracts shall comply with all applicable laws concerning post-employment and other conflict of interest and ethics laws and policies.

The FAA may award personal services contracts when the head of a line of business determines that a personal service contract is in the best interest of the agency after thorough evaluation, which includes, but is not limited to the following factors:

Service contracts should incorporate performance based contracting methods to encourage contractor innovation and efficiency, and to help ensure contractors provide timely, cost-effective, and quality performance with measurable outcomes as opposed to either the manner by which the work is to be performed or broad and imprecise statements of work.

This section is applicable when FAA awards Federal Supply Schedule delivery orders for recurring products and services. Additionally, this section addresses requirements to utilize Federal Supply Schedules awarded by GSA, when the FAA is identified in the schedule as a mandatory/non-mandatory user of any supply/service on the schedule.

The FAA may consider awarding Federal Supply Schedule contracts, or placing orders against Federal Supply Schedules awarded by GSA, for recurring products and services when it is determined to be in the best interest of the FAA.

This section applies to procurement of all products and services, except for real property, utilities, and construction.

The CO may use available Government sources when they offer the best value to satisfy FAA's mission need. However, pursuant to FAA policy, the CO must acquire products and services offered through the Randolph-Sheppard Vending Facilities Program (20 U.S.C. 107) and AbilityOne (formerly the Javits-Wagner-O'Day Program) (41 U.S.C. 46).

This section applies to products, services and real property to the extent authorized by law.  For Real Property specific policy and Guidance see Section 4.2 Real Property.

It is the policy of the FAA to enter into leases for various products, services or real property when it is determined by the Contracting Officer, based on financial and other considerations, to be in the best interest of the Government compared to the outright purchase of such assets, real property, or services.

The FAA is leveraging its spending through strategic sourcing and will award contracts for products and services to help the agency optimize performance and minimize price to increase the value of each dollar spent. Therefore, when a needed product or service is available through a strategic sourcing contract, purchasing employees must use a strategic sourcing contract. 

This section applies to construction contracts, contracts for dismantling, demolition, or removal of improvements, and to the construction portion of contracts for products or services.

If portions of multipurpose contracts are so commingled that priced deliverables for construction, service, or supply cannot be segregated and the predominant purpose of the contract is construction, the contract will be classified as construction.

Protest and contract disputes guidance and principles outlined herein apply to all FAA Screening Information Requests (SIRs), contract awards, and contracts.

The FAA is committed to the early and expeditious resolution of controversy using mediation, fact-finding and other techniques collectively known as "alternative dispute resolution". The FAA has pledged to utilize ADR techniques to the maximum extent practicable when such voluntary techniques will produce a fair and expeditious disposition of a controversy.

The FAA Office of Dispute Resolution for Acquisition (ODRA) is established as an organization that is independent of agency organizations responsible for procurement actions. Pursuant to a delegation of authority by the Administrator, the Director of the ODRA manages the FAA dispute resolution process, promotes ADR, conducts dispute resolution proceedings and recommends action to the Administrator on matters concerning protests or contract disputes. The ODRA is authorized, among other things, to

Offerors and contractors initially should seek resolution of any concerns or controversies at the Contracting Officer level. Contracting Officers should make reasonable efforts to promptly and completely resolve such concerns or controversies, where possible, and will coordinate their dispute resolution efforts with the FAA Procurement Legal Division or their regional or center Assistant Chief Counsel's office.

ADR is the primary means of dispute resolution that is employed by the ODRA. Upon request, the Office of Dispute Resolution for Acquisition will make available FAA DROs or appropriately qualified persons from outside the FAA to serve as neutrals in ADR proceedings involving protests and contract disputes. The parties may also employ a neutral of their own choosing. With the agreement of the interested parties, the ODRA may provide ADR services in advance of the filing of a contract dispute or bid protest with the ODRA.

The FAA requires continued performance with respect to contract disputes arising under or related to a contract, in accordance with the provisions of the contract, pending resolution of the contract dispute.

The following matters may not be protested before the Office of Dispute Resolution for Acquisition:

Settlement discussions and documentation provided to facilitate settlement of the issues will be protected and confidential, to the extent provided by law, ADR agreements and ODRA Protective Orders.

The types of activities included in the contract administration phase are:

The terms and conditions of the contract shall be the guidance in performing these tasks.

This applies to contracts with the exception of real property and utilities, where a prime contractor may need to subcontract a portion of the work.

The CO shall consider requiring "Consent to Subcontracts" when the subcontract work is complex, the dollar value is substantial, or the Government's interest is not adequately protected by competition and the type of prime contract or subcontract.

The CO shall consider requiring "Consent to Subcontracts" when the subcontract work is complex, the dollar value is substantial, or the Government's interest is not adequately protected by competition and the type of prime contract or subcontract.

Government property administration guidance and procedures applies to all contracts awarded by the FAA with requirements for providing Government property to contractors, contractors' use and management of Government property, reporting, redistributing, and disposing of contractor inventory. It does not apply to providing property under any statutory leasing authority.

Contractors are ordinarily required to furnish all property necessary to perform Government contracts.  However, when contractors possess Government property, the FAA shall:

Quality Assurance policy and guidelines are applicable to all acquisitions for systems, equipment, material, and services.

For all acquisitions, the FAA shall:

Product Improvement/Technology Enhancement guidance and procedures apply to all FAA procurements, agreements, real property, utilities, and commercial and simplified purchase method.

The FAA encourages contractors to submit Product Improvement/Technology Enhancement proposals for review at any time during the performance of a contract. The ability to continuously exchange, upgrade, modify, or add new features to equipment and software in response to increased air traffic activity and/or new advancements in technology and methodology is essential. Contractor proposals which are particularly innovative and address savings for the FAA may be given appropriate consideration in the negotiation.

This section applies to all FAA contracts, with the exception of real property and utilities.

The termination clauses or other contract clauses authorize contracting officers to terminate contracts for convenience, or for default, and to enter into settlement agreements.

This section is applicable when the FAA intends to enter into, amend, or modify contracts in order to facilitate the national defense under the extraordinary emergency authority granted by Public Law 85-804 (referred to in this section as the "Act") as amended, and Executive Order 10789 (referred to in this section as the "Executive Order").

The FAA may authorize extraordinary contract relief pursuant to Public Law 85-804. Authority to provide such relief is retained by the DOT Secretary for indemnification requests, and by the FAA Administrator or designee for all other requests.

The Single Process Initiative (SPI)/Block Change Process is applicable to FAA contracts for which a single process concept paper has been submitted by a contractor and approved in accordance with the established procedures. The objective of the SPI/Block Change process initiated by the Department of Defense (DOD) and National Aeronautics and Space Administration (NASA) is to enable contractors to propose single processes that will meet the needs of multiple Government customers. This will reduce duplicative contractor systems and processes imposed by individual Government agency customer requirements. The initiative is expected to reduce contractor costs, improve efficiency, reduce product costs, and improve product quality. By participating in the SPI, the FAA's goal is to eliminate unique processes or systems required by the material and acquisition organizations of the agency. Provisions of 14 CFR Code of Federal Regulations and other FAA regulatory responsibilities regarding the design, production, airworthiness certification and continued airworthiness of aircraft, products, and parts thereof are not in any way part of or affected by the SPI.

The FAA intends to cooperate with the DCMC for the development and acceptance of beneficial single processes in facilities that produce products under contract for the FAA, DOD, and NASA. For each contract the cognizant FAA service organization will participate in the management council as appropriate and review proposed single process changes. Any changes beneficial to the FAA will be implemented by service organizations in the appropriate contracts. Participation in the single process initiative does not imply any transfer of responsibility or authority for FAA contracts. The FAA will maintain independent plant cognizance and presence.

First article testing and approval involves evaluating a contractor's initial, preproduction, or sample model or lot. FAA may utilize first article testing and approval to ensure that a contractor can furnish a product that conforms to all contract requirements for acceptance.

The CO shall close physically complete contracts and agreements in accordance with FAST Procurement Guidance. Closeout activities shall include completion and signing of the Contract Closeout Checklist and a Contract Completion Statement.

Transportation guidance and procedures are applicable to all contracts in applying contract transportation and traffic management considerations in the acquisition of products, acquisition of transportation and transportation-related services, and transportation assistance with traffic management. The making and administration of contracts under which payments are made from Government funds for (1) the transportation of products, (2) transportation-related services, (3) transportation of contractor personnel and their personal belongings, and (4) acquiring transportation or transportation-related services by contract methods other than bills of lading, transportation requests, transportation warrants, and similar transportation forms.

The CO shall ensure that instructions to contractors result in the most efficient and economical use of carrier services and equipment through transportation and traffic management administration. The contract office shall obtain traffic management advice and assistance in the consideration of transportation factors required for:

This section is applicable to all screening information requests and contracts.

When the statement of work for a contract requires the contractor to deliver any document that will be published, either electronically or in hard copy, for dissemination outside the FAA, or for broad dissemination within the FAA, the document must comply with FAA Order 1000.36, "FAA Writing Standards."

FAA clauses and provisions should be used when applicable in screening information requests and contracts and should be consistent with the procurement guidance and prescriptions in the FAST Procurement Toolbox.

The CO should ensure contractors are made aware of Executive Order  13423, dated January 24, 2007, related to submitting paper documents to the Government that are printed or copied double-sided on recycled paper.

The FAA will comply with the uniform reporting requirements of the Federal Procurement Data System.

Through the Department of Transportation's Assistant Secretary for Governmental Affairs, the FAA will notify Congress of contract awards and contract modifications.

The FAA will comply with the requirements of Executive Order 13043 entitled "Increasing Seat Belt Use in the U.S.".

This section is applicable to all screening information requests and contracts.

The acquisition community shall ensure an adequate level of security for contractor employees as stated in FAA Order 1600.72A, allowing for compliance with OMB Circular A-130, "Management of Federal Information Resources", Executive Order 12829 "National Industrial Security Program", and DOD Directives 5200.2 and 5220.22M.

Contractor employees (including contractors, subcontractors, or consultants) shall be subject to the same investigative and personal identification verification requirements as Federal employees if in similar positions requiring recurring access to FAA facilities or access to FAA information systems or sensitive information.

The CO will ensure that all proposed and awarded procurement actions contain appropriate provisions and clauses if access to classified information is required, in accordance with The National Industrial Security Program Operating Manual, DOD 5220.22-M and FAA Order 1600.72A, Contractor and Industrial Security Program.

The CO, in coordination with the service organization, will ensure that all contractual actions contain provisions and clauses to protect the unauthorized dissemination of FAA sensitive information. Such information may entail Sensitive Unclassified Information (SUI), For Official Use Only (FOUO), Sensitive Security Information (SSI), or any other designator assigned by the US Government to identify unclassified information that may be withheld from public release. The Freedom of Information Act (FOIA) provides in exemptions 2 through 9, the guidelines for withholding sensitive unclassified information from the public and how such information must be protected from unauthorized disclosure. Section 552a of Title 5, United States Code (the Privacy Act) identifies information, which if subject to unauthorized access, modification, loss, or misuse could adversely affect the national interest, the conduct of Federal programs or the privacy to which individuals are entitled.

The Facility Security Risk Management process, as developed through the FAA's Facility Security Management Program, FAA Order 1600.69, shall be an integral part of program concept, planning, engineering design, and the implementation of required protective measures maintained throughout the lifecycle for physical security enhancements.

The FAA is required by law, Federal Information Security Management Act, 2002 (FISMA), OMB Circular A-130, and other federal standards and regulations to provide security for all agency information that is collected, stored, processed, disseminated, or transmitted using agency or non-agency owned information systems.  For additional FAA ISS Program policy, see FAA Order 1370.82 (intranet.faa.gov/aio).