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Defense Federal Acquisition Regulation Supplement

{Part 239}--Acquisition of Information Resources

TABLE OF CONTENTS

239.001 Policy.

239.001-70Warner Amendment exemptions for Federal information processing (FIP) resources.

239.002 Delegations of procurement authority.

SUBPART 239.70--EXCHANGE OR SALE OF FEDERAL INFORMATION PROCESSING (FIP) RESOURCES

239.7000 Scope of subpart.

239.7001 Policy.

239.7002 Conditions for using exchange/sale.

239.7003 Procedures.

SUBPART 239.71--SECURITY AND PRIVACY FOR COMPUTER SYSTEMS

239.7100 Scope of subpart.

239.7101 General.

239.7102 Security against compromising emanations.

239.7102-1 General.

239.7102-2 Validation of TEMPEST compliance.

239.7102-3 Solicitation provisions and contract clauses.

SUBPART 239.72--STANDARDS

239.7200 Scope of subpart.

239.7201 General.

239.7202 Waivers.

SUBPART 239.73--ACQUISITION OF AUTOMATIC DATA PROCESSING EQUIPMENT BY DOD CONTRACTORS

239.7300 Scope of subpart.

239.7301 Applicability.

239.7302 Approvals and screening.

239.7303 Review and approval of leasing costs.

239.7304 Purchase option credits.

239.7305 Contractor documentation.

SUBPART 239.74--TELECOMMUNICATIONS SERVICES

239.7400 Scope.

239.7401 Definitions.

239.7402 Policy.

239.7403 Regulatory bodies.

239.7404 Foreign carriers.

239.7405 Authority to contract for telecommunications services.

239.7406 Cost or pricing data.

239.7407 Type of contract.

239.7407-1 General.

239.7407-2 Communication service authorizations (CSAs).

239.7408 Special construction.

239.7408-1 General.

239.7408-2Applicability of construction labor standards for special construction.

1991 EDITION

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Part 239--Acquisition of Information Resources

239.7409 Special assembly.

239.7410 Cancellation and termination.

239.7411 Contract clauses.

SUBPART 239.75--APPROPRIATIONS ACT RESTRICTIONS

239.7500 Scope of subpart

239.7501 Major automated information systems.

239.7501-1 Definitions

239.7501-2 Restriction.

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Part 239--Acquisition of Information Resources

PART 239 ACQUISITION OF INFORMATION RESOURCES

{239.001} Policy.

(1)The General Services Administration (GSA) has certain exclusive authority under "The Brooks Act" (40 U.S.C. 759) for the acquisition of Federal information processing (FIP) resources. GSA implements this authority in the Federal Information Resources Management Regulation (FIRMR), which is codified in 41 CFR 201. FIP resources are defined in the FIRMR at 201-4.001.

(2)When the acquisition is subject to "The Brooks Act" (40 U.S.C. 759), the FIRMR takes precedence over this part.

(3)Unless one of the exemptions of the Warner Amendment (10 U.S.C. 2315) applies, or unless otherwise specifically exempted, DoD must comply with FIRMR requirements.

(4)The Warner Amendment (10 U.S.C. 315), exempts certain DoD information resource acquisitions from the requirements of "The Brooks Act" and GSA's implementing regulations. If an acquisition is exempt under the Warner Amendment, clauses from the FIRMR do not have to be included in the solicitation or contract. However, all acquisitions for FIP resources, including those exempt under the Warner Amendment, must comply with Federal standards (see Subpart 239.72). Even if a Warner Amendment exemption applies, DoD may use the FIRMR simplified process (see 201-39.803 of FAR Appendix A) for obtaining the FIP resources when it is determined by the Contracting Officer to be in the Government's best interests.

{239.001-70} Warner Amendment exemptions for Federal information processing (FIP) resources.

(a) Exemptions.

Acquisitions for FIP resources are exempt from application of "The Brooks Act" if the function, operation, or use of such resources--

(1) Involves intelligence activities.

(2)Involves cryptologic activities related to national security.

(3) Involves command and control of the military forces.

(4) Involves equipment as an integral part of a weapon system.

(5)Is critical to the direct fulfillment of military or intelligence missions, provided that this exclusion shall not include FIP resources used for routine administrative and business applications such as payroll, finance, logistics, and personnel management.

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(b) General application.

(1)The term "involves" as used in paragraphs (a)(1) through (4) of this subsection is important in determining whether an acquisition is exempt under the Warner Amendment.

(i)To be exempt, at least one of the actual intended purposes of the function, operation, or use of the equipment or service being acquired must directly relate to the activities, functions, or equipment specified in paragraphs (a)(1) through (4) of this subsection.

(ii)The equipment and services may have additional purpose(s) related to activities, functions, and equipment other than those specified in (a)(1) through (4) of this subsection, e.g., routine business and administrative purposes.

(2)In contrast to paragraphs (a)(1) through (4) of this subsection, paragraph (a)(5) exempts acquisitions for ADPE (FIP resources) used for purposes that are critical to the direct fulfillment of military or intelligence missions and which do not include ADPE (FIP resources) used for routine administrative and business applications.

(c)Determinations as to applicability of the Warner Amendment shall be made in accordance with department/agency procedures.

{239.002} Delegations of procurement authority.

(1)When a delegation of procurement authority (DPA) is required, the contracting officer shall obtain the DPA before issuing the solicitation.

(2)The contracting officer shall include a clause in the solicitation and resulting contract which identifies whether the contracting action is being conducted under the regulatory DPA, a specific agency DPA, or a specific acquisition DPA. (See FIRMR 201-39.106-4.)

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Part 239--Acquisition of Information Resources

SUBPART 239.70--EXCHANGE OR SALE OF FEDERAL INFORMATION

PROCESSING (FIP) RESOURCES

{239.7000} Scope of subpart.

This subpart contains unique DoD procedures for the exchange or sale of FIP resources using the exchange authority of the General Services Administration (GSA).

{239.7001} Policy.

Agencies should consider exchange/sale when replacing Government-owned FIP resources. Exchange/sale is a method of--

(a) Transferring the equipment to be replaced to--

(1) Another Government agency, with reimbursement (sale); or

(2)The supplier of the replacement FIP resources for a trade-in allowance (exchange).

(b)Applying the proceeds of sale or the exchange allowance toward the purchase of replacement FIP resources.

{239.7002} Conditions for using exchange/sale.

(a) The requiring activity must make a written determination that--

(1)The trade-in allowance of the exchange or the proceeds of the sale will be applied to acquire the replacement FIP resources; and

(2)The exchange/sale transaction will foster the economic and efficient accomplishment of a continuing requirement.

(b) The replacement equipment must be a FIP resource--

(1) Similar to the resource being sold or exchanged;

(2)Which will satisfy the continuing requirement currently met by the resource being replaced.

{239.7003} Procedures.

(a) Comply with--

(1) This Subpart;

(2) Subpart 217.70; and

(3) DoD 7950.1-M, Defense Automation Resources Management Manual.

(b)Solicit offers both on an exchange (trade-in for allowance) or no exchange (no trade-in) basis.

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(c)Retain the option to exercise any exchange offer at the time of award.

(d)List and describe the exchange FIP resource in the solicitation. At a minimum include--

(1) A brief description of each item;

(2) Name of manufacturer;

(3) Equipment type;

(4) Model number; and

(5) The condition code and explanation of the code.

(e)Allow sufficient time in the contracting schedule to permit screening of the exchange FIP resource within the Government prior to contract award.

(f)Immediately upon receipt of offers, determine the highest exchange offer (if any) and use it to initiate screening under DoD 7950.1-M.

(1)Send an SF 120, Report of Excess Personal Property, to the Defense Automation Resources Information Center (ATTN: DARIC-R). Prominently display the following note on the original and five copies of the SF 120.

Exchange/"Sale" Property

A written administrative determination has been (will

be) made to apply the exchange allowance or proceeds of

"sale" to the acquisition of similar items.

(2)Include the following additional information with the SF 120--

(i)The identity of the offeror of the exchange;

(ii) The type of replacement equipment;

(iii) The acquisition method for the replacement equipment;

(iv)The anticipated purchase price for the replacement equipment;

(v)The delegation of procurement authority number assigned by GSA for the replacement equipment, if applicable; and

(vi) The name and telephone number of the contracting officer.

(g)Evaluate offers using the solicitation criteria, including consideration of any exchange allowance offers. Award can be made whether or not the replaced FIP resource is exchanged.

(h)Before a contract is awarded, consider the results of the screening. Do not make an exchange if another Government agency wants to acquire the replaced equipment.

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(1)If another agency is going to acquire the replaced equipment, do not include the exchange allowance in the contract price.

(2)The actual sale price to the agency acquiring the replaced equipment will be the exchange allowance (if any) of the successful offeror.

(i)If no Government agency wants to acquire the replaced equipment, the contract price shall include the exchange allowance, if any.

(j)If no exchange allowance was offered by the successful contractor, see DoD 7950.1-M for disposal instructions.

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SUBPART 239.71--SECURITY AND PRIVACY FOR COMPUTER SYSTEMS

{239.7100} Scope of subpart.

This subpart applies to all acquisitions for computer systems. It covers both security and Privacy Act considerations.

{239.7101} General.

Security requirements are in addition to provisions concerning protection of privacy of individuals (see FAR Subpart 24.1).

{239.7102} Security against compromising emanations.

{239.7102-1} General.

(a)The National Security or Atomic Energy Acts, as amended, may require protection of information that is--

(1) Processed;

(2) Transmitted;

(3) Stored;

(4) Retrieved; or

(5) Displayed.

(b)When acquiring computer equipment to be used to process classified information, the contracting officer shall obtain from the requiring activity--

(1)A determination as to whether the equipment must provide protection against compromising emanations; and

(2)Identification of an established National TEMPEST standard (e.g., NACSEM 5100, NACSIM 5100A) or a standard used by other authority.

(c)When contracts will require the use of FIP resources involving classified data, programs, etc., the contracting officer shall obtain from the requiring activity--

(1)Advice to whether to require contractors performing these services to use equipment meeting the requirements in paragraph (a) of this subsection (as prescribed in the clause at 252.239-7000, Protection Against Compromising Emanations;

(2)Information concerning any requirement for marking of TEMPEST--certified equipment (especially if to be reused); and

(3)Information on how to validate TEMPEST equipment compliance with required standards.

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{239.7102-2} Validation of TEMPEST compliance.

Include requirements for validation of TEMPEST compliance in Section E (Inspection and Acceptance) of the contract.

{239.7102-3} Solicitation provisions and contract clauses.

(a)When contracting for computer equipment or systems which are to be used to process classified information, use the clause at 252.239-7000, Protection Against Compromising Emanations.

(b)When acquiring computer equipment, software, or services subject to the Privacy Act, the FIRMR clause 201.39.5202-5, Privacy or Security Safeguards, may be used in solicitations and contracts in addition to the clause at FAR 52.224-2, Privacy Act.

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SUBPART 239.72--STANDARDS

{239.7200} Scope of subpart.

This subpart contains guidance for implementing--

(a) Federal Information Processing Standards (FIPS); and

(b) Federal Telecommunications Standards (FED-STD).

{239.7201} General.

GSA publishes a handbook titled "Federal ADP and Telecommunications Standards Index" which provides guidance to agencies on the use of Federal standards which apply to FIP resources. The index contains information about applicability for each standard and terminology for including standards in solicitations. FIRMR Bulletin C-3 contains additional information about the index. See FIRMR 201-20.303 and

201-39.1002 for guidance.

{239.7202} Waivers.

(a)The Secretary of Commerce has delegated to the Secretary of Defense the authority to waive FIP standards, in accordance with procedures established by the Secretary of Commerce. The Secretary of Defense redelegated that waiver authority to the Assistant Secretary of Defense for Command, Control, Communications, and Intelligence (ASD(C3I), as the DoD senior information resources management (IRM) official, designated pursuant to section 3506(b) of Title 44 of the U.S. Code (i.e., the Paperwork Reduction Act of 1980, as amended). The ASD(C3I) has redelegated to the senior IRM official of each military department the authority to approve waivers to FIP standards that are applicable to military department requirements. Waivers to FIP standards that are applicable to the requirements of DoD components outside the military departments must be approved by the ASD(C3I).

(b)Contracting officers shall ensure that all applicable FIP standards are incorporated into solicitations in accordance with FIRMR procedures, except for those FIP standards for which the requiring activity has obtained a waiver from the appropriate military department or DoD senior IRM official.

(c)As part of the Commerce Business Daily synopsis of a solicitation, contracting officers shall publish a notice of any determinations to waive any FIP standards that are applicable to the solicitation. If the waiver determination is made after the notice of the solicitation is published, the contracting officer shall amend the notice to announce the waiver determination.

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SUBPART 239.73--ACQUISITION OF AUTOMATIC DATA PROCESSING

EQUIPMENT BY DOD CONTRACTORS

{239.7300} Scope of subpart.

This subpart prescribes approval requirements for automatic data processing equipment (ADPE) acquired (purchased or leased) by contractors for use in performing DoD contracts.

{239.7301} Applicability.

(a) This subpart applies when--

(1)The contractor acquires ADPE for the account of the Government;

(2)The contractor acquires ADPE and title will pass to the Government; or

(3) The contractor leases ADPE and--

(i) The ADPE is not for the account of the Government;

(ii) Title will not pass to the Government; and

(iii)The contractor will charge the total cost of the lease to one or more Government contracts requiring the negotiation or determination of costs.

(b)This subpart does not apply to ADPE acquired as a component of an end item.

{239.7302} Approvals and screening.

(a)The requirements of this section highlight the redistribution requirements of DoD 7950.1-M, Defense Automation Resources Management Manual, and are in addition to those at FAR 45.302.

(b)If the contractor proposes acquiring ADPE subject to 239.7301(a)(1) and (2),--

(1)The contracting officer shall require the contractor to submit, through the administrative contracting officer, the documentation in 239.7305.

(2) The administrative contracting officer--

(i)Submits a request for screening the requirement against the pool of Government-owned ADPE to determine if available excess equipment could satisfy the contractor's needs. The request should include the contractor's supporting documentation. The request is sent to--

Director, Defense Automation Resources Information Center (DARIC)

ATTN: DARIC-R

Cameron Station

Alexandria, VA 22304-6100

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(ii)Upon receipt of and based on screening results from DARIC, advises the contractor that excess ADPE--

(A) Is available pursuant to DoD 7950.1-M; or

(B)Is not available and contractor may proceed with acquisition of the equipment.

(3) The contracting officer--

(i) Reviews the contractor's documentation;

(ii) Decides whether to authorize the acquisition; and

(iii) Advises--

(A) The contractor if authorization is not granted; and

(B)The administrative contracting officer if authorization is granted.

{239.7303} Review and approval of leasing costs.

The cost principle in FAR 31.205-2, automatic data processing equipment leasing costs, requires the contractor to obtain contracting officer approval before incurring certain leasing costs.

(a)Before approving lease costs, meeting the criteria of FAR 31.205-2(b)(2)(iii), the contracting officer shall request and review the contractor supporting documentation described in 239.7305.

(b)The contracting officer shall conduct reviews of leasing costs, as warranted, meeting the criteria of FAR 31.205-2(d), to determine the continued need for leasing. In performing the review, the contracting officer shall request the contractor to update its supporting documentation.

(c)If the initial or annual reviews disclose no basis for nonconcurrence, the contracting officer will advise the contractor and, as appropriate--

(1) Enter into an advance agreement (see FAR 31.109);

(2) Obtain purchase option credits (see 239.7304).

{239.7304} Purchase option credits.

(a)If 100 percent of the lease costs are charged to Government cost-reimbursement contracts, the rental contract shall give the Government the initial option to use any purchase credits or other benefits earned through rental payments.

(b)If less than 100 percent of the lease costs are charged to Government cost-reimbursement contracts, the contracting officer shall--

(1)Encourage the contractor to incorporate in its rental contract the right to assign accrued purchase credits to the Government;

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(2)Obtain for the Government the right of first refusal on accrued purchase credits if the contractor elects not to exercise its purchase option; and

(3)Get the contractor's commitment to give the administrative contracting officer a 120-day advance notice of its intent to terminate a lease where the Government has rights in accrued purchase credits.

(c)Report purchase option credits as prescribed in DoD 7950.1-M.

{239.7305} Contractor documentation.

Contracting officers may tailor the documentation requirements in paragraphs (a) through (e) of this section.

(a) List of existing ADPE and an analysis of its use.

(1)List of each component identified by manufacturer, type, model number, location, date of installation, and how acquired (lease, purchase, Government-furnished). Identify those acquired specifically to perform a Government contract.

(2)Reliability and usage data on each component for the past 12 months.

(3)Identification of users supported by each component, including how much time each user requires the component and the related contract or task involved.

(b) List of new ADPE needed and reasons why it is needed.

(1) Estimates of the new equipment's useful life.

(2)List of tasks the new equipment is needed for and why, including estimated monthly usage for each major task or project.

(3) Anticipated software and telecommunications requirements.

(c) Selection of computer equipment.

(1) If the acquisition is competitive--

(i) List sources solicited and proposals received;

(ii) Show how the evaluation was performed;

(iii)Provide an explanation if the selected offer is not the lowest evaluated offer.

(2) If the acquisition is not competitive, state why.

(d) Cost.

(1) For purchases, state the ADPE cost.

(2)For leases, state the increase or decrease in monthly costs to the Government.

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(e) Lease versus purchase analysis.

When the proposed acquisition is a lease, provide a lease/purchase analysis using the format in Table 39-1, Suggested Purchase/Lease Analysis Format, or one substantially similar.

TABLE 39-1, SUGGESTED PURCHASE/LEASE ANALYSIS FORMAT

ADP System

As of

Date

(7-8) 1 2 3 4 5 6 7 8 9

Other

Avg. Orig. Current

ADPS Qty. Vendor Monthly Instal. Useful Purchase Equity Purchase

Components Rental/Lease Date Life Price Price

(A) (B) (C) (D)

(9-11

10-11) (12+13) (4x6) (15-14)

10 11 12 13 14 15 16

Vendors Owner Total Total

Purchase Residual Depreciation Other Owner Rental/Lease Differential

Price Value Costs Costs Costs Costs

(E) (F) (G) (H)

(A) Includes projected extra shift where necessary.

(B) Includes other costs (taxes, maintenance, insurance, etc.).

(C) Documentation must be provided and attached per FAR 31.205-2.

(D)Accrued equity on rented/leased equipment (accumulated rental credits).

(E) Residual value forecast at end of useful life.

(F)Includes taxes, maintenance, insurance, selling costs, lease cancellation costs, etc.

(G)When considering annual justification for retention of existing ADPE capacity and the need to continue leasing, only the remaining rental costs to be paid under the lease

should be shown.

(H) If lease is favorable, bracket differential figures.

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SUBPART 239.74--TELECOMMUNICATIONS SERVICES

{239.7400} Scope.

This subpart prescribes policy and procedures for acquisition of telecommunications services and maintenance of telecommunications security. Telecommunications services may also meet the definition of automatic data processing equipment.

{239.7401} Definitions.

As used in this subpart--

(a)"Common carrier" means any entity engaged in the business of providing telecommunications services which are regulated by the Federal Communications Commission or other governmental body.

(b)"Foreign carrier" means any person, partnership, association, joint-stock company, trust, governmental body, or corporation not subject to regulation by a U.S. governmental regulatory body and not doing business as a citizen of the United States, providing telecommunications services outside the territorial limits of the United States.

(c)"Governmental regulatory body" means the Federal Communications Commission, any statewide regulatory body, or any body with less than statewide jurisdiction when operating under the State authority. The following are not "governmental regulatory bodies"--

(1)Regulatory bodies whose decisions are not subject to judicial appeal; and

(2)Regulatory bodies which regulate a company owned by the same entity which creates the regulatory body.

(d)"Noncommon carrier" means any entity other than a common carrier offering telecommunications facilities, services, or equipment for lease.

(e)"Security," "sensitive information," and "telecommunications systems" have the meaning given in the clause at 252.239-7016, Telecommunications Security Equipment, Devices, Techniques, and Services.

(f)"Telecommunications" means the transmission, emission, or reception of signals, signs, writing, images, sounds, or intelligence of any nature, by wire, cable, satellite, fiber optics, laser, radio, or any other electronic, electric, electromagnetic, or acoustically coupled means.

(g)"Telecommunications services" means the services acquired, whether by lease or contract, to meet the Government's telecommunications needs. The term includes the telecommunications facilities and equipment necessary to provide such services.

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{239.7402} Policy.

(a) Acquisition.

(1)DoD policy is to acquire telecommunications services from common and noncommon telecommunications carriers--

(i)On a competitive basis, except when acquisition using other than full and open competition is justified.

(ii)Recognizing the regulations, practices, and decisions of the Federal Communications Commission (FCC) and other governmental regulatory bodies on rates, cost principles, and accounting practices;

(iii)Making provision in telecommunications services contracts for adoption of--

(A) FCC approved practices; or

(B)The generally accepted practices of the industry on those issues concerning common carrier services where--

(1)The governmental regulatory body has not expressed itself;

(2)The governmental regulatory body has declined jurisdiction; or

(3)There is no governmental regulatory body to decide.

(2)DoD's unique consumer needs in both volume and technology require DoD to participate actively in the rule making process of cognizant governmental regulatory bodies. DoD also must work with the government regulatory bodies and common carriers to be sure that in those areas in which the FCC cannot or will not rule, sound regulatory practices are followed. DoD should make every effort to avoid the time and expense of litigation by full and fair disclosure of both the carrier's and the DoD's position in advance.

(3)If actions do not produce reasonable or lawful rates, or when there is a refusal to provide required services or file appropriate tariffs, DoD should litigate. All contracts with the regulatory bodies should be through counsel under department/agency and Defense Information Systems Agency procedures.

(b) Security.

(1)The contracting officer shall ensure, in accordance with agency procedures, that purchase requests identify--

(i)The nature and extent of information requiring security during telecommunications;

(ii)The requirement for the contractor to secure telecommunications systems;

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(iii)The telecommunications security equipment, devices, techniques, or services with which the contractor's telecommunications security equipment, devices, techniques, or services must be interoperable; and

(iv)The approved telecommunications security equipment, devices, techniques, or services, such as found in the National Security Agency's Information Systems Security Products and Services Catalogue.

(2)Contractors and subcontractors shall provide all telecommunications security techniques or services required for performance of Government contracts.

(3)Except as provided in paragraph (b)(4) of this subsection, contractors and subcontractors shall normally provide all required telecommunications security equipment or devices as plant equipment in accordance with FAR Part 45. In some cases, such as for communications security (COMSEC) equipment designated as controlled cryptographic item (CCI), contractors or subcontractors must also meet ownership eligibility conditions.

(4)When the contractor or subcontractor does not meet ownership eligibility conditions, the head of the agency may authorize provision of the necessary facilities as Government-furnished property or acquisition as contractor-acquired property, as long as conditions of FAR 45.303-1(a) are met.

{239.7403} Regulatory bodies.

The FCC and other governmental regulatory bodies publish rules and regulations on the operations of common carriers and prescribe accounting principles to use to establish rates.

{239.7404} Foreign carriers.

(a)Frequently, foreign carriers are owned by the government of the country in which they operate. The foreign governments often prescribe the methods of doing business. In many countries, an international agreement with the host country sets guidelines for acquiring communication services. In some countries, a corporate subsidiary of a carrier not indigenous to the country (often a U.S. parent) is the sole source for telecommunications services.

(b)Contracts for telecommunications services in foreign countries should describe rates and practices in as much detail as possible. It is DoD policy not to pay discriminatory rates. DoD should pay a reasonable rate for telecommunications services or the rate charged the military of that country, whichever is less.

(c)Refer special problems with telecommunications acquisition in foreign countries to higher headquarters for resolution with appropriate State Department representatives.

{239.7405} Authority to contract for telecommunications services.

(a)The General Services Administration (GSA) has exclusive procurement authority for telecommunications services that meet the definition of Federal information processing resources inFIRMR 201-4 and that meet the applicability criteria in FIRMR 201-1. However, GSA may authorize agencies to contract for telecommunications services in

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certain instances under a delegation of GSA's exclusive procurement authority (see FIRMR 201-20.305).

(b)Under FIRMR 201-20.306, GSA authorizes the senior information resources management (IRM) officials of each military department and the senior IRM official of DoD to enter into multiyear contracts for telecommunications services under certain conditions. Contracting activities may enter into multiyear contracts for telecommunications services if--

(1)The senior IRM official has redelegated to the contracting office, GSA's exclusive procurement authority for FIP sources;

(2)The contract life, including options, does not exceed ten years; and

(3)The contracting activity complies with OMB budget and accounting procedures relating to appropriated funds.

(c) The senior IRM officials are--

(1) Army.

The Assistant Secretary of the Army (Research, Development, and Acquisition);

(2) Navy.

The Assistant Secretary of the Navy (Research, Development, and Acquisition);

(3) Air Force.

The Assistant Secretary of the Air Force (Acquisition); and

(4) The defense agencies.

Assistant Secretary of Defense for Command, Control, Communications, and Intelligence.

(d)The ten year authority in paragraph (b) of this section applies to communications service authorizations (239.7407-2) and other types of telecommunications contracts. It does not apply to basic agreements.

{239.7406} Cost or pricing data.

(a)Common carriers are not required to submit cost or pricing data before award of contracts for tariffed services, except as provided in paragraph (c) of this subsection. Rates or preliminary estimates quoted by a common carrier for tariffed telecommunications services are considered to be prices set by regulation within the provisions of 10 U.S.C. 2306a. This is true even if the tariff is set after execution of the contract.

(b)Rates or preliminary estimates quoted by a common carrier for nontariffed telecommunications services or by a noncommon carrier for any telecommunications service are not considered prices set by law or regulation. The provisions of 10 U.S.C. 2306a and FAR 15.804 apply in these circumstances.

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(c)Even when not required by 10 U.S.C. 2306a, contracting officers shall obtain certified cost or pricing data when unable to determine that the prices are reasonable on the basis of price analysis (see FAR 15.805-2). Situations in which cost or pricing data may be necessary are described in the clause at 252.239-7009, Submission of Cost or Pricing Data--Common Carriers.

(d)The contracting officer need not get cost or pricing data for each delivery order under a basic agreement which is negotiated for use by Government ordering activities and includes detailed and approved price schedules.

(e)The contracting officer shall specify the form and detail of the cost or pricing data (see FAR 15.804-6(a)). However, for data submitted by common carriers, the data may be in the same form and detail normally submitted to the governmental regulatory body having jurisdiction over the carrier if sufficient for cost or price analysis purposes.

(f)When obtaining cost or pricing data under this section, the contracting officer shall obtain a certificate of current cost and pricing data in the format shown at FAR 15.804-4(a). However, if the contracting officer is requesting cost or pricing data under paragraph (c) of this section from a common carrier furnishing telecommunications services under a tariff filed or to be filed, substitute the following certificate for that at FAR 15.804-4(a):

CERTIFICATE OF CURRENT COST OR PRICING DATA

(Common Carriers)

This is to certify that to the best of my knowledge and belief, the cost or pricing data submitted, either actually or by specific identification in writing, to the contracting officer or to the contracting officer's representative in support of * are accurate, complete, and current as of **. Rates are based on the data which will be used or are currently being used to justify tariffs, or rates for telecommunications services which are not based on the data, but are based on filed tariffs. I understand that the Government will use this cost and pricing data and this certification, if appropriate, in any proceedings relative to this tariffed service.

Firm Name Title Date of execution***

*Identify the proposal, quotation, request for price adjustment, or other submission involved, giving the appropriate identifying number.

**Insert the day, month, and year when price negotiations were concluded and price agreement was reached.

***Insert the day, month, and year of signing, which should be as close as practicable to the date when the price negotiations were concluded and the contract price was agreed to.

(End of certification)

1991 EDITION 239.74-5

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Part 239--Acquisition of Information Resources

{239.7407} Type of contract.

{239.7407-1} General.

In addition to acquisition methods described in the FAR, the method described in this section may be used to acquire telecommunications services.

{239.7407-2} Communication service authorizations (CSAs).

Basic agreements (see FAR 16.702) are used widely in conjunction with communication service authorizations to facilitate award of telecommunications services.

(a)Use DD Form 428, Communication Service Authorization (CSA), or an electronic data processing substitute to award, modify, cancel, or terminate telecommunications services. The CSA shall--

(1) Refer to the basic agreement;

(2)Specify the types and quantities and equipment to be provided as well as the tariff (or other price if a tariff is not available) of those services and equipment;

(3) Specify the premises involved;

(4) Cite the address for billing;

(5) Identify the disbursing office; and

(6) Provide funding information.

(b)Before awarding a CSA, comply with the requirements in FAR and DFARS, e.g., for competition, reviews, approvals, and determinations and findings.

(c) Include an expiration date in each CSA.

(d) Modify CSAs to reflect any price increases.

{239.7408} Special construction.

{239.7408-1} General.

(a)"Special construction" normally involves a common carrier giving a special service or facility related to the performance of the basic telecommunications service requirements. This may include--

(1) Moving or relocating equipment;

(2) Providing temporary facilities;

(3) Expediting provision of facilities; or

(4)Providing specially constructed channel facilities to meet Government requirements.

(b)Use this subpart instead of FAR Part 36 for acquisition of "special construction."

239.74-6 1991 EDITION

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(c) Special construction costs may be--

(1)A contingent liability for using telecommunications services for a shorter time than the minimum to reimburse the contractor for unamortized nonrecoverable costs. These costs are usually expressed in terms of a termination liability, as provided in the contract or by tariff;

(2) A onetime special construction charge;

(3) Recurring charges for constructed facilities;

(4) A minimum service charge;

(5) An expediting charge; or

(6) A move or relocation charge.

(d)When a common carrier submits a proposal or quotation which has special construction requirements, the contracting officer shall require a detailed special construction proposal. Analyze all special construction proposals to--

(1) Determine the adequacy of the proposed construction;

(2) Disclose excessive or duplicative construction; and

(3)When different forms of charge are possible, provide for the form of charge most advantageous to the Government.

(e)When possible, analyze and approve special construction charges before receiving the service. Impose a ceiling on the special construction costs before authorizing the contractor to proceed, if prior approval is not possible. Do not make final payment for special construction charges unless the charges are approved by the contracting officer.

{239.7408-2} Applicability of construction labor standards for special construction.

(a)The construction labor standards in FAR 22.4 ordinarily do not apply to special construction. However, if the special construction includes construction (as defined in FAR 36.102) of a public building or public work, the construction labor standards may apply. Determine applicability under FAR 22.402.

(b)Each CSA or other type contract which is subject to construction labor standards under FAR 22.402 shall cite that fact.

{239.7409} Special assembly.

(a)Special assembly is the designing, manufacturing, arranging, assembling, or wiring of equipment to provide telecommunications services that cannot be provided with general use equipment.

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Part 239--Acquisition of Information Resources

(b)Special assembly rates and charges shall be based on estimated costs. The contracting officer shall negotiate special assembly rates and charges before starting service whenever possible. When it is not possible to negotiate in advance, use provisional rates and charges subject to adjustment, until final rates and charges are negotiated. The CSAs authorizing the special assembly shall be modified to reflect negotiated final rates and charges.

{239.7410} Cancellation and termination.

(a)(1)Cancellation is stopping a requirement after placing of an order but before service starts.

(2)Termination is stopping a requirement after placing an order and after service starts.

(b)Determine cancellation or termination charges under the provisions of the applicable tariff or agreement/contract.

{239.7411} Contract clauses.

(a)In addition to other appropriate FAR and DFARS clauses, use the following clauses in solicitations, contracts, and basic agreements for telecommunications services. Modify the clauses only if necessary to meet the requirements of a governmental regulatory agency--

(1) 252.239-7002, Access;

(2)252.239-7003, Facilities and Services to be Furnished--Common Carriers;

(3)252.239-7004, Orders for Facilities and Services--Common Carriers;

(4) 252.239-7005, Rates, Charges, and Services--Common Carriers;

(5) 252.239-7006, Tariff Information;

(6)252.239-7007, Cancellation or Termination of Orders--Common Carriers;

(7) 252.239-7008, Reuse Arrangements;

(8)252.239-7009, Submission of Cost or Pricing Data--Common Carriers; and

(9) 252.239-7010, Audit and Records--Common Carriers.

(b)Use the following clauses in solicitations, contracts, and basic agreements for telecommunications services when the acquisition includes or may include special construction. Modify the clauses only if necessary to meet the requirements of a governmental regulatory agency--

(1) 252.239-7011, Special Construction and Equipment Charges; and

(2)252.239-7012, Title to Telecommunication Facilities and Equipment.

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(c)Use the following clauses in basic agreements for telecommunications services--

(1) 252.239-7013, Obligation of the Government;

(2)252.239-7014, Term of Agreement, and insert the effective date of the agreement in paragraph (a) of the clause; and

(3)252.239-7015, Continuation of Communications Service Authorizations, as appropriate, and insert in paragraph (a) of the clause, the name of the contracting office and the basic agreement or contract number which is being superseded.

(d)Use the clause at 252.239-7016, Telecommunications Security Equipment, Devices, Techniques, and Services, in solicitations and contracts when performance of a contract requires a securing telecommunications.

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Part 239--Acquisition of Information Resources

SUBPART 239.75--APPROPRIATIONS ACT RESTRICTIONS

{239.7500} Scope of subpart.

This subpart contains restrictions on the acquisition of information resources, imposed by Defense appropriations acts.

{239.7501} Major automated information systems.

{239.7501-1} Definitions.

As used in this section--

(a)"Automated information system" means a combination of information, computer and telecommunications resources and other information technology, and personnel resources which collects, records, processes, stores, communicates, retrieves, and displays information.

(b) "Major automated information system"--

(1)Means a new automated information system, or modernization of an existing automated information system modernization that-

(i)Has anticipated program costs in excess of $100 million during the period from the beginning of the need justification phase through the completion of the deployment phase for each automated information system site;

(ii)Has estimated program costs in excess of $25 million in any single year; or

(iii)Is designated as being of special interest by the Office of the Secretary of Defense.

(2)Does not include automated information systems which are an integral part of a weapon or weapon system, test support for a weapon or weapon system, or information technology basic research and development.

{239.7501-2} Restriction.

Section 8028 of the FY 1992 Defense Appropriations Act (Pub. L. 102-172) and similar sections in the FY 1993, FY 1994, FY 1995 Defense appropriations acts prohibit use of DoD appropriations for acquisition of major automated information systems, unless the systems have successfully completed oversight reviews required by DoD regulations.

DAC 91-11 239.75-1

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