FAC 2005-37 Notice of Modifications

FAC 2005-37

October 14, 2009 and November 30, 2009

Updated FAR Matrix provided as an attachment


This FAC limits the period of performance for acquisitions awarded under unusual and compelling urgency that are greater than the simplified acquisition threshold to one year unless the head of the agency entering into the contract determines that exceptional circumstances apply (FAR 6.302-2(d)).

This FAC incorporates an additional exception to cost or pricing data requirements under the commercial item exception. Cost and pricing data is not required when purchasing services that are not offered but /of a type/ offered in substantial quantities in the commercial marketplace and the contracting officer determines in writing that the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price of the services (FAR 15.403-1(c)(3)(ii)).

This FAC incorporates limitations on pass-through charges. There is a new clause, FAR 52.215-23, that applies to contracts or orders with an estimated value that exceeds the simplified acquisition threshold and is to be a cost-reimbursement type contract. The contracting officer may include the clause in other types of contracts or those below the simplified acquisition threshold when determined to be appropriate (FAR 15.408(n)(2)(ii)). The Alternate I allows for these costs based on the contracting officer's determination that the contractor is adding value. This is a flowdown clause.

This FAC identifies a new database, the Disaster Response Registry. The database will be maintained by FEMA. A definition for the registry is incorporated into Section 2.101. The information pertaining to the registry is incorporated into FAR 4.1104. The database should be reviewed during market research when contracting for debris removal, distribution of supplies, reconstruction, and other disaster or emergency relief activities.

This FAC removes all references to the National Response Plan (NRP) and Incidents of National Significance.

This FAC makes changes pertaining to incentive contracts under FAR 16.4. The changes include: A D&F signed by the HCA is required for all contracts including incentive and award fee provisions; Award fee is prohibited when a contractor's overall cost, schedule, and technical performance is below satisfactory; The use of adjectival ratings and associated descriptions that are included in FAR 16.401 as Table 16-1 are mandated; Rollover is prohibited; Agencies are required to develop performance measures to determine the efficacy of the use of the award/incentive fees; and, agencies are required to establish a means to identify and share best practices related to the use and administration of award/incentive fees. NOTE: The DOC OAM Risk Management Division will be reviewing the Award Fee/Incentive Fee requirements when they conduct contract reviews.