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AFARS PART 5101



Army Federal Acquisition Regulation Supplement

Revision 26 dated October 1, 2014

(Revised May 4, 2017)

The Army Federal Acquisition Regulation Supplement (AFARS) implements and supplements the Federal Acquisition Regulation (FAR), the Defense FAR Supplement (DFARS) and the DFARS Procedures, Guidance and Information (PGI) to establish uniform policies for Army acquisition. It does not restrict the exercise of good business judgment or stifle innovation.

(a) DoD peer reviews. The PARC will concur, in writing, on all solicitation and contract packages submitted for each phase of any DoD peer review. For the first phase only, the PARC will send a copy of the written concurrence to the DASA(P) (see 5101.290) and provide a copy to the head of the contracting activity (HCA).

(b) Component peer reviews.

(i) Army peer reviews. A Solicitation Review Board (SRB) and a Contract Review Board (CRB) will approve all procurements with an estimated value of $50 million or more including the award of task and delivery orders. A CRB is required for contract modifications that increase total evaluated price or otherwise increase scope. A CRB is not required for modifications that exercise an option, add incremental funding, or make administrative changes. The SRB and CRB will be independent, multi-functional teams comprised of senior level experts, which will, at a minimum, include representatives from the contracting activity, small business office, office of counsel, requirements community, and in the case of noncompetitive actions, the advocate for competition. The same members should participate in both the SRB and the CRB in order to ensure consistency.

(ii) Objective of Army peer reviews. The SRB/CRB will review and assess the presolicitation, solicitation and contract award documents for consistency, sufficiency, compliance and application of sound business practices. The SRB/CRB will verify that the procurement represents an overall good value to the Government and appropriate obligation of taxpayer funds.

(iii) Resolution of comments. The PARC will establish procedures for resolving all SRB and CRB comments.

(iv) Annual peer review statistics. The ODASA(P) Procurement Policy Directorate, SAAL-PP, will send out instructions for submitting annual peer review statistics no later than October 1 of each calendar year. Contracting activities will provide their statistics to SAAL-PP no later than November 1 of each calendar year. Peer review statistics include annual data on the number of SRB/CRB reviews conducted and waived, identification of any systemic issues or trends, best practices, lessons learned, overall effectiveness of the process, and other data as determined necessary.

(S-90) If the DASA(P) identifies a procurement as special interest, the ODASA(P) will convene an HQDA review of the procurements. The DASA(P) will serve as the chairperson. Other Army peer reviews identified in 5101.170(b) are not required when the ODASA(P) conducts a special interest peer review for a procurement.

Office of the Assistant Secretary of the Army (Financial Management and Comptroller)

109 Army Pentagon

Washington, DC 20310-0109.

(4) For the Office, Chief of Legislative Liaison, use the following:

The Office, Chief of Legislative Liaison (OCLL)

Attn: SALL-SPA

1600 Army Pentagon

Washington, DC 20310-1600.

(5) For the Chief, Procurement Fraud Branch, U.S. Army Legal Services Agency, use the following:

Chief, Procurement Fraud Branch

Contract and Fiscal Law Division

U.S. Army Legal Services Agency

9275 Gunston Road, BLDG 1450

Ft Belvoir, VA 22060-5546.

(6) For the Office of the Command Counsel, Headquarters, U.S. Army Materiel Command, use the following:

Office of the Command Counsel

Headquarters U.S. Army Materiel Command

Attn: AMCCC

4400 Martin Road

Redstone Arsenal, AL 35898-5340.

Redstone Arsenal, AL 35898-5000.

(8) For the Directorate of Contracting, U.S. Army Corps of Engineers, use the following:

U.S. Army Corps of Engineers

Directorate of Contracting

CECT-ZA

441 G Street, N.W.

Washington, DC 20314-1000.

(9) For the Chief, Army Power Procurement Office, U.S. Army Center for Public Works, use the following:

Chief, Army Power Procurement Office

TABLE 1-1, AFARS IMPLEMENTAL NUMBERING

 

FAR

AFARS

1 paragraph implementing FAR 19.501

19.501

5119.501

3 paragraphs implementing FAR 19.501

19.501

5119.501

(1)

(2)

(3)

1 paragraph implementing FAR 19.501(a)

19.501(a)

5119.501(a)

3 paragraphs implementing FAR 19.501(a)

19.501(a)

5119.501

(a)(i)

(ii)

(iii)

3 paragraphs implementing FAR 19.501(a)(1)

19.501(a)(1)

5119.501

(a)

(1)(A)

(B)

(C)

Further subdivisions follow the prescribed sequence

19.501(a)(1)(i)(A)(1)(i)

5119.501(1)(i)(A)(1)(i)

TABLE 1-2, AFARS IMPLEMENTAL AND SUPPLEMENTAL NUMBERING

FAR

Is Implemented As*

Is Supplemented As

19

5119

5119.90

19.5

5119.5

5119.590

19.501

5119.501

5119.501-90

19.501-1

5119.501-1

5119.501-1-90

19.501-1(a)

5119.501-1(a)

5119.501-1(a)(S-90)

19.501-1(a)(1)

5119.501-1(a)(1)

5119.501-1(a)(1)(S-90)

HQDA and Army contracting activities will not supplement the FAR, DFARS, or internal acquisition regulations or instructions except as provided in this section.

(1)(i) Contracting activities must obtain prior DASA(P) approval for policy letters, clause books, policies, procedures, clauses, or forms that require Under Secretary of Defense (Acquisition, Technology, and Logistics) approval. (See DFARS 201.304(1)(i) and Appendix FF, Department of the Army Plan for Control of Nonstandard Clauses, for approval of nonstandard clauses or provisions.)

(2) The contracting officer will prepare all deviation requests in accordance with DFARS 201.402(2) and follow the procedures at 5101.301(b) to publish the deviation in the Federal Register.

(b) Army contracting personnel may submit agency, organizational, or individual comments on FAR and DFARS cases published in the Federal Register (see FAR 1.501-2(b)) in one of two ways:

(i) Official Army comments. Army contracting personnel may submit comments through their chain of command to the Army Policy Member to the Defense Acquisition Regulations (DAR) Council in the Office of the Deputy Assistant Secretary of the Army (Procurement) Procurement Policy Directorate, SAAL-PP. The DAR Council member will determine if the comments are consistent with the Deputy Assistant Secretary of the Army (Procurement)’s official Army position and if they are, forward them to the Director of the DAR Council for adjudication with public comments. If the comments are inconsistent with the Deputy Assistant Secretary of the Army (Procurement)’s official Army position, the DAR Council member will contact the commenter to address his or her comment within the Army.

(ii) Comments as a private citizen. Army contracting personnel may submit comments as a private citizen by following the instructions in the Federal Register notice. Private citizens must clearly state that their comments represent a personal opinion rather than an official position. They may refer to the extent of their relevant experience within the body of the comments. Private citizens will not submit comments using Army letterhead or reference the Army in a signature block; however, they may use Army email and fax, in accordance with Section 2-301(a)(2) of the Department of Defense Joint Ethics Regulation, DoD 5500.7-R.

(a) Refer to 5132.7 for instructions with regard to ensuring funds are available.

Contracting officers will obtain a legal review and consider counsel’s advice as follows:

(b) Obtain a legal review for proposed contracting actions in accordance with locally established procedures and as otherwise required by law, regulation, or policy. It is not practicable to specify, in the AFARS, an inclusive list of actions requiring legal review at each contracting activity. Instead, counsel will routinely review a full range of acquisition-related actions that have potential legal significance. PARCs will work with local chief counsels, or equivalent official, to develop specific legal review protocols that are consistent with this provision.

(c) Obtain legal reviews on proposed actions to determine if the action is legally sufficient based on statute, regulation, and policy, and request details and a recommended course of action to resolve any insufficiency. Contracting officers will address and resolve counsel’s objections at the lowest possible level. Contracting officers and counsel will elevate unresolved objections within the acquisition and legal channels, as appropriate, and in exceptional cases, to the head of the contracting activity (HCA).

(d) The contracting officer, under PARC direction, retains sole authority to determine matters that relate to the exercise of business judgment.

(a) Appointing officials will maintain a file for each contracting officer, which documents certificates of appointments, appointment termination, and maintain justification for each. The file will include documentation of qualifications and the continuation of professional proficiency. The appointing official will update the files upon any change in the contracting officer’s authority, and will review the files no less than biennially to ensure compliance with statutes and regulations.

Management controls within each contracting organization are an element of day-to-day operations. Managers at all levels should refer to Appendix BB, Management Control Evaluation Checklist, to evaluate their organization’s compliance with key management controls and to identify and correct weaknesses. The list of questions in Appendix BB is not all-inclusive nor are managers required to respond to all of them. Managers should tailor the list to include areas specific to each contracting office, and should include the Areas of Special Interest, which the DASA(P) issues each fiscal year.

The head of the contracting activity or the principal assistant responsible for contracting and the contracting officer will sign each Secretarial determination request.

DoD policy for contract actions using nonappropriated funds is in DoD Directive 4105.67. See Army Regulation (AR) 215-1 and AR 215-4 for implementing policies and procedures for Army nonappropriated fund acquisitions.

Principal assistants responsible for contracting may designate appropriated fund contracting officers as nonappropriated fund contracting officers. (See AR 215-4.)

(a) Procedures governing grants and cooperative agreements are set forth in the DoD Grants and Cooperative Agreement Regulations (DoDGAR), currently codified at Chapter I, Subchapter C of Title 32, Code of Federal Regulations (CFR) and Chapter XI of Title 2, CFR (see Department of Defense Directive Number 3210.06). In the absence of an Army supplement to the DoDGAR this AFARS subpart provides a record of the Army’s implementation of 32 CFR 21.425 – 21.435.

(b) Heads of contracting activities (HCAs) with grant and cooperative agreement responsibilities are authorized to make and administer grant and cooperative agreement awards in accordance with specific delegations of authority from the Assistant Secretary of the Army (Acquisition, Logistics and Technology) and as otherwise authorized in 32 CFR 21.420(c).

(c) HCAs also are authorized to appoint grants officers and agreements officers and to broadly manage their contracting activity’s functions related to assistance instruments.

(d) HCAs are responsible for grant and cooperative agreement awards made by their contracting activity and shall supervise and establish and maintain internal policies and procedures for that activity’s awards. HCAs also shall establish and maintain a formal process for appointing grants and agreements officers and for terminating their appointment. See 5101.603-2 and the Contracting Officer Warranting Program Version 4. The policy is available via the Internet at: PARC Policy Alert 2016 101 FLN Policy and KO Warranting Program Version 4 SFrank.msg

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