Sol_Doc_75F40125R00037_Attachment 8 - Active FAR - HHSAR Class Deviations.pdf

Attachment

DEPARTMENT OF HEALTH & HUMAN SERVICES Office of the Secretary

Washington, D.C. 20201

April 2, 2020

MEMORANDUM FOR: Heads of Contracting Activity

FROM: David R. Dasher //s//

Deputy Assistant Secretary for the Office of Acquisitions

Senior Procurement Executive

SUBJECT:

Class Deviation from the Federal Acquisition Regulation Regarding Flexibilities for the

Suspending or Debarring Official’s Correspondence with Contractors

PURPOSE:

This memorandum approves a class deviation from the Federal Acquisition Regulation (FAR) to provide flexibilities for Suspension and Debarring Officials who need to notify contractors of being suspended, proposed for debarment, or debarred.

EFFECTIVE DATE:

Immediately

EXPIRATION DATE:

This FAR class deviation is effective upon signature and remains in effect until it is incorporated in the FAR or is otherwise rescinded.

BACKGROUND:

The Civilian Agency Acquisition Council (CAAC) has issued CAAC Letter 2020-01, dated

April 1, 2020, allowing agencies to authorize a class deviation to provide flexibilities for

Suspending or Debarring Officials (SDOs) who need to correspond with contractors being suspended, proposed for debarment, or debarred.

FAR 9.406-3 and FAR 9.407-3 currently require contractors to be notified of a suspension, proposed debarment, or debarment action from the SDO via certified mail, return receipt requested. Unfortunately, as written the FAR precludes any other type of notification such as an electronic means of notification that may be beneficial during times of emergency or crisis such as those presented by the Novel Coronavirus 2019 (COVID-19) pandemic.

This class deviation will allow greater flexibility for SDOs by providing a means of electronic delivery of notices of suspension, proposed debarment, and debarment to contractors in addition to certified mail, return receipt requested as required under FAR 9.406-3 and FAR 9.407-3. The class deviation will also allow for greater flexibility in allowing contractors to make presentations via telephone or internet.

AUTHORITY:

This class deviation is issued under the authority of FAR 1.404 and HHSAR 301.4. This deviation is issued following consultation with the Chair of the Civilian Agency Acquisition

Council (CAAC) in accordance with FAR 1.404(a) and the HHS Senior Procurement Executive in accordance with HHSAR 301.401.

DEVIATION:

The areas of the FAR that are being amended by this class deviation are 9.406-3(b)(1), (c), and

(e); 9.407-3(b)(1), (c), and (d)(4).

APPLICABILITY:

This class deviation applies to all solicitations and contracts.

CAAC CONSULTATION:

The attached memorandum from the Chairman of the Civilian Agency Acquisition Council constitutes the consultation required by FAR 1.404 for class deviations.

Questions or comments pertaining to this class deviation may be directed to Shari Shor, Office of

Acquisition Policy at 202-731-3382 or Shari.Shor@hhs.gov .

Attachment 1: CAAC LETTER 2020-01, including Attachment A – FAR Deviation Text -

Baseline - FAR FAC 2020-05, Effective March 30, 2020

(Class Deviation 2020-01) mailto:Shari.Shor@hhs.gov

GSA Office of Governmentwide Policy CAAC Letter 2020-01

April 1, 2020

MEMORANDUM FOR CIVILIAN AGENCIES

FROM: WILLIAM CLARK

CHAIR

CIVILIAN AGENCY ACQUISITION COUNCIL (CAAC)

SUBJECT: Class Deviation from the Federal Acquisition Regulation Regarding Flexibilities for the Suspending or Debarring Official’s Correspondence with Contractors

This CAAC letter is being issued to serve as consultation in accordance with Federal Acquisition Regulation (FAR) 1.404 allowing agencies to authorize a class deviation to provide flexibilities for Suspending or Debarring Officials (SDOs) who need to correspond with contractors being suspended, proposed for debarment, or debarred.

FAR 9.406-3 and FAR 9.407-3 currently require contractors to be notified of a suspension, proposed debarment, or debarment action from the SDO via certified mail, return receipt requested. Unfortunately, as written the FAR precludes any other type of notification such as an electronic means of notification that may be beneficial during times of emergency or crisis such as those presented by the Novel Coronavirus 2019 (COVID-19) pandemic.

This class deviation will allow greater flexibility for SDOs by providing a means of electronic delivery of notices of suspension, proposed debarment, and debarment to contractors in addition to certified mail, return receipt requested as required under FAR 9.406-3 and FAR 9.407-3. The class deviation will also allow for greater flexibility in allowing contractors to make presentations via telephone or internet. The areas of the FAR that are being amended by this class deviation are: 9.406-3(b)(1), (c), and (e);

9.407-3(b)(1), (c), and (d)(4).

This CAAC letter constitutes consultation with the Chair of the CAAC required by FAR 1.404(a)(1). Agencies are advised to review any relevant clauses in their supplement, consult with their SDOs and take any action that is appropriate. It is

Flexibilities for Suspending and Debarring Official

Correspondence with Contractors recommended that the deviation be made effective immediately. Agencies should consider whether the deviation is still necessary when agency employees return to work in their Federal work space.

Agencies are reminded that FAR 1.404 requires agencies to furnish a copy of each approved class deviation to the GSA FAR Regulatory Secretariat. In light of the evolving situation concerning COVID-19, agencies should email the class deviation to GSARegSec@gsa.gov.

If you have any questions or require additional information about this Letter, please contact Curtis E. Glover, Sr. at (202) 295-7548 or at curtis.glover@gsa.gov@gsa.gov.

Attachment A mailto:GSARegSec@gsa.gov mailto:kevin.funk@gsa.gov

ATTACHMENT A

FAR DEVIATION TEXT – Baseline - FAR FAC 2020-05, Effective March 30, 2020

Additions are [bolded and bracketed], deletions are struck through.

9.406-3 Procedures.

(a) Investigation and referral. Agencies shall establish procedures for the prompt reporting, investigation, and referral to the debarring official of matters appropriate for that official’s consideration.

(b) Decisionmaking process.

(1) Agencies shall establish procedures governing the debarment decisionmaking process that are as informal as is practicable, consistent with principles of fundamental fairness. These procedures shall afford the contractor (and any specifically named affiliates) an opportunity to submit, in person, in writing, or through a representative, information and argument in opposition to the proposed debarment. [The debarring official may use flexible procedures to allow a contractor to present matters in opposition via telephone or internet. If so, the debarring official should change the notice in paragraph (c)(3)(iv) of this section to include those flexible procedures.]

(2) In actions not based upon a conviction or civil judgment, if it is found that the contractor’s submission in opposition raises a genuine dispute over facts material to the proposed debarment, agencies shall also—

(i) Afford the contractor an opportunity to appear with counsel, submit documentary evidence, present witnesses, and confront any person the agency presents; and

(ii) Make a transcribed record of the proceedings and make it available at cost to the contractor upon request, unless the contractor and the agency, by mutual agreement, waive the requirement for a transcript.

(c) Notice of proposal to debar. A notice of proposed debarment shall be issued by the debarring official [to] advising the contractor and any specifically named affiliates[.], by certified mail, return receipt requested—

[(1) The written notice shall be sent —

(i) By mail, to the last known street address;

(ii) To the last known facsimile number; or

(iii) To the last known email address.

(2) The notice shall be sent--

(i) To the contractor, the contractor’s identified counsel for purposes of the administrative proceedings, or the contractor’s agent for service of process. If sent by email, it shall be sent to the last known email addresses for all three, if known;

and

(ii) For each specifically named affiliate, to the affiliate itself, the affiliate’s identified counsel for purposes of the administrative proceedings, or the affiliate’s agent for service of process. If sent by email, it shall be sent to the last known email addresses for all three, if known.]

[(3) The notice shall state--]

[(i)](1) That debarment is being considered;

[(ii)](2) Of the reasons for the proposed debarment in terms sufficient to put the contractor on notice of the conduct or transaction(s) upon which it is based;

[(iii)](3) Of the cause(s) relied upon under 9.406-2 for proposing debarment;

[(iv)](4) That, within 30 days after receipt of the notice, the contractor may submit, in person, in writing, or through a representative, information and argument in opposition to the proposed debarment, including any additional specific information that raises a genuine dispute over the material facts;

[(v)](5) Of the agency’s procedures governing debarment decisionmaking;

[(vi)](6) Of the effect of the issuance of the notice of proposed debarment; and

[(vii)](7) Of the potential effect of an actual debarment.

(d) Debarring official’s decision.

(1) In actions based upon a conviction or civil judgment, or in which there is no genuine dispute over material facts, the debarring official shall make a decision on the basis of all the information in the administrative record, including any submission made by the contractor. If no suspension is in effect, the decision shall be made within 30 working days after receipt of any information and argument submitted by the contractor, unless the debarring official extends this period for good cause.

(2)(i) In actions in which additional proceedings are necessary as to disputed material facts, written findings of fact shall be prepared. The debarring official shall base the decision on the facts as found, together with any information and argument submitted by the contractor and any other information in the administrative record.

(ii) The debarring official may refer matters involving disputed material facts to another official for findings of fact. The debarring official may reject any such findings, in whole or in part, only after specifically determining them to be arbitrary and capricious or clearly erroneous.

(iii) The debarring official’s decision shall be made after the conclusion of the proceedings with respect to disputed facts.

(3) In any action in which the proposed debarment is not based upon a conviction or civil judgment, the cause for debarment must be established by a preponderance of the evidence.

https://www.acquisition.gov/far/html/Subpart%209_4.html#wp1083382

(e) Notice of debarring official’s decision.

(1) If the debarring official decides to impose debarment, the contractor and any affiliates involved shall be given prompt notice by certified mail, return receipt requested [means of delivery set forth in 9.406-3(c)] -

(i) Referring to the notice of proposed debarment;

(ii) Specifying the reasons for debarment;

(iii) Stating the period of debarment, including effective dates; and

(iv) Advising that the debarment is effective throughout the executive branch of the Government unless the head of an agency or a designee makes the statement called for by 9.406-1(c).

(2) If debarment is not imposed, the debarring official shall promptly notify the contractor and any affiliates involved, by certified mail, return receipt requested [means of delivery set forth in 9.406-3(c)].

(f)(1) If the contractor enters into an administrative agreement with the Government in order to resolve a debarment proceeding, the debarring official shall access the website (available at www.cpars.csd.disa.mil, then select FAPIIS) and enter the requested information.

(2) The debarring official is responsible for the timely submission, within 3 working days, and accuracy of the documentation regarding the administrative agreement.

(3) With regard to information that may be covered by a disclosure exemption under the Freedom of Information Act, the debarring official shall follow the procedures at 9.105-2(b)(2)(iv).

9.407-3 Procedures.

(a) Investigation and referral. Agencies shall establish procedures for the prompt reporting, investigation, and referral to the suspending official of matters appropriate for that official’s consideration.

(b) Decisionmaking process.

(1) Agencies shall establish procedures governing the suspension decisionmaking process that are as informal as is practicable, consistent with principles of fundamental fairness. These procedures shall afford the contractor (and any specifically named affiliates) an opportunity, following the imposition of suspension, to submit, in person, in writing, or through a representative, information and argument in opposition to the suspension. [The suspending official may use the flexible procedures in 9.406- 3(b)(1). If so, the suspending official should change the notice in paragraph (c)(5) of this section to include those flexible procedures.]

(2) In actions not based on an indictment, if it is found that the contractor’s submission in opposition raises a genuine dispute over facts material to the suspension and if no determination has been made, on the basis of Department of Justice advice, that substantial interests of the Government in pending or contemplated legal proceedings based on the same facts as the suspension would be prejudiced, agencies shall also— https://www.acquisition.gov/far/html/Subpart%209_4.html#wp1083363 http://www.cpars.csd.disa.mil/ https://www.acquisition.gov/far/html/Subpart%209_1.html#wp1084119

(i) Afford the contractor an opportunity to appear with counsel, submit documentary evidence, present witnesses, and confront any person the agency presents; and

(ii) Make a transcribed record of the proceedings and make it available at cost to the contractor upon request, unless the contractor and the agency, by mutual agreement, waive the requirement for a transcript.

(c) Notice of suspension. When a contractor and any specifically named affiliates are suspended, they shall be immediately advised by certified mail, return receipt requested [means of delivery set forth in 9.406-3(c)] -

(1) That they have been suspended and that the suspension is based on an indictment or other adequate evidence that the contractor has committed irregularities—

(i) Of a serious nature in business dealings with the Government or

(ii) Seriously reflecting on the propriety of further Government dealings with the contractor—any such irregularities shall be described in terms sufficient to place the contractor on notice without disclosing the Government’s evidence;

(2) That the suspension is for a temporary period pending the completion of an investigation and such legal proceedings as may ensue;

(3) Of the cause(s) relied upon under 9.407-2 for imposing suspension;

(4) Of the effect of the suspension;

(5) That, within 30 days after receipt of the notice, the contractor may submit, in person, in writing, or through a representative, information and argument in opposition to the suspension, including any additional specific information that raises a genuine dispute over the material facts; and

(6) That additional proceedings to determine disputed material facts will be conducted unless—

(i) The action is based on an indictment; or

(ii) A determination is made, on the basis of Department of Justice advice, that the substantial interests of the Government in pending or contemplated legal proceedings based on the same facts as the suspension would be prejudiced.

(d) Suspending official’s decision.

(1) In actions—

(i) Based on an indictment;

(ii) In which the contractor’s submission does not raise a genuine dispute over material facts; or

(iii) In which additional proceedings to determine disputed material facts have been denied on the basis of Department of Justice advice, the suspending official’s decision shall be based on all the information in the administrative record, including any submission made by the contractor.

https://www.acquisition.gov/far/html/Subpart%209_4.html#wp1083459

(2)(i) In actions in which additional proceedings are necessary as to disputed material facts, written findings of fact shall be prepared. The suspending official shall base the decision on the facts as found, together with any information and argument submitted by the contractor and any other information in the administrative record.

(ii) The suspending official may refer matters involving disputed material facts to another official for findings of fact. The suspending official may reject any such findings, in whole or in part, only after specifically determining them to be arbitrary and capricious or clearly erroneous.

(iii) The suspending official’s decision shall be made after the conclusion of the proceedings with respect to disputed facts.

(3) The suspending official may modify or terminate the suspension or leave it in force (for example, see 9.406-4(c) for the reasons for reducing the period or extent of debarment). However, a decision to modify or terminate the suspension shall be without prejudice to the subsequent imposition of—

(i) Suspension by any other agency; or

(ii) Debarment by any agency.

(4) Prompt written notice of the suspending official’s decision shall be sent to the contractor and any affiliates involved, by certified mail, return receipt requested [means of delivery set forth in 9.406- 3(c)].

(e)(1) If the contractor enters into an administrative agreement with the Government in order to resolve a suspension proceeding, the suspending official shall access the website (available atwww.cpars.csd.disa.mil, then select FAPIIS) and enter the requested information.

(2) The suspending official is responsible for the timely submission, within 3 working days, and accuracy of the documentation regarding the administrative agreement.

(3) With regard to information that may be covered by a disclosure exemption under the Freedom of Information Act, the suspending official shall follow the procedures at 9.105-2(b)(2)(iv).

https://www.acquisition.gov/far/html/Subpart%209_4.html#wp1086535 https://www.acquisition.gov/far/html/www.cpars.csd.disa.mil https://www.acquisition.gov/far/html/Subpart%209_1.html#wp1084119

May 5, 2020

FROM: David R. Dasher Deputy Assistant Secretary for the Office of Acquisitions Senior Procurement Executive

SUBJECT: Class Deviation (2020-04) from the Federal Acquisition Regulation to eliminate hard copy original documents, signatures, notarization, seals on bonds and other seals for certain contract requirements

EFFECTIVE DATE: Immediately

EXPIRATION DATE: This FAR class deviation is effective upon signature and remains in effect until further notice. HHS will consider whether to cancel the deviation after the COVID-19 emergency passes.

PURPOSE: This memorandum approves a class deviation from the Federal Acquisition Regulation (FAR) to authorize flexibility, in response to the Coronavirus Disease 2019 (COVID-19) national emergency, with regard to requiring hard copy original documents, original signatures, notarization, seals on bonds and other seals for certain contract requirements.

BACKGROUND: The Civilian Agency Acquisition Council (CAAC) has issued CAAC Letter 2020-04, dated May 1, 2020, allowing agencies to authorize a class deviation, in response to the Coronavirus Disease 2019 (COVID-19) national emergency. This deviation allows greater flexibility by eliminating the requirement for hard copy original documents, original signatures, notarization, seals on bonds and other scenarios confronting the acquisition workforce in connection with the COVID-19 pandemic.

Contracting officers shall use the following changes:

When obtaining financial protection against losses under contracts per FAR part 28:

● 28.101-3(c) allowing the use of electronic means is moved to an added section at 28.002 to apply the same flexibilities to all of part 28;

● 28.106-1 adding an exception to stamping a corporate seal on bonds;

● 28.106-8 allowing a signed statement by the contractor that the payment is due and owed;

● 28.203(b) not requiring the Standard Form 28 to be sworn and notarized;

● 28.203-5 allowing a written authorization of the release signed by the surety saying that it approves of such release;

● 52.228-11, Pledges of Assets (Aug 2018)(DEVIATION APR 2020), not requiring the Standard Form 28 to be sworn and notarized, in place of 52.228-11, Pledges of Assets (Aug 2018);

● 52.228-15, Performance and Payment Bonds—Construction (OCT 2010) (DEVIATION APR 2020), not requiring the seal when executing the standard forms required by the clause; and

● 52.228-16, Performance and Payment Bonds—Other than Construction (NOV 2006) (DEVIATION APR 2020), not requiring the seal when executing the standard forms required by the clause.

When processing assignment of claims per FAR subpart 32.8:

● 32.802(e) allowing the use of a copy of the assignment instrument; and

● 32.805(a), (b), (c), and (e) allowing the use of electronically signed documents and a copy of the assignment instrument.

When executing novation agreements and change-of-name agreements per FAR part 42:

● 42.1204(f) allowing the use of a copy of the documents;

● 42.1204(i) not requiring a seal on the Novation Agreement; and

● 42.1205(b) not requiring a seal on the Change-of-Name Agreement.

AUTHORITY: This class deviation is issued under the authority of FAR 1.404 and HHSAR 301.4. This deviation is issued following consultation with the Chair of the Civilian Agency Acquisition Council (CAAC) in accordance with FAR 1.404(a) and the HHS Senior Procurement Executive in accordance with HHSAR 301.401.

DEVIATION: The areas of the FAR being amended by this class deviation are shown in the Attachment to this Memorandum.

APPLICABILITY: This class deviation applies to all solicitations and contracts.

CAAC CONSULTATION: The attached memorandum from the Chairman of the Civilian Agency Acquisition Council constitutes the consultation required by FAR 1.404 for class deviations.

Questions or comments pertaining to this class deviation may be directed to Shari Shor, Office of Acquisition Policy at 202-731-3382 or Shari.Shor@hhs.gov.

Attachment: CAAC LETTER 2020-04, including Attachment – FAR Deviation Text.

Baseline - FAR FAC 2020-05, Effective March 30, 2020

(Class Deviation 2020-04)

GSA Office of Governmentwide Acquisition Policy

U.S. General Services Administration 1800 F Street, NW Washington, DC 20405 www.gsa.gov

May 1, 2020 CAAC LETTER 2020-04

CHAIR

CIVILIAN AGENCY ACQUISITION COUNCIL (CAAC)

SUBJECT: CAAC Consultation to Issue a Class Deviation from the Federal Acquisition Regulation (FAR) to eliminate hard copy original documents, signatures, notarization, seals on bonds and other seals for certain contract requirements

This CAAC letter is being issued to serve as consultation in accordance with FAR 1.404, allowing agencies to authorize a class deviation in response to the Coronavirus Disease 2019 (COVID-19) national emergency. During times of emergency or crisis such as this, it becomes difficult or impossible to obtain the services of notaries public. Social distancing policies and shelter-in-place orders have forced public and private sector employees to work from home, making it difficult for notaries to be present to witness oaths and affirmations and to physically affix their signature and notary stamp on documents. Remote online notarization is not approved in many states. Where approved, it requires prior certification of the notary, which requires additional time and money and may be difficult to obtain in the current environment. Equally difficult is for vendors and sureties to produce manual signatures and provide their seals on bonds.

The importance of original and notarized documents has dwindled in this electronic age. Currently, FAR 2.101 defines “signature” or “signed” to include electronic signatures, and FAR 4.502(d) expressly authorizes agencies to “accept electronic signatures and records in connection with government contracts.”

Agencies are encouraged to issue FAR deviations to allow greater flexibility by eliminating the requirement for hard copy original documents, original signatures, notarization, seals on bonds and other scenarios confronting the acquisition workforce in connection with the COVID-19 pandemic. If a FAR deviation is issued by their agencies consistent with this Letter, contracting officers shall use the following changes:

When obtaining financial protection against losses under contracts per FAR part 28:

● 28.101-3(c) allowing the use of electronic means is moved to an added section at 28.002 to apply the same flexibilities to all of part 28;

● 28.106-1 adding an exception to stamping a corporate seal on bonds;

● 28.106-8 allowing a signed statement by the contractor that the payment is due and owed;

● 28.203(b) not requiring the Standard Form 28 to be sworn and notarized;

● 28.203-5 allowing a written authorization of the release signed by the surety saying that it approves of such release;

● 52.228-11, Pledges of Assets (Aug 2018)(DEVIATION APR 2020), not requiring the Standard Form 28 to be sworn and notarized, in place of 52.228-11, Pledges of Assets (Aug 2018);

● 52.228-15, Performance and Payment Bonds—Construction (OCT 2010)(DEVIATION APR 2020), not requiring the seal when executing the standard forms required by the clause; and

● 52.228-16, Performance and Payment Bonds—Other than Construction (NOV 2006)(DEVIATION APR 2020), not requiring the seal when executing the standard forms required by the clause.

When processing assignment of claims per FAR subpart 32.8:

● 32.802(e) allowing the use of a copy of the assignment instrument; and

● 32.805(a), (b), (c), and (e) allowing the use of electronically signed documents and a copy of the assignment instrument.

When executing novation agreements and change-of-name agreements per FAR part 42:

● 42.1204(f) allowing the use of a copy of the documents;

● 42.1204(i) not requiring a seal on the Novation Agreement;

and

● 42.1205(b) not requiring a seal on the Change-of-Name

Agreement.

Agencies are advised to review any relevant clauses in their supplement and take any action that is appropriate. It is recommended that the deviation be made effective immediately.

Agencies should consider whether to cancel the deviation after the COVID-19 emergency passes.

Agencies are reminded that FAR 1.404 requires agencies to furnish a copy of each approved class deviation to the GSA Regulatory Secretariat. Agencies must email the deviation to GSARegSec@gsa.gov. Please include whether or not the document can be posted on acquisition.gov.

If you have any questions or require additional information about this Letter, please contact Zenaida Delgado on (202) 969- 7207 or at zenaida.delgado@gsa.gov.

mailto:zenaida.delgado@gsa.gov

FAR Deviation Text

Baseline is FAC 2020-05, effective on March 30, 2020.

Deviations are shown by [bracketed bold additions] and strikeouts.

FAR text unchanged shown as asterisks *** or *****

Part 28 – Bonds and Insurance

[28.002 Policy.

For purposes of this part, electronic, mechanically-applied and printed signatures, seals and dates may be used and shall be considered original signatures, seals and dates, without regard to the order in which they were affixed.]

Subpart 28.1 – Bonds and Other Financial Protections

28.101-3 Authority of an attorney-in-fact for a bid bond.

( c) For purposes of this section, electronic, mechanically-applied and printed signatures, seals a nd dates on the power of attorney shall be considered original signatures, seals and dates, wwithout regard to the order in which they were affixed.

[(c)] (d) * * *

[(d)] (e) * * *

[(e)] (f) * * *

28.106 Administration.

28.106-1 Bonds and bond-related forms.

The following Standard Forms (SF’s) and Optional Forms (OF’s), shall be used, except in foreign countries, when a bid bond, performance or payment bond, or an individual surety is required. The bond forms shall be used as indicated in the instruction portion of each form[, except that a seal is not required. For SF 28 also see 28.203(b)].

28.106-8 Payment to subcontractors or suppliers.

The contracting officer will only authorize payment to subcontractors or suppliers from an ILC (or any other cash equivalent security) upon a judicial determination of the rights of the parties, a signed notarized statement by the contractor that the payment is due and owed, or a signed agreement between the parties as to amount due and owed.

Subpart 28.2 – Sureties and Other Security for Bonds

28.203 Acceptability of individual sureties.

* * * (b) An individual surety must execute the bond, and the unencumbered value of the assets (exclusive of all outstanding pledges for other bond obligations) pledged by the individual surety, must equal or exceed the penal amount of each bond. The individual surety shall execute the Standard Form 28[, except that the words “being duly sworn, depose and say” on the Standard Form 28 are replaced with the word “affirm” and such Standard Form 28 is not required to be sworn and notarized,] and provide a security interest in accordance with 28.203-1. One individual surety is adequate support for a bond, provided the unencumbered value of the assets pledged by that individual surety equal or exceed the amount of the bond. An offeror may submit up to three individual sureties for each bond, in which case the pledged assets, when combined, must equal or exceed the penal amount of the bond. Each individual must accept both joint and several liability to the extent of the penal amount of the bond.* * *

28.203-5 Release of lien.

(a) After consultation with legal counsel, the contracting officer shall release the security interest on the individual surety’s assets using the Optional Form 90, Release of Lien on Real Property, or Optional Form 91, Release of Personal Property from Escrow, or a similar release as soon as possible consistent with the conditions in subparagraphs (a)(1) and (2) of this subsection. A surety’s assets pledged in support of a payment bond may be released to a subcontractor or supplier upon Government receipt of a Federal district court judgment, or a sworn statement by the subcontractor or supplier that the claim is correct along with a notarized [written] authorization of the release [signed] by the surety saying that it approves of such release.* * *

Part 32 – Contract Financing Subpart 32.8 – Assignment of Claims

32.802 Conditions.

* * *(e) The assignee sends a written notice of assignment together with a true copy of the assignment instrument to the-

(1) Contracting officer or the agency head;

(2) Surety on any bond applicable to the contract;

and

(3) Disbursing officer designated in the contract to make payment.

32.805 Procedure.

(a) Assignments.

(1) Assignments by corporations shall be-

(i) Executed [Signed] by an authorized representative;

(ii) Attested [Signed] by the secretary or the assistant secretary of the corporation; and

(iii) Impressed with the corporate seal or accompanied [Accompanied] by a true copy of the resolution of the corporation’s board of directors authorizing the signing representative to [sign]execute the assignment.

* * * (3) Assignments by an individual shall be signed by that individual[.]and the signature acknowledged before a notary public or other person authorized to administer oaths.

(b) Filing. The assignee shall forward [by email or other electronic means the notice of assignment and a copy of the instrument of assignment] to each party specified in 32.802(e)[.] an original and three copies of the notice of assignment, together with one true copy of the instrument of assignment. The true copy shall be a certified duplicate or photostat copy of the original assignment.

(c) Format for notice of assignment. The following is a suggested format for use by an assignee in providing the notice of assignment required by 32.802(e).

Notice of Assignment

To: ___________ [[Name, address and email address for] Address to one of the parties specified in 32.802(e)].

This has reference to Contract No. __________ dated ______, entered into between ______ [Contractor’s name and address] and ______ [Government agency, name of office, and address], for ________ [Describe nature of the contract].

Monies due or to become due under the contract described above have been assigned to the undersigned under the provisions of the Assignment of Claims Act of1940, as amended, (31 U.S.C.3727, 41 U.S.C.6305).

A true copy of the instrument of assignment executed by the Contractor on ___________ [Date], is attached to the original [this] notice.

Payments due or to become due under this contract should be made to the undersigned assignee.

Please return to the undersigned the three enclosed copies of this notice with appropriate notations showing the date and hour of receipt, and signed by the person acknowledging [acknowledge] receipt on behalf of the addressee [by return email or other electronic means to the undersigned].

Very truly yours, ______________________________________________ [Name of Assignee]

By ______________________________________ [Signature of Signing Officer]

_____________________________________________ [Title of Signing Officer]

______________________________________________ [Address of Assignee]

[ _______________________________________ [Email Address of Assignee]]

Acknowledgement

Receipt is acknowledged of the above notice and of a copy of the instrument of assignment. They were received ____(a.m.)

(p.m.) on ______, 20___.

[Signature]

__________________________________________________ [Title]

__________________________________________________ On behalf of

__________________________________________________ [Name of Addressee of this Notice]

(e) Release of assignment.

* * * (2) The assignee, under a further assignment or reassignment, in order to establish a right to receive payment from the Government, must file with [send to] the addressees listed in 32.802(e) a-

(i) Written notice of release of the contractor by the assigning financing institution;

(ii) Copy of the release instrument;

(iii) Written notice of the further assignment or reassignment; and

(iv) Copy of the further assignment or reassignment instrument.

(3) If the assignee releases the contractor from an assignment of claims under a contract, the contractor, in order to establish a right to receive payment of the balance due under the contract, must [send] file a written notice of release together with a true copy of the release of assignment instrument with [to] the addressees noted in 32.802(e).

PART 42—CONTRACT ADMINISTRATION AND AUDIT SERVICES

Subpart 42.12—Novation and Change-of-Name Agreements

42.1204 Applicability of novation agreements.

(f) Except as provided in paragraph (g) of this section, the contractor shall submit to the responsible contracting officer one copy of each of the following documents, as applicable, as the documents become available:

(1) An authenticated copy of the instrument effecting the transfer of assets; e.g., bill of sale, certificate of merger, contract, deed, agreement, or court decree.

(2) A certified copy of each resolution of the corporate parties’ boards of directors authorizing the transfer of assets.

(3) A certified copy of the minutes of each corporate party’s stockholder meeting necessary to approve the transfer of assets.

(4) An authenticated copy of the transferee’s certificate and articles of incorporation, if a corporation was formed for the purpose of receiving the assets involved in performing the Government contracts.

(i)

NOVATION AGREEMENT

(b)* * *

(9) The contracts shall remain in full force and effect, except as modified by this Agreement. Each party has executed this Agreement as of the day and year first above written.

United States of America, By _______________________________________________

Title _____________________________________________

ABC Corporation, By _______________________________________________

Title _____________________________________________

[Corporate Seal]

XYZ Corporation, By _______________________________________________

Title _____________________________________________

[Corporate Seal]

Certificate

I, ___________, certify that I am the Secretary of ABC Corporation, that ________________, who signed this Agreement for this corporation, was then _____________ of this corporation; and that this Agreement was duly signed for and on behalf of this corporation by authority of its governing body and within the scope of its corporate powers. Witness my hand and the seal of this corporation this day of __________________ 20 ___.

By _______________________________________________

[Corporate Seal]

Certificate

I, ____________, certify that I am the Secretary of XYZ Corporation, that ________________, who signed this Agreement for this corporation, was then _____________ of this corporation; and that this Agreement was duly signed for and on behalf of this corporation by authority of its governing body and within the scope of its corporate powers. Witness my hand and the seal of this corporation this day of ____________________20___.

By _______________________________________________

[Corporate Seal]

42.1205 Agreement to recognize contractor’s change of name.

(b)* * *

CHANGE-OF-NAME AGREEMENT

(b) In consideration of these facts, the parties agree that-

(1) The contracts covered by this Agreement are amended by substituting the name “ABC Corporation” for the name “XYZ Corporation” wherever it appears in the contracts; and

(2) Each party has executed this Agreement as of the day and year first above written.

United States of America, By _______________________________________________

Title _____________________________________________

ABC Corporation, By _______________________________________________

Title _____________________________________________

[Corporate Seal]

Certificate

I, ___________, certify that I am the Secretary of ABC Corporation; that ___________, who signed this Agreement for this corporation, was then _____________ of this corporation;

and that this Agreement was duly signed for and on behalf of this corporation by authority of its governing body and within the scope of its corporate powers. Witness my hand and the seal of this corporation this ________ day of ____________ 20___.

By _______________________________________________

[Corporate Seal]

Part 52 – Solicitation Provisions and Contract Clauses

52.228 [Reserved].

52.228-11 Pledges of Assets.

As prescribed in 28.203-6, insert the following clause:

Pledges of Assets (Aug 2018)[(DEVIATION APR 2020)]

(a) Offerors shall obtain from each person acting as an individual surety on a bid guarantee, a performance bond, or a payment bond -

(1) Pledge of assets; and

(2) Standard Form 28, Affidavit of Individual Surety[, except that the words “being duly sworn, depose and say” on the Standard Form 28 are replaced with the word “affirm” and the Standard Form 28 is not required to be sworn and notarized in block 12].

(b) Pledges of assets from each person acting as an individual surety shall be in the form of - * * *

52.228-15 Performance and Payment Bonds-Construction.

As prescribed in 28.102-3(a), insert a clause substantially as follows:

https://www.acquisition.gov/content/part-28-bonds-and-insurance#i1088607

PERFORMANCE AND PAYMENT BONDS-CONSTRUCTION (OCT 2010)[(DEVIATION

APR 2020)]

(b) Amount of required bonds. Unless the resulting contract price is $150,000 or less, the successful offeror shall furnish performance and payment bonds to the Contracting Officer as follows:

(1) Performance bonds (Standard Form 25[, except that a seal is not required]). The penal amount of performance bonds at the time of contract award shall be 100 percent of the original contract price.

(2) Payment bonds (Standard Form 25A[, except that a seal is not required]). The penal amount of payment bonds at the time of contract award shall be 100 percent of the original contract price.

(3) Additional bond protection.

(i) The Government may require additional performance and payment bond protection if the contract price is increased. The increase in protection generally will equal 100 percent of the increase in contract price.

(ii) The Government may secure the additional protection by directing the Contractor to increase the penal amount of the existing bond or to obtain an additional bond.

52.228-16 Performance and Payment Bonds-Other Than Construction.

As prescribed in 28.103-4 , insert a clause substantially as follows:

PERFORMANCE AND PAYMENT BONDS-OTHER THAN CONSTRUCTION (NOV 2006)

[(DEVIATION APR 2020)]

(b) The Contractor shall furnish a performance bond (Standard Form 1418[, except that a seal is not required]) for the protection of the Government in an amount equal to _______ percent of the original contract price and a payment bond Standard Form 1416[, except that a seal is not required]) in an amount equal to ___percent of the original contract price.

https://www.gsa.gov/forms-library/performance-bond https://www.gsa.gov/forms-library/payment-bond https://www.acquisition.gov/content/part-28-bonds-and-insurance#i1088657 https://www.gsa.gov/forms-library/payment-bond-other-construction-contracts

Alternate I (JUL 2000)[(DEVIATION APR 2020)]. As prescribed in 28.103-4 , substitute the following paragraphs (b) and (d) for paragraphs (b) and (d) of the basic clause:

(b) The Contractor shall furnish a performance bond (Standard Form 1418[, except that a seal is not required]) for the protection of the Government in an amount equal to ______ percent of the original contract price.

https://www.acquisition.gov/content/part-28-bonds-and-insurance#i1088657 https://www.gsa.gov/forms-library/performance-bond-other-construction-contracts

November 22, 2022

FROM: H. Katrina Brisbon //s//

Acting Deputy Assistant Secretary for the Office of Acquisitions

Senior Procurement Executive

SUBJECT: Federal Acquisition Regulation (FAR) Class Deviation (2022-01)

Regarding Requirements for Nonavailability Determinations Under the

Buy American Act

EFFECTIVE DATE: Immediately

EXPIRATION DATE: This class deviation is effective upon signature and remains in effect until the statutory change is incorporated in the FAR or this deviation is rescinded.

PURPOSE: This memorandum approves a class deviation from the Federal Acquisition

Regulation (FAR) to implement the Memorandum titled “Improving the Transparency of Made in America Waivers,” dated October 26, 2021, by the Made in America Office (MIAO) within the Office of Management and Budget (OMB) and the Office of Federal Procurement Policy

(OFPP).

BACKGROUND: Civilian Agency Acquisition Council (CAAC) Letter 2022-01, implementation of the Memorandum titled “Improving the Transparency of Made in America

Waivers,” dated October 26, 2021, by the Made in America Office (MIAO) within the Office of Management and Budget (OMB) and the Office of Federal Procurement Policy (OFPP).

The memorandum issued jointly by the MIAO and OFPP (MIAO memo) provides specific guidance to agencies on the use of a new dedicated portal (MadeinAmerica.gov), with regards to waivers under the Buy American statute. Note: the MIAO memo refers to the existing written “determinations” of the nonavailability exception under the Buy American statute in the

FAR as “Made in America waivers.” The MIAO memo builds on the guidance in OMB

Memorandum M- 21-26, Increasing Opportunities for Domestic Sourcing and Reducing the

Need for Waivers from Made in America Laws, dated June 11, 2021. OMB Memo M-21-26, in turn, outlined initial management steps to help agencies prepare for and support a centralized https://www.whitehouse.gov/wp-content/uploads/2021/10/Guidance-Memo-Improving-the-Transparency-of-Made-in-America-Waivers.pdf https://www.whitehouse.gov/wp-content/uploads/2021/10/Guidance-Memo-Improving-the-Transparency-of-Made-in-America-Waivers.pdf https://www.whitehouse.gov/wp-content/uploads/2021/10/Guidance-Memo-Improving-the-Transparency-of-Made-in-America-Waivers.pdf https://www.whitehouse.gov/wp-content/uploads/2021/10/Guidance-Memo-Improving-the-Transparency-of-Made-in-America-Waivers.pdf https://www.whitehouse.gov/wp-content/uploads/2021/10/Guidance-Memo-Improving-the-Transparency-of-Made-in-America-Waivers.pdf https://www.whitehouse.gov/wp-content/uploads/2021/10/Guidance-Memo-Improving-the-Transparency-of-Made-in-America-Waivers.pdf https://www.madeinamerica.gov/ https://www.whitehouse.gov/wp-content/uploads/2021/06/M-21-26.pdf https://www.whitehouse.gov/wp-content/uploads/2021/06/M-21-26.pdf https://www.whitehouse.gov/wp-content/uploads/2021/06/M-21-26.pdf strategic waiver review process as required by Executive Order (EO) 14005, Ensuring the

Future Is Made in All of America by All of America’s Workers (86 FR 7475,January 28, 2021).

The MIAO memo prescribes certain requirements pertaining to posting of individual nonavailability waiver determinations under the Buy American statute for agencies. Those requirements become effective on November 16, 2021, for agencies subject to the Chief

Financial Officers Act1 and on January 1, 2022, for all other agencies. Agencies should be aware that page 3 of the MIAO memo also includes instructions for their internal protocols as they pertain to nonavailability waiver determinations.

AUTHORITY: This class deviation is issued under the authority of the Federal Acquisition

Regulation FAR 1.404 and the Department of Health and Human Services Acquisition

Regulation HHSAR 301.401. CAAC Letter 2022-01, CAAC Consultation to Issue a Class

Deviation from the Federal Acquisition Regulation Regarding Requirements for Nonavailability

Determinations Under the Buy American Statue, issued November 16, 2021(Attachment 1) by the Chair of the Civilian Agency Acquisition Council (CAAC), constitutes consultation with the

Chair of the CAAC as required by FAR 1.404(a)(1).

DEVIATION: This class deviation amends the FAR text at FAR 25.102(b) and other conforming changes throughout FAR Part 25 is provided consistent with the MIAO memo and the FAR council memo.

ATTACHMENTS:

Attachment 1: CAAC Letter 2022-01- Federal Acquisition Regulation (FAR) Class Deviation

(2022-01) Regarding Requirements for Nonavailability Determinations Under the Buy American

Act (Attachment – Deviation to FAR text included)

(Class Deviation 2022-01) https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers

GSA Office of Governmentwide Policy

November 16, 2021

CAAC Letter 2022-01

CHAIR

CIVILIAN AGENCY ACQUISITION COUNCIL (CAAC)

SUBJECT: Class Deviation From the Federal Acquisition Regulation (FAR) Regarding

Requirements for Nonavailability Determinations Under the Buy American

Statute

This CAAC Letter is being issued to serve as consultation in accordance with FAR 1.404, authorizing agencies to issue a class deviation to implement the Memorandum titled “Improving the Transparency of Made in America Waivers,” dated October 26, 2021, by the Made in

America Office (MIAO) within the Office of Management and Budget (OMB) and the Office of

Federal Procurement Policy (OFPP).

The memorandum issued jointly by the MIAO and OFPP (MIAO memo) provides specific guidance to agencies on the use of a new dedicated portal (MadeinAmerica.gov), with regards to waivers under the Buy American statute. Note: the MIAO memo refers to the existing written

“determinations” of the nonavailability exception under the Buy American statute in the FAR as

“Made in America waivers.” The MIAO memo builds on the guidance in OMB Memorandum M-

21-26, Increasing Opportunities for Domestic Sourcing and Reducing the Need for Waivers from

Made in America Laws, dated June 11, 2021. OMB Memo M-21-26, in turn, outlined initial management steps to help agencies prepare for and support a centralized strategic waiver review process as required by Executive Order (EO) 14005, Ensuring the Future Is Made in All of America by All of America’s Workers (86 FR 7475,January 28, 2021).

The MIAO memo prescribes certain requirements pertaining to posting of individual nonavailability waiver determinations under the Buy American statute for agencies. Those requirements become effective on November 16, 2021, for agencies subject to the Chief

Financial Officers Act1 and on January 1, 2022, for all other agencies. Agencies should be aware that page 3 of the MIAO memo also includes instructions for their internal protocols as they pertain to nonavailability waiver determinations.

1 31 U.S.C. 901.

https://www.whitehouse.gov/wp-content/uploads/2021/10/Guidance-Memo-Improving-the-Transparency-of-Made-in-America-Waivers.pdf https://www.whitehouse.gov/wp-content/uploads/2021/10/Guidance-Memo-Improving-the-Transparency-of-Made-in-America-Waivers.pdf https://www.madeinamerica.gov/ https://www.whitehouse.gov/wp-content/uploads/2021/06/M-21-26.pdf https://www.whitehouse.gov/wp-content/uploads/2021/06/M-21-26.pdf https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers https://www.federalregister.gov/documents/2021/01/28/2021-02038/ensuring-the-future-is-made-in-all-of-america-by-all-of-americas-workers

The posting requirements in the MIAO memo are not reflected in the FAR’s coverage at

25.103(b)(2) of individual nonavailability waiver determinations under the Buy American statute.

Further, the FAR coverage at 25.103(b)(3) will need to be conformed to the requirements prescribed in the MIAO memo. While the Federal Acquisition Regulatory Council (FAR Council) works on updating the FAR to reflect the requirements of the MIAO memo, the FAR Council is required by the MIAO memo to “provide appropriate policy direction to acquisition offices...to promote consistent application of the guidance” in the MIAO memo.