AFARS -- Part 5101
Federal Acquisition Regulation System
Subpart 5101.1 -- Purpose, Authority, Issuance
(a) The Army Federal Acquisition Regulation Supplement (AFARS) implements and supplements the Federal Acquisition Regulation (FAR) and the Department of Defense FAR Supplement (DFARS) to establish uniform policies for Army acquisition. It does not restrict the exercise of good business judgment or stifle innovation. .
The AFARS is available electronically via the Internet at http://acqnet.saalt.army.mil.
Subpart 5101.2 -- Administration
5101.290 -- Routing of Documents and Mailing Addresses.
(a) Unless otherwise prescribed in FAR, DFARS, or AFARS, documents relating to contracting matters that require higher authority involvement must be sent through contracting channels and be signed by the Head of the Contracting Activity (HCA) or the HCA's Principal Assistant Responsible for Contracting (PARC).
(b) Addresses which are used frequently follow:
(1) Deputy Assistant Secretary of the Army for Procurement (SAAL-ZP), 103 Army Pentagon, Washington DC 20310-0103.
(2) Headquarters, Department of the Army, Attn: SAAL-PC, Skyline 6, Suite 302, 5109 Leesburg Pike, Falls Church, VA 22041-3201.
(3) Headquarters, Department of the Army, Attn: SAAL-PP, Skyline 6, Suite 302, 5109 Leesburg Pike, Falls Church, VA 22041-3201.
(4) Headquarters, Department of the Army, Attn: SAAL-PS, Skyline 6, Suite 302, 5109 Leesburg Pike, Falls Church, VA 22041-3201.
(5) Headquarters, Department of the Army, Attn: SAAL-PA, Skyline 6, Suite 302, 5109 Leesburg Pike, Falls Church, VA 22041-3201.
(6) Office of the Assistant Secretary of the Army (Financial Management), 109 Army Pentagon, Attn: SAFM-CL, Washington, DC 20310-0109.
(8) Office of the Chief of Legislative Liaison (OCLL), Attn: SALL-SPA, 1600 Army Pentagon, Washington, DC 20310-1600.
(9) Chief, Procurement Fraud Division (DAJA-PF), Office of the Judge Advocate General, Department of the Army, Suite 400, 901 N. Stuart Street, Arlington, VA 22203-1837.
(10) Office of the Command Counsel, Headquarters U.S. Army Materiel Command, Attn: AMCCC-P, 5001 Eisenhower Avenue, Alexandria, VA 22333-0001.
(11) U.S. Army Corps of Engineers, Attn: CEPR-ZA, 20 Massachusetts Avenue NW, Washington, DC 20314-1000.
(12) 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
(a) The AFARS is issued under the authority of FAR 1.301 and DFARS 201.304 by the Assistant Secretary of the Army (Acquisition. Logistics and Technology) (ASA(ALT)).
(b) The Army has been assigned Chapter 51 of Title 48 of the Code of Federal Regulations (CFR). Supplements to the FAR issued by the Army must insert the number "51" before the primary citation. If the primary citation is to a single digit part number, a zero is also inserted.
(c) When a proposed policy, procedure, clause, or form must be published in the Federal Register, the proposed notice should be formatted in accordance with DFARS 201.402(2) and 201.201-1(d)(i) and sent with the request for approval (5101.304(a)(2)) or the request for deviation (5101.402).
(i) The Office of the Deputy Assistant Secretary of the Army for Procurement (ODASA(P)) is the point of contact to coordinate the proposed notice, forward it to the Federal Register, answer questions, and receive public comments. At the close of the public comment period, the ODASA(P) will send all comments received to the originator of the notice for analysis.
(ii) When the analysis is completed, the originator must --
(A) Send an updated request for deviation in accordance with 5101.402; or
(B) Send an updated request for approval (which does not involve a deviation) in accordance with 5101.304(a)(2); and
(C) Include the results of publication and analysis under the heading "IV. Collaterals."
5101.303 -- Publication and Codification.
(a)
(iii) Subsection numbers 90-99 are reserved for AFARS supplementary material with no FAR or DFARS counterpart. Numbers 9000 and above are reserved for supplementary clauses. HCAs implementing the FAR, DFARS, or AFARS must follow the rules of the FAR System except that numbers 100-199 are reserved for major command (MACOM) unique implementing material with no counterpart in higher-level regulations. Numbers 200 and above are reserved for Army Materiel Command (AMC) major subordinate command unique implementing material with no counterpart in higher-level regulations. For numbering provisions and clauses, see 5152.101.
5101.304 -- Agency Control and Compliance Procedures.
(1) There can be no supplementation of the FAR except as provided herein. HCAs must ensure that all contracting activity acquisition instructions and regulations are in compliance with FAR, DFARS, and this AFARS. HCAs may issue acquisition instructions as necessary to implement FAR, DFARS, and AFARS without prior HQDA approval with the exceptions of --
(A) Those which require the approval of the Under Secretary of Defense (Acquisition, Technology and Logistics) or Director, Defense Procurement (per DFARS 201.304);
(B) Any implementation of FAR Part 22, DFARS 222, or AFARS Part 5122 unless the AFARS specifically provides otherwise; and
(C) Any implementation of FAR Part 32, DFARS Part 232, or AFARS Part 5132.
(2) Format requests for approval in accordance with DFARS 201.201-1(d)(i), I through IV, adapting the language as necessary to apply to implementing coverage instead of revisions. See 5101.301(b) also.
(3) See 5101.402 for procedures for processing a request for class deviation.
(4)
(A) Requests for approval of nonstandard clauses or provisions which are deviations, one time, and recurring, must be processed in accordance with 5101.4. See 5101.301(c) for guidance concerning clauses that must be published in the Federal Register.
(5) Notices of all AFARS revisions will be issued electronically to all PARCs. The official copy of the AFARS will be kept electronically on the Army Acquisition website, sponsored by the Deputy Assistant Secretary of the Army (Procurement) at http://acqnet.saalt.army.mil.
Subpart 5101.4 -- Deviations From the FAR
(1)
(ii) The ASA(AL&T) approves class deviations to the FAR and DFARS. This authority does not extend to --
(A) Deviations with a significant cost or administrative impact on contractors or offerors, or have a significant effect beyond the internal Army operating procedures;
(B) Deviations identified in DFARS 201.402(1)(i); or
(C) Requirements imposed by statute or directives of other agencies (e.g., the Small Business Administration and the Department of Labor).
(3)
(A) All FAR, DFARS, and AFARS deviation requests should be prepared in accordance with DFARS 201.402(2). Follow the procedures at 5101.301(c) when the deviation must be published in the Federal Register,
5101.403 -- Individual Deviations.
(1) Only PARCs may approve individual deviations to FAR, DFARS, and AFARS. This authority does not extend to areas set forth in DFARS 201.402; to any provisions which limit approval authority to a level higher than a HCA; and to any provisions based upon statute or Executive Order unless such authority provides for waiver.
(2) Send one copy of each deviation to the addressee at 5101.290(b)(4) at the time the deviation is granted.
(3) The contracting activity shall assign a control number to each deviation authorized.
Subpart 5101.6 -- Career Development, Contracting Authority and Responsibilities
(1) Army contracting activities are listed in DFARS 202.101.
(2) HCAs and other contracting officials may re-delegate their contracting authority when consistent with higher-level regulations and directives.
(3) Secretarial delegations of authority and redelegations. Delegations or re-delegation must reference the applicable AFARS citation. Expiration dates may be included; otherwise, the delegations and re-delegations stay effective until superseded or canceled.
(4) HCA responsibilities.
(i) Each HCA must ensure all purchases subject to provisions of FAR, DFARS, and AFARS are made by contracting officers selected and appointed in accordance with 5101.603.)
(ii) Each HCA must appoint a Principal Assistant Responsible for Contracting (PARC). When selecting the PARC, the HCA must comply with the requirements of DODI 5000.58 governing selection of senior contracting officials.
(A) PARCs will be the senior staff official of the contracting function within the contracting activity.
(B) The PARC shall head an organizational element reporting directly to the HCA. Waivers to this requirement can only be approved by the DASA(P). 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.
(C) The PARC must be assigned, or have direct access to, the personnel and other essential resources necessary to perform all the functions assigned or delegated by the HCA.
(D) For contracting officers, the HCA shall establish appropriate business clearance procedures to ensure compliance with AFARS Subpart 5115.406.
(iii) The following HCAs must perform the functions of an HCA for the additional offices designated:
(A) Assistant Deputy Chief of Staff for Research, Development and Acquisition (Acquisition, Contracting and Program Management), Headquarters, U.S. Army Materiel Command, for the U.S. Military Academy, U.S. Army Soldier and Biological Chemical Command, and Office of the Program Manager, Saudi Arabia National Guard Modernization Program (PM SANG).
(B) Commander, U.S. Army Training and Doctrine Command for The Judge Advocate General's School.
(C) Commander, U.S. Army Military District of Washington for the National Defense University.
(D) Commander, U.S. Army Communications-Electronics Command for the 5TH Signal Command -- Mannheim, FRG; BASECOM Army Signal Command -- Ft. Huachuca, AZ.
(5) PARC responsibilities. PARCs must --
(i) Carry out those delegable authorities of the HCA except when the HCA elects to exercise selected authorities; and
(ii) Head and oversee organizational element reporting directly to the HCA unless an exception has been approved by HQDA.
(iii) Notify Headquarters, Department of the Army, ATTN: SAAL-PA, Skyline 6, Suite 302, 5109 Leesburg Pike, Falls Church, VA 22041-3201 when there is a newly assigned HCA or PARC.
5101.602 -- Contracting Officers.
(b) The office of the contracting officer must be organizationally situated to minimize any potential for undue influence and protect contracting officers from intra-organizational pressure to perform improper acts.
(c) Personnel in the 1101 job classification series are prohibited from being appointed or serving as Contracting Officers. This requirement is not waivable on either an individual or class basis.
(d) 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 shall not direct, or otherwise exert influence, upon a contracting officer(s) to take such actions.
5101.602-1-90 -- Departmental Review and Secretarial Approval.
(a) Awards may require review and notation at the HQDA level. Preaward or postaward review or both will be directed by the Office of the ASA(ALT) on an individual basis.
(b) Whenever the Office of the ASA (ALT) or the Office of the USD (AL&T) are to be briefed on an award, send all documents at least five working days prior to scheduled briefings.
(d) When the Office of the ASA (ALT) directs an abbreviated Secretarial review and notation for certain aspects of an acquisition which are of special interest, that office will identify the areas of special interest and the information required and advise whether or not a briefing is required.
5101.602-2 -- Responsibilities.
Contracting Officers must validate Contracting Officer Records and Ordering Officer Records every 12 months to ensure compliance with the terms of the contract. A written record of the review is to be placed in the contract file.
(a)
(i) Except as authorized in FAR Subparts 17.1 and 32.7 and in (ii) and (iii), before issuing a solicitation, the contracting officer must have a written statement (or equivalent) indicating that sufficient funds are available.
(ii) Solicitations may be issued for high priority requirements and RDT&E incrementally funded contracts before ensuring availability of funds when there is a high probability that the requirement will not be canceled. For foreign military sales cases, solicitations may be issued after the submission of an offer, but before assurance of funds availability when the initiating and approving authorities determine that the offer appears certain to be accepted.
(A) The contracting officer shall not issue a solicitation under the circumstances in (a)(ii) unless the comptroller or designee has signed the following statement on the purchase request:
"This requirement is included or provided for in the financial plan for FY __. The accounting classification will be __. This statement is not a commitment of funds."
(B) The contracting officer shall include the following statement in all solicitations issued pursuant to this authority when the clause at FAR 52.232-18, Availability of Funds, is not used.
"Funds are not presently available for this acquisition. No contract award will be made until appropriated funds are made available."
(C) No contract shall be awarded nor shall a prospective contractor be notified of a pending award until funds have been certified to be available by the operating official designated by local regulations or by a "delegation of authority" letter as the official authorized to certify to funds availability.
(D) No solicitation shall be issued for a contract for research and development which is to be incrementally funded over successive years unless planned funds (Future Years Defense Plan (FYDP)) are sufficient to accomplish it. An exception may be approved by the HCA, provided the approval identifies steps to be taken to revise the approved FYDP to include adequate resources.
(iii) Industrial-funded public activities need not comply with (i) and (ii) when issuing solicitations to support offers they will send under the Defense Depot Maintenance Competition Program (P L 102-396), the Partnership Program (10 U.S.C.2208(j)) or competition under the Arsenal Act (10 U.S.C.4532(a)). See 5117.9101.
(c) Legal Participation. Contracting Officers' use of legal specialists shall be guided by the following:
(i) Legal counsel shall participate as a member of the contracting officer's team throughout the acquisition process.
(ii) Legal counsel shall review proposed contracting actions in accordance with locally established procedures and as otherwise required by law, regulation, or policy. While it is not practicable to specify, in the AFARS, an inclusive list of actions requiring legal review at each contracting activity, the expectation is that counsel shall routinely review a full range of acquisition-related actions that have potential legal significance. PARCs and chief counsels shall develop specific legal review protocols that are consistent with this provision.
(iii) Legal counsel shall advise whether a proposed action is legally sufficient with details and a recommended course of action to resolve any insufficiency. Contracting officers shall address and resolve counsel's objections at the lowest possible level. Unresolved objections shall be jointly elevated within the acquisition and legal channels, and, in exceptional cases, brought to the attention of the HCA.
(iv) Legal sufficiency shall relate to areas of statute, regulation, and policy. The Contracting Officer retains sole authority to determine matters that relate to the exercise of business judgment.
5101.602-3 -- Ratification of Unauthorized Commitments.
(b) Policy.
(3) HCAs may ratify unauthorized commitments and delegate this authority no lower than to the chiefs of contracting offices. -
(A) $100,000 or less to a PARC; and
(B) $10,000 or less to chiefs of contracting offices.
(c)
(7) See 5101.602-3-90.
5101.602-3-90 -- Ratification Procedures.
(a) The individual making the unauthorized commitment must send relevant documentation to the individual's commander or senior staff officer designated for this purpose to include --
(1) A signed statement describing the circumstances, the reason normal contracting procedures were not followed, what bona fide Government requirement necessitated the commitment, the benefit received, and its value and any other pertinent facts; and
(2) All other relevant documents, including orders, invoices or other evidence of the transaction.
(b) If the commander or senior staff officer designated concurs that the 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.
(c) 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 or not the transaction should be ratified and reasons for the recommendation. A recommendation not to ratify must include a recommendation as to whether or not the matter should be processed under FAR Part 50 and DFARS Part 250 (Pub. L. 85-804) as a GAO claim or in some other appropriate way.
(d) Upon receipt and review of the complete file, the individual responsible for approving the ratification may approve the ratification if it is considered to be in the best interest of the Government, or may direct other disposition.
(e) HCAs must monitor compliance with 5101.602-3-90 and take all necessary corrective action.
5101.603 -- Selection, Appointment, and Termination of Appointment.
(1) In addition to the Secretary of the Army, the following may select, appoint, and terminate contracting officers:
(i) The ASA(AL&T) or designee.
(ii) The Deputy Assistant Secretary of the Army for Procurement (DASA(P)) or designee.
(iii) HCAs.
(2) PARCs when authorized by the HCA. (The Commander, USACE, may delegate contracting officer appointment authority to Division Commanders as deemed necessary for efficient operations.). HCAs and appointed PARCs may redelegate to chiefs of contracting offices under their jurisdiction with or without the power of redelegation.
5101.603-1-90-Other Individuals Authorized to Make Purchases.
(a) Individuals in (b)(1), (2) and (3) shall prepare and submit information for reporting purposes to the supporting contracting office as specified by that office. Individuals in (b)(4) shall normally report to the contracting office supporting the Mobilization Base.
(b) In addition to individuals identified in 1.602-2-91 and 1.603, other individuals may be authorized to make purchases as specified in (1) through (6).
(1) Individuals may be authorized by a contracting officer to place calls under blanket purchase agreements (see FAR and AFARS Subpart 13.2 and DFARS Subpart 213.2).
(2) Army aviators and masters of Army owned or operated vessels may make emergency purchases of supplies (e.g., fuels, oils, parts) and services (e.g., mechanical services, hanger services, landing and docking fees and employment of civilian guards or watchmen to safeguard Government property) using Standard Form 44 (see 13.505-3) or provisions of AR 710-2 and DA PAM 710-2-2 under any of the following conditions:
(i) Authorized flights or voyages during which mechanical or meteorological conditions prevent obtaining required supplies and services from Government facilities.
(ii) Conditions under which continuation of flight, voyage or mission would constitute a hazard to safety or endanger public property.
(iii) Conditions under which procurement of supplies and services from Government facilities would interfere with approved flight plans or voyages.
(3) Individuals to whom International Merchant Purchase Authorization Cards (I.M.P.A.C.) are issued may use them in accordance with Subpart 13.90.
(4) Individuals in Reserve Components may make purchases in event of mobilization using Standard Form 44 and FORSCOM Mobilization and Deployment System (FORMDEPS), Volume III. Reserve Component unit commanders are authorized to make over the counter type purchases not exceeding $2,500 per transaction using Standard Form 44 in the event of a Federal Mobilization Order requiring movement of the unit to a mobilization station or site or where procurement support is not readily available from a supporting installation. This temporary authority shall expire upon resumption of procurement support by the contracting office at the mobilization station or supporting installation.
(5) Individuals to whom U.S. Government National Credit Cards are issued may use them while on official travel.
(6) Individuals authorized by AR 725-50 may order supplies from General Services Administration Stores Depots using MILSTRIP procedures.
HCAs shall establish criteria and procedures to ensure that prospective contracting officers (above the Simplified Acquisition Threshold) have the knowledge and experience to effectively and efficiently support their customers and successfully fulfill their fiduciary responsibilities. As a minimum, selection criteria include:
(a) A successful track record as a contract specialist, cost/price analyst or contract administrator of a scope and complexity comparable to the acquisitions to be assigned.
(b) Business education and knowledge sufficient to understand the business operating cycle, financial and market analysis, and measures of corporate performance to effectively structure business arrangements that best meet the needs of the Government and the prospective contractor(s).
(c) Knowledge of acquisition and fiscal policies and procedures, including the panoply of acquisition instruments available to the Government, to effectively develop and execute acquisition and contracting strategies, and manage the resulting business arrangements.
(d) Compliance with Public Law 101-510, "National Defense Authorization Act for Fiscal Year 1991" Title XII, "Defense Acquisition Workforce Improvement Act," November 5, 1990, as amended by Public Law 106-398, "National Defense Authorization Act for Fiscal Year 2001," Section 808, "Qualifications Required for Employment and Assignment in Contracting Positions."
5101.690 Procurement Management Assistance.
HQDA will conduct the Procurement Management Assistance Program (PMAP) in accordance with Appendix CC. HCAs shall conduct onsite reviews of each of their satellite contracting offices to ensure compliance with laws, policies, regulations, directives, AFARS Appendix CC, etc. at a minimum, once every 24 months. Copies of Review Reports will be furnished to the HQDA PMAP Team Leader within 60 days of completing a review.
5101.690-1 Management Controls
Management controls within each contracting organization are an element of day-to-day operations. Appendix BB, Management Control Evaluation Checklist, is provided to assist managers at all levels in evaluating compliance with key management controls and to identify and correct weaknesses. Due to the volume of the test questions, it should not be construed that all questions are mandatory, nor all inclusive. The checklist should be supplemented to include areas specific to each contracting office, and should include the DASA(P) Areas of Special Interest, which are issued each fiscal year.
Subpart 5101.7 -- Determinations and Findings
5101.707 -- Signatory Authority.
Each Secretarial determination request must be signed by the contracting officer and HCA. See Subpart 5153.9003 for a sample Determination and Findings format.
Subpart 5101.90 -- Nonappropriated Funds
DoD policy for contract actions using nonappropriated funds is in DoDD 4105.67. See AR 215-1 and AR 215-4 for implementing policies and procedures for Army nonappropriated fund acquisitions.
5101.9002 -- Contracting Authority.
Appropriated fund contracting officers may also be designated as nonappropriated fund contracting officers. See AR 215-4.
