# AFARS PART 5101

- Subpart 5101.1 – Purpose, Authority, Issuance

- 5101.101 Purpose.

- 5101.105-3 Copies.

- 5101.108 FAR conventions.
- 5101.170 Peer reviews.

- Subpart 5101.2 – Administration

- 5101.290 Routing documents and mailing addresses.

- Subpart 5101.3 – Agency Acquisition Regulations

- 5101.301 Policy.
- 5101.303 Publication and codification.
- 5101.304 Agency control and compliance procedures.

- Subpart 5101.4 – Deviations From the FAR

- 5101.402 Policy.
- 5101.403 Individual deviations.

- 5101.403-90 Deviation copy and control number.

- Subpart 5101.5 – Agency and Public Participation

- 5101.501-2 Opportunity for public comments.

- Subpart 5101.6 – Career Development, Contracting Authority and Responsibilities

- 5101.601 General.

- 5101.602-1 Authority.
- 5101.602-1-90 Departmental review and approval.
- 5101.602-2 Responsibilities.
- 5101.602-2-90 Legal coordination.
- 5101.602-2-91 Contracting officer’s representative appointments.
- 5101.602-2-92 Ordering officer appointments.
- 5101.602-3 Ratification of unauthorized commitments.
- 5101.602-3-90 Ratification procedures.

- 5101.603 Selection, appointment, and termination of appointment for contracting officers.

- 5101.603-1 General.
- 5101.603-2 Selection.
- 5101.603-3 Appointment.
- 5101.603-3-90 Other individuals authorized to procure supplies and services on behalf of the Army.
- 5101.603-3-91 Restrictions.

- 5101.690 Procurement management assistance.
- 5101.691 Management controls.
- 5101.692 Head of contracting activity.
- 5101.693 Principal assistants responsible for contracting.

- Subpart 5101.7 – Determinations and Findings

- 5101.707 Signatory authority.

- Subpart 5101.90 – Nonappropriated Funds

- 5101.9001 Policy.
- 5101.9002 Contracting authority.

- Subpart 5101.91 – Authority to Award and Administer Grants and Cooperative Agreements

- 5101.9101 Authority and responsibilities.

Army Federal Acquisition Regulation Supplement

Revision 26 dated October 1, 2014

AFARS – PART 5101

FEDERAL ACQUISITION REGULATION SYSTEM

(Revised December 10, 2014)

Subpart 5101.1 – Purpose, Authority, Issuance

5101.101 Purpose.

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.

5101.105-3 Copies.

The AFARS is available electronically via the Internet at https://spcs3.kc.army.mil/asaalt/zp/SitePages/Home.aspx. The Office of the Deputy Assistant Secretary of the Army (Procurement) (ODASA(P)), Procurement Policy Directorate, SAAL-PP will issue notices of AFARS revisions to all principal assistants responsible for contracting (PARCs).

5101.108 FAR conventions.

(b) Delegation of authority. Each authority is delegable within the contracting chain of authority unless otherwise indicated by law, statute, or regulation. All delegations must reference the applicable AFARS citation. Delegations that do not include expiration dates remain effective until a higher authority supersedes or cancels them.

5101.170 Peer reviews.

(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.

(v) Preaward peer reviews for competitive procurements valued at less than $1 billion and noncompetitive procurements valued at less than $500 million.

(A) The HCA will chair an SRB and a CRB for:

(1) Competitive procurements valued at $250 million or more but less than $1 billion or

(2) Noncompetitive procurements valued at $250 million or more but less than $500 million.

(B) The HCA may delegate this authority no lower than the PARC, who may not further delegate the authority. HCAs and PARCs may waive the requirement for a formal review board. The contracting officer will include the written waiver in the contract file.

(C) The PARC will chair an SRB and a CRB for all procurements valued at $50 million or more but less than $250 million. The PARC may delegate this authority to the chief of the contracting office, who may not further delegate the authority. PARCs and chiefs of the contracting office may waive the requirement for a formal review board. The contracting officer will include the written waiver in the contract file.

(D) The PARC will establish procedures for reviewing competitive procurements valued at less than $50 million.

(vi) Postaward peer reviews of all contracts for services valued at less than $1 billion.

(A) A Headquarters, Department of the Army (HQDA) level Army Services Strategy Panel (ASSP) will be convened to conduct a postaward peer review for contracts for services valued at $250 million or more but less than $1 billion.

(1) The ASSP members (see 5137.590-5) will conduct an annual review, and contracting activities will brief ASSP members as required.

(2) The information supporting the execution reviews in 5137.590-8 will serve as the basis for the postaward reviews. ASSP members will address the postaward peer review of service contracts requirements at DFARS PGI 201.170-3 and the postaward peer review required documents and elements at DFARS PGI 201.170-4.

(B) The PARC will establish procedures for postaward peer reviews for contracts for services valued at less than $250 million.

(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.

Subpart 5101.2 – Administration

5101.290 Routing documents and mailing addresses.

(a) Contracting activities will obtain either head of the contracting activity (HCA) or, if delegated, principal assistant responsible for contracting (PARC) concurrence on all procurement document packages submitted for Headquarters, Department of the Army (HQDA) review, coordination, and/or approval. The PARC may not delegate this authority. Procurement document packages will include all reviews and coordination completed prior to submission to HQDA, including legal reviews. Unless otherwise specified in this regulation, individual and class deviations to this AFARS provision are prohibited.

(b) Frequently used addresses:

(1) For the Deputy Assistant Secretary of the Army (Procurement), use the following:

Deputy Assistant Secretary of the Army (Procurement)

Attn: SAAL-ZP

103 Army Pentagon

Room 2D528

Washington, DC 20310-0103.

The email address is usarmy.pentagon.hqda-asa-alt.list.dasa-p-primary-staff@mail.mil.

(2)(i) For the Office of the Deputy Assistant Secretary of the Army (Procurement), use the following:

Office of the Deputy Assistant Secretary of the Army (Procurement) (Insert Directorate)

Potomac Gateway North – 3/4th Floor

2800 Crystal Drive

Arlington, VA 22202.

The email addresses for the directorates appear in paragraph (2)(ii).

(ii) Specify the directorate and email address within paragraph (2)(i) as follows:

(A) Procurement Policy, usarmy.pentagon.hqda-asa-alt.list.saal-pp-staff@mail.mil.

(B) Review and Oversight, usarmy.pentagon.hqda-asa-alt.list.saal-pr@mail.mil.

(C) Procurement Support, usarmy.pentagon.hqda-asa-alt.list.saal-ps-staff@mail.mil.

(D) Expeditionary Contracting, usarmy.pentagon.hqda-asa-alt.list.saal-pk@mail.mil.

(E) Enterprise Business Systems, usarmy.pentagon.hqda-asa-alt.saal-pe-ebs@mail.mil.

(F) Senior Services Manager, usarmy.pentagon.hqda-asa-alt.list.saal-p-ssm@mail.mil.

(3) For the Office of the Assistant Secretary of the Army (Financial Management and Comptroller), use the following:

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.

(7) For the U.S. Army Contracting Command, use the following:

U.S. Army Contracting Command

ATTN: AMSCC

3334A Wells Road

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

US Army Center for Public Works (CECPW-C)

7701 Telegraph Road

Alexandria, VA 22315-3862.

Subpart 5101.3 – Agency Acquisition Regulations

5101.301 Policy.

(a)(1) The Deputy Assistant Secretary of the Army (Procurement) (DASA(P)) acts for the Assistant Secretary of the Army (Acquisition, Logistics and Technology) in developing, coordinating, issuing and maintaining the AFARS.

(b) Principal assistants responsible for contracting will coordinate with the Office of the Deputy Assistant Secretary of the Army (Procurement) (ODASA(P)) Procurement Policy Directorate, SAAL-PP, to publish proposed internal acquisition regulations or instructions, policy letters, clause books, policies, procedures, clauses, or forms in the Federal Register for public comment when required. (See FAR 1.301(b) and DFARS 201.301(b).) Contracting activities will format coordination packages in accordance with FAR 1.304, DFARS 201.304, and 5101.304 and route them in accordance with 5101.290. SAAL-PP will assist the contracting activity with preparing the proposed notice, forward it to the Federal Register, and receive public comments. At the close of the public comment period, SAAL-PP will send all public comments to the contracting activity for analysis. When the contracting activity completes its analysis, it will –

(1) Send an updated request for deviation in accordance with 5101.402; or

(2) Send an updated request for approval, which does not involve a deviation, in accordance with 5101.304(1)(i); and

(3) Include the results of the publication and analysis under the heading “IV Collaterals.”

5101.303 Publication and codification.

(a)(i) The Code of Federal Regulations codifies the AFARS under chapter 51, in Title 48.

(ii) To the extent possible, number all AFARS text, whether implemental or supplemental, as if it were implemental. Use supplemental numbering only when the text cannot be integrated intelligibly with its FAR or DFARS counterpart.

(A) The AFARS implemental numbering sequence is the same as the FAR except–

(1) Insert the number “51” before the primary citation;

(2) Insert “0” if the primary citation is to a single digit part number; and

(3) When the text exceeds one paragraph, number subdivisions by skipping a unit in the FAR 1.105-2(b)(2) prescribed numbering sequence.

(B) The AFARS supplemental numbering sequence is the same as the FAR except –

(1) Insert the number “51” before the primary citation;

(2) Insert “0” if the primary citation is to a single digit part number;

(3) Add “90” to parts, subparts, sections, or subsections;

(4) Add “S-90” to subdivisions; and

(5) When the text exceeds one paragraph, number subdivisions without skipping a unit in the FAR 1.105-2(b)(2) prescribed numbering sequence.

(D) Examples of AFARS implemental and supplemental numbering are in Tables 1-1 and 1-2 respectively:

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)

*Assumes one AFARS paragraph implementing one FAR or DFARS paragraph.

(iii) Contracting activities will contact SAAL-PP to obtain numbers for acquisition instruction or guidebook text and clauses.

(A) Chapter 51 reserves subsection numbers 90-99 for AFARS supplementary material with no FAR or DFARS counterpart.

(1) Headquarters, Department of the Army (HQDA) reserves numbers 100-199 for the Army Commands, the Army Service Component Commands, and the Direct Reporting Units with a head of the contracting activity for unique implementing material with no counterpart in higher-level regulations.

(2) HQDA reserves numbers 200 and above for Army Materiel Command and major subordinate command unique implementing material with no counterpart in higher-level regulations.

(B) Chapter 51 reserves numbers 9000 and above for supplementary clauses approved for use Army-wide, in specific commands, subordinate commands or contracting offices. (See 5152.101.)

5101.304 Agency control and compliance procedures.

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.)

Subpart 5101.4 – Deviations From the FAR

5101.402 Policy.

(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.

5101.403 Individual deviations.

(1) Principal assistants responsible for contracting, after obtaining a legal review, approve individual deviations from the FAR, DFARS, DFARS PGI, and AFARS other than those specified in DFARS 201.402(1) and DFARS 201.403(2).

5101.403-90 Deviation copy and control number.

The contracting activity will –

(a) Send one copy of each deviation to the address at 5101.290(b)(2)(ii)(A) at the time the approval authority grants the deviation; and

(b) Assign a control number to each deviation.

5101.404 Class deviations.

(b)(ii) The Deputy Assistant Secretary of the Army (Procurement) (DASA(P)) approves class deviations from the FAR, DFARS, DFARS PGI, and AFARS. This authority does not extend to deviations specified in DFARS 201.402(1) and DFARS 201.403(2).

Subpart 5101.5 – Agency and Public Participation

5101.501-2 Opportunity for public comments.

(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.

Subpart 5101.6 – Career Development, Contracting Authority and Responsibilities

5101.601 General.

(1) Army contracting activities are listed in DFARS 202.101.

5101.602-1 Authority.

5101.602-1-90 Departmental review and approval.

At any time during the procurement process, the Deputy Assistant Secretary of the Army for Procurement (DASA(P)) may direct the responsible principal assistant responsible for contracting (PARC) or source selection authority to submit a proposed contractual action to the Office of the Assistant Secretary of the Army (Acquisition, Logistics and Technology) (ASA(ALT)) for review, notation, and/or approval. The PARC or source selection authority will provide any information, documents, and briefings requested, and will not take, or permit anyone else to take, final action on the proposed contractual action during the period of the DASA(P) review. In accordance with FAR 3.104-4(a), the ASA(ALT) has authorized personnel within the Office of the DASA(P), the Office of the Army General Counsel, and other personnel designated by the DASA(P) to receive full access to contractor bid or proposal information and source selection information in connection with such review.

5101.602-2 Responsibilities.

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

5101.602-2-90 Legal coordination.

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

(a) Include legal counsel as a member of the acquisition team (see FAR 1.102-3) throughout the acquisition process;

(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.

5101.602-2-91 Contracting officer’s representative appointments.

(a) Contracting officers will designate a properly trained contracting officer’s representative (COR) prior to contract award, using the Army’s Virtual Contracting Enterprise (VCE) COR Module and consistent with DFARS 201.602-2(2). PARCs may specify additional training at their discretion within their contracting activity.

(b) Contracting officers will validate COR and ordering officer records using the VCE COR Module every 12 months to ensure contractor compliance with the terms of the contract. Contracting officers will document the review in the contract file.

(c) CORs will use the Army’s VCE COR Module to track COR nominations, appointments, terminations, and training certifications for contracts and orders. Contracting officers may exempt service contracts and orders with a value below the simplified acquisition threshold when the requirement is not complex and the contracting officer documents the contract file to explain why a COR appointment is unnecessary.

5101.602-2-92 Ordering officer appointments.

(a) Policy. The official (see 5101.603-1) appointing an ordering officer will state in the appointment letter that the ordering officer’s authority may not be delegated further (see 5153.303-2 for a sample appointment letter).

(b) Appointment and termination authority. An appointing official may appoint an ordering officer, pursuant to 5101.603-3-90(a) through (f), when the official determines that the appointment is essential for the operation of the contracting mission. The purposes for which an appointing official may appoint an ordering officer and references to limitations of their authority are –

(1) To make purchases using imprest funds (FAR 13.305);

(2) To make purchases using Standard Form 44 (FAR 13.306, DFARS 213.306);

(3) To place orders against indefinite delivery contracts awarded by contracting officers of the Military Departments for the preparation for shipment, Government storage, and intra-city or intra-area movement of personal property, provided contract terms permit (see FAR subpart 47.2);

(4) To place Service Orders for Personal Property (DD Form 1164) against Commercial Warehousing and Related Services for Household Goods contracts for military and civilian personnel subject to the criteria and procedures prescribed in Chapter 2, DoD 4500.34-R, provided that no service order will be in excess of $10,000; and

(5) To place delivery orders against indefinite delivery contracts, in addition to those in (4), that contracting officers award, as long as the contract terms permit and provided all orders placed are within monetary limitations specified in the contract.

(c) Responsibilities of appointing authority.

(1) Training and orientation. The appointing authority will orient and instruct ordering officers either personally or in writing about –

(i) The proper procedure(s) the appointing authority will authorize the ordering officer to use;

(ii) The standards of conduct for Army personnel prescribed in the Joint Ethics Regulation (DoD 5500.7-R) and the procurement integrity provisions at FAR 3.104; and

(iii) The preparation and submission of information for contract action reporting purposes.

(2) Surveillance. The appointing authority will provide technical supervision of ordering officers. At least once each year, the appointing authority will examine ordering officer purchase documents and records. Any individual designated to perform this review must be well qualified in the contracting procedures that ordering officers use.

(i) Write inspection or review findings and include specific comments as to whether the ordering officer is –

(A) Operating within the scope and limitations of authority delegated and FAR subpart 3.1;

(B) Maintaining the standards of conduct prescribed in DoD 5500.7-R;

(C) Engaging in improper practices, including but not limited to splitting purchase transactions to avoid monetary limitations or delegating authority to others; and

(D) Submitting correct and timely information for reporting purposes.

(ii) Retain copies of inspection and review findings for one year in the ordering officer’s files and the inspector’s or reviewer’s files.

(iii) If an appointing authority finds that an ordering officer is not properly performing assigned duties or promptly correcting the deficiencies noted in inspections or reviews, the appointing authority will terminate the ordering officer’s appointment.

(3) Termination.

(i) An ordering officer’s appointment will remain in effect until the ordering officer leaves his position via reassignment or termination or the appointing authority revokes the appointment. Appointing officials will not revoke an appointment retroactively.

(ii) Appointing officials will terminate appointments in writing except terminations that result when a contract expires.

(d) Procedures. Appointing officials will –

(1) Appoint ordering officers by a letter of appointment substantially in the format at 5153.303-2, but tailored to fit the circumstances of the appointment;

(2) Maintain the file of appointments and justification for the appointments;

(3) Require individuals appointed as ordering officers to acknowledge receipt of their letters of appointment and termination in writing;

(4) Distribute appointment letters to ordering officers, imprest fund cashiers, disbursing officers and other interested personnel as necessary;

(5) List the names of ordering officers appointed to place delivery orders against the contracts in the contract, or furnish copies of ordering officer appointment letters to contractors, imprest fund cashiers, disbursing officers and other interested personnel; and

(6) Furnish copies of termination letters to imprest fund cashiers, disbursing officers and other interested personnel.

5101.602-3 Ratification of unauthorized commitments.

(b) Policy.

(3) HCAs may ratify unauthorized commitments and may delegate this authority only as follows:

(A) Above $100,000: The HCA may not delegate this authority except --

(1) For the U.S. Army Corps of Engineers, the Director of Contracting, Headquarters, who may not further delegate this authority and

(2) For contracting activities within the U.S. Army Materiel Command, the Commander, U.S. Army Contracting Command, who may not further delegate this authority;

(B) Greater than $10,000 up to $100,000: to a PARC who may not further delegate this authority; and

(C) $10,000 or less: to a PARC, who may further delegate only to a chief of a contracting office who may not further delegate.

5101.602-3-90 Ratification procedures.

(a) HCAs may ratify an unauthorized commitment.

(b) The individual making the unauthorized commitment must send the following documentation, at a minimum, to the cognizant ratifying authority:

(1) A signed statement describing the circumstances, the reason normal contracting procedures were not followed, what bona fide Government requirement necessitated the unauthorized commitment, the benefit received and its value, and any other pertinent facts.

(2) All other relevant documents, including orders, invoices or other evidence of the transaction.

(c) If the commander concurs that the unauthorized commitment should be ratified, the documentation must be sent to the chief of the contracting office with an endorsement that –

(1) Verifies the accuracy and completeness of the documentation;

(2) Describes the measures taken to prevent a recurrence of unauthorized commitments, including a description of any disciplinary action to be taken; and

(3) Provides a complete purchase description and funding for the ratifying contract.

(d) The chief of the contracting office will assign the action to an individual contracting officer who will be responsible for –

(1) Reviewing the case and determining the adequacy of all facts, records, and documents and obtaining any additional material required; and

(2) Preparing a summary of facts to include a recommendation as to whether the individual responsible for approving the ratification (see 5101.602-3(b)) should ratify the transaction and reasons for the recommendation. In a recommendation not to ratify, include an explanation as to whether the contracting activity should process the transaction under FAR part 50 and DFARS part 250, Extraordinary Contractual Actions and the Safety Act or by means of the claims or disputes process set forth in FAR subpart 33.2.

(e) Upon receipt and review of the complete file, the individual responsible for approving the ratification may approve the ratification if he or she considers it to be in the best interest of the Government, or may direct other disposition.

(f) HCAs must monitor compliance with this subsection, 5101.602-3-90, and take all necessary corrective action.

5101.603 Selection, appointment, and termination of appointment for contracting officers.

5101.603-1 General.

The Secretary of the Army or one of the following individuals may select, appoint, and terminate contracting officers:

(1) The ASA(ALT).

(2) The DASA(P).

(3) The HCA.

(i) The HCA may delegate this authority to the PARC.

(ii) HCAs and appointed PARCs who have received a delegation from the HCA may delegate this authority to chiefs of contracting offices under their jurisdiction.

5101.603-2 Selection.

The HCA will establish criteria and procedures to ensure that prospective contracting officers with authority to award or administer contracts for amounts above the simplified acquisition threshold, have the knowledge and experience to effectively and efficiently support their customers and successfully fulfill their fiduciary responsibilities as required by DFARS 201.603-2 and 10 U.S.C. 1724. The HCA shall follow the policy set forth in DASA(P) memorandum, subject: Army Contracting Officer Warranting Program, December 4, 2014 with enclosure, when selecting, appointing, and terminating contracting officers. The policy is available via the Internet at: https://spcs3.kc.army.mil/asaalt/zp/doccenter/.

5101.603-3 Appointment.

(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.

5101.603-3-90 Other individuals authorized to procure supplies and services on behalf of the Army.

In addition to the ordering officers identified in 5101.602-2-92, a contracting officer or one of the appointing officials identified in 5101.603-1 may designate individuals to procure supplies or services on behalf of the Army as specified in paragraphs (a) through (f) in this subsection. Individuals in paragraphs (a) through (c) will prepare and submit information for reporting purposes to the supporting contracting office as specified by that office policy. Individuals in (d) will report to the contracting office supporting the mobilization base.

(a) Contracting officers may authorize individuals to place calls under blanket purchase agreements. (See FAR subpart 13.3, DFARS subpart 213.3, and subpart 5113.3.)

(b) Appointing officials may authorize Army aviators and masters of Army-owned or operated vessels to use Standard Form 44 (see FAR 13.306 or provisions of Army Regulation 710-2 and Department of the Army Pamphlet 710-2-2) for emergency purchases of supplies (e.g., fuels, oils, parts) and services (e.g., mechanical services, hangar services, landing and docking fees and employment of civilian guards or watchmen to safeguard Government property) under any of the following conditions:

(1) Authorized flights or voyages during which mechanical or meteorological conditions prevent obtaining required supplies and services from Government facilities.

(2) Conditions under which continuation of flight, voyage or mission would constitute a hazard to safety or endanger public property.

(3) Conditions under which procurement of supplies and services from Government facilities would interfere with approved flight plans or voyages.

(c) Appointing officials may issue the Governmentwide commercial purchase card to individuals to use in accordance with FAR 13.301.

(d) Appointing officials may authorize individuals in Reserve Components to procure supplies or services on behalf of the Army in the event of mobilization using Standard Form 44 and U.S. Army Forces Command Mobilization and Deployment System, Volume III. Reserve Component unit commanders may purchase over-the-counter type items not exceeding the micro-purchase threshold per transaction. The commander will use Standard Form 44 when a Federal Mobilization Order, requiring unit movement to a mobilization station or site, or where procurement support is not readily available from a supporting installation. This temporary authority will expire upon resumption of procurement support by the contracting office at the mobilization station or supporting installation.

(e) Appointing officials may issue U.S. Government Travel Charge Cards to individuals for use on official travel.

(f) Appointing officials may authorize individuals identified in Army Regulation 725-50 to order supplies from General Services Administration Stores Depots using the Governmentwide commercial purchase card procedures.

5101.603-3-91 Restrictions.

(a) Personnel in the 1101 job classification series will not be appointed or serve as contracting officers. This requirement is not subject to an individual or class waiver.

(b) Commanders and others having administrative supervision over contracting officers must bear in mind that actions exceeding the authority of a contracting officer are not binding on the Government. Therefore, they will not direct, or otherwise exert influence, upon contracting officers to take such actions.

5101.690 Procurement management assistance.

(a) Office of the Deputy Assistant Secretary of the Army (Procurement), Review and Oversight Directorate, manages the Procurement Management Review (PMR) Program to perform oversight of Army contracting activities in accordance with Appendix CC.

(b) Once every 36 months, all HCAs will conduct PMRs for each of their contracting offices to ensure compliance with, at a minimum, laws, policies, regulations, directives, FAR, DFARS, AFARS and AFARS Appendix CC. HCAs will furnish copies of review reports to the HQDA PMR Team Leader at the address at 5101.290(b)(2)(ii)(B) within 60 days of completing a review.

5101.691 Management controls.

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.

5101.692 Head of contracting activity.

(a) HCAs will ensure that only contracting officers selected and appointed in accordance with 5101.603 enter into contracts on behalf of the Army.

(b) HCAs will appoint a PARC. When selecting the PARC, the HCA must comply with the requirements of Department of Defense Instruction (DoDI) 5000.66 governing the selection of senior contracting officials.

(1) The HCA must assign to the PARC, or give him/her direct access to, the personnel and other essential resources necessary to perform all the functions that the HCA delegates to him/her.

(2) For contracting officers, the HCA will establish appropriate business clearance procedures to ensure compliance with 5115.406-1(1).

5101.693 Principal assistants responsible for contracting.

(1) A PARC is the senior staff official for a contracting activity responsible for the performance of all delegable contracting functions delegated by the head of the contracting activity. A PARC is an individual assigned to a position that the head of the contracting activity has established at the contracting activity level to accomplish contracting functions which FAR, DFARS, DFARS PGI, AFARS, or other directive does not require the HCA to perform personally. A PARC must be certified at Level 3 in the Contracting Career Field in accordance with the requirements of chapter 97, 10 U.S.C., to include 10 U.S.C. 1724.

(2) PARCs will –

(i) Be the senior staff official of the contracting function within the contracting activity.

(ii) Head an organizational element reporting directly to the HCA. Only the DASA(P) may approve waivers to this requirement. Requests for a waiver must contain adequate rationale, justifying the placement of the PARC in a position other than one reporting directly to the HCA.

(iii) Carry out those authorities that the HCA has delegated to them; and

(iv) Locate contracting officers in an office that minimizes the potential for undue influence and protects them from internal or external pressure to perform improper acts.

(v) Notify in writing the addressee in 5101.290(b)(2)(i) when there is a newly assigned HCA or PARC.

Subpart 5101.7 – Determinations and Findings

5101.707 Signatory authority.

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

Subpart 5101.90 – Nonappropriated Funds

5101.9001 Policy.

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.

5101.9002 Contracting authority.

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

Subpart 5101.91 – Authority to Award and Administer Grants and Cooperative Agreements

5101.9101 Authority and responsibilities.

(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 DASA(P) memorandum, subject: Army Contracting Officer Warranting Program, December 4, 2014, with enclosure.