Air Force Acquisition Circular (AFAC) 2004-0205

5 FEB 2004

FOR ADDITIONAL INFORMATION CONTACT: SAF/AQCP, 1060 Air Force Pentagon, Washington, DC 20330-1060, (703) 588-7058.

Summary of Changes

This AFAC (except for AFFARS Part 5342, Bankruptcy) incorporates language from existing Air Force guides as Mandatory Procedures (MP) or Informational Guidance (IG) via addition of heading and pointer language into the text of the AFFARS. The body of the Mandatory Procedures (MP) or Informational Guidance (IG) will be an imbedded hyperlink. This implementation strategy is part of the AFFARS prototype to locate all policy, guidance, and procedures in one place while maintaining a streamlined AFFARS. This AFAC also includes clerical edits.

Item Subpart - Reason for Change

I Incorporate language from mandatory guides as mandatory procedures:

5317.191 - Incorporate mandatory procedures, MP5305.303.

5333.104-90 - Incorporate mandatory procedures, MP5333.104-90.

II Incorporate language from existing guides as mandatory procedures:

5319.505 and 5319.810 - Incorporate mandatory procedures, MP5319.

5325.103 - Incorporate mandatory procedures, MP5325.103.

5325.7002-2 - Incorporate mandatory procedures, and MP5325.7002-2.

III Incorporate language from existing guides as informational guidance:

5306.304-93 - Incorporate informational guidance, IG5306.304-93.

5317.7402 - Incorporate informational guidance, IG5317.7402.

IV 5342.902 - Incorporate new mandatory procedures, MP5342.902.

V 5308.404(b)(2) and 5308.404(b)(4) - Clarify competition requirements for orders over $100,000 and Blanket Purchase Agreements (BPAs) placed against Federal Supply Schedules (FSSs).

VI 5333.103-90 and 5333.190 - Clarify AF procedures and ensure consistency with the FAR.

Note: “*****” below indicates that text is omitted.

AFAC Changes

I Incorporate language from mandatory guides as mandatory procedures:

Supplementary information about the change: Incorporates language from existing

mandatory Air Force Guides as mandatory procedures.

5305.303 Announcement of contract awards.

(a) Public Announcement. Information on awards shall not be released and awards shall not be made until after the agency announces the award.

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5306.303 Justifications. (No Text)

5306.303-1 Requirements.

(d) The contracting officer shall forward a copy of the approved Justification and Approval (J&A) to SAF/AQCK. SAF/AQCK will forward the J&A to Office of the United States Trade Representative in order to comply with the requirement at FAR 6.303-1(d).

5306.303-2 Content.

See the Mandatory Procedures at MP5306.3 for J&A content.

5306.304 Approval of the justification.

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5315.407-90 Contract Audit Follow-Up (CAFU)

Follow the Mandatory Procedures at MP5315.407-90 for conducting contract audit follow-up (CAFU).

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5317.191 Congressional notification.

Contracting officers shall follow the Mandatory Procedures at MP5305.303 to prepare reports of intent to award a multi-year contract. This Congressional notification does not fulfill the requirement to announce contract awards in accordance with FAR Subpart 5.3, as supplemented.

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5333.104-90 Protests to the GAO.

Follow the Mandatory Procedures at MP5333.104-90, Protests to the GAO.

(a) General. The Commercial Litigation Division of the Air Force Legal Services Agency (AFLSA/JACN) represents the Air Force in GAO protests when a protester is represented by an attorney or at the request of SAF/AQCX. SAF/AQCX is the Air Force point of contact with the GAO in all other GAO protests.
(b) Mandatory stay of award or performance. A request to override a stay of award or performance must be signed by a general officer/member of the senior executive service or, if not available, by the installation commander or deputy.

II Incorporate language from existing guides as mandatory procedures:

Supplementary information about the change: Incorporates language from existing

Air Force Guides as mandatory procedures.

(a) 5315.407-91 - Incorporates language from Air Force Guide, Formula Pricing Agreements

(FPAs). Adding Mandatory Procedures will standardize content and improve quality of FPAs

established by Air Force buying activities.

(b) 5319.505 and 5319.810 - Incorporates language from Air Force Guide, Small Business

Program. Adding Mandatory Procedures will standardize the appeal packages, improve their

quality, and keep SAF/SB informed of SBA Appeals to the agency head.

(c) 5325.103, 5325.870, 5325.1001, 5325.7002-2 - Incorporates language from Air Force

Guide, Foreign Acquisition. Adding Mandatory Procedures will standardize the content and

quality of D&Fs for Buy American and Berry Amendment and ensure we don’t duplicate

research contracts in Canada.

5315.407-91 Formula Pricing Agreements

Formula Pricing Agreements (FPAs), sometimes referred to as spare parts pricing agreements, may be used by contracting officers to establish the pricing methodology for more than one future contract action. They may also be used to establish a pricing methodology for corporate contracts and strategic sourcing agreements. While use of FPAs is optional, contracting officers shall follow the Mandatory Procedures at MP5315.407-91 to establish an FPA.

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SUBPART 5319.5 — SET-ASIDES FOR SMALL BUSINESS

5319.505 Small Business Administration (SBA) Appeals to the Agency Head - Small Business Set-Asides.

When notified by the SBA that it has filed an appeal with the Agency Head follow the Mandatory Procedures at MP5319 to prepare and submit an appeal file.

SUBPART 5319.8 CONTRACTING WITH THE SMALL BUSINESS ADMINISTRATION (THE 8(A) PROGRAM)

5319.810 Small Business Administration (SBA) Appeals to the Agency Head - The 8(a) Program.

When notified by the SBA that it has filed an appeal with the Agency Head follow the Mandatory Procedures at MP5319 to prepare and submit an appeal file.

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SUBPART 5325.1 — BUY AMERICAN ACT--SUPPLIES

5325.103 Exceptions.

Follow the Mandatory Procedures at MP5325.103 when a determination of nonavailability is required by FAR 25.103 and DFARS 225.103.

SUBPART 5325.8 — OTHER INTERNATIONAL AGREEMENTS AND COORDINATION

5325.870 Contracting with Canadian contractors.

Follow the Mandatory Procedures at MP5325.870 when contemplating a research contract with educational institutions of Canada.

SUBPART 5325.10 — ADDITIONAL FOREIGN ACQUISITION REGULATIONS

5325.1001 Waiver of Right to Examination of Records.

Follow the Mandatory Procedures at MP5325.1001 when requesting use of FAR 52.215-2 with its Alternate III.

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5325.7002-2 Exceptions.

(b) If the contracting officer determines, through market research, that an article or suitable substitute is not available from a domestic source, the contracting officer shall contact SAF/AQCK. SAF/AQCK will confer with the Department of Commerce (DOC) and request a list of possible domestic sources. Upon notification from SAF/AQCK that domestic source(s) have not been identified by DOC, the contracting officer shall submit a determination and finding following the format in the Mandatory Procedures at MP5325.7002-2, including the market research report, to SAF/AQCK. The authority of the Secretary of the Air Force to make determinations in accordance with DFARS 225.7002-2 is not delegable.

III Incorporate language from existing guides as informational guidance:

5317.7402 - Incorporate informational guidance, IG5317.7402.

Supplementary information about the change: Incorporates language from existing

Air Force Guides as informational guidance.

5306.304-93 J&A Scope.

Informational Guidance on determining J&A scope is available at IG5306.304-93.

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5315.404-3 Subcontract Pricing Considerations

See Informational Guidance at IG5315.404-3 for additional subcontract pricing considerations.

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5317.7402 Exceptions.

See Informational Guidance at IG5317.7402 when contracting for long-lead items initiated with advance procurement funds. Follow DFARS Subpart 217.74 when contracting for long-lead items procured with other than advance procurement funds.

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SUBPART 5329.2 — FEDERAL EXCISE TAXES

5329.202 General Exemptions

See the Informational Guidance at IG5329.202 for preparing exemption certificates for Federal excise taxes.

SUBPART 5329.3 — STATE AND LOCAL TAXES

5329.302 Application of State and Local Taxes to the Government

See the Informational Guidance at IG5329.302 for preparing an SF1094, U.S. Tax Exemption Certificate, when unable to exclude state or local taxes from the contract price.

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SUBPART 5336.90 CONSTRUCTION PROGRAM ADMINISTRATION

5336.9001 Forms.

Contracting Officers are encouraged to use existing contractor-developed forms to the maximum extent practicable. In those instances where commercial forms are not available, see Informational Guidance at IG5336.90, Construction Program Administration, for forms that may be used to administer construction programs.

SUBPART 5336.91 — SIMPLIFIED ACQUISITION OF BASE ENGINEER REQUIREMENTS (SABER)

5336.9101 Simplified Acquisition of Base Engineer Requirements (SABER).

See the Informational Guidance at IG5336.91 for assistance in the award and contract administration of Simplified Acquisition of Base Engineer Requirements (SABER) contracts.

IV 5342.902 - Incorporate new mandatory procedures, MP5342.902.

Supplementary information about the change: Adds mandatory procedures to clarify to Contracting Officers that there are immediate steps that they shall take when notified of a bankruptcy.

SUBPART 5342.9 — BANKRUPTCY

5342.902 Bankruptcy Procedures.

Follow the Mandatory Procedures at MP5342.902 when notified of bankruptcy proceedings that affect the Air Force.

V 5308.404(b)(2) and 5308.404(b)(4) - Clarify competition requirements for orders over $100,000 and Blanket Purchase Agreements (BPAs) placed against Federal Supply Schedules (FSSs).

Supplementary information about the change: Section 803 of the National Defense Authorization Act for Fiscal Year 2002 mandated that orders for services against a FSS exceeding $100,000 shall be placed on a competitive basis. This language will make it clear to Contracting Officer’s that they must compete requirements over $100,000 when placing orders and/or BPAs against Federal Supply Schedules.

5308.404 Using Schedules

(b) Ordering procedures for optional use schedules --

(4) Blanket purchase agreements (BPAs).

VI 5333.103-90 and 5333.190 - Clarify AF procedures and ensure consistency with the

FAR.

Supplementary information about the change: Clarifies AF process for agency protests.

5333.103-90 Protests to the agency.

(a) The contracting officer shall prepare the protest file following an agency protest (including a protest of a non-appropriated funds procurement) regardless of the level at which the protest is filed. The contracting officer shall request guidance from SAF/AQCX for any protest likely to generate significant Congressional interest.

(b) An agency protest is usually filed with the contracting officer. Offerors are encouraged to file at the lowest level to resolve the issues concerned. In all cases, a copy of an agency protest must be provided to the contracting officer regardless of the level at which the protest is filed. When an agency protest is denied, an offeror may request an independent review at a level above the contracting officer.

(c) The decision to deny a protest shall be made at a level no lower than that at which the protest was filed. Protests may be sustained at any level in the review process, with the concurrence of the cognizant legal office.

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5333.190 Protests to the United States Court of Federal Claims (USCFC).

(a) The Commercial Litigation Division of the Air Force Legal Services Agency (AFLSA/JACN) serves as the Air Force agency counsel to the Department of Justice (DoJ) for protests at the USCFC and assists the assigned DoJ attorney in defending Air Force interests.

(b) The contracting officer shall inform AFLSA/JACN of any notice of protest at the USCFC and provide support as requested by AFLSA/JACN.