SUBPART 5201.1—PURPOSE, AUTHORITY, ISSUANCE
The Navy Marine Corps Acquisition Regulation Supplement (NMCARS) establishes uniform Department of the Navy (DoN) policies and procedures implementing and supplementing the Federal Acquisition Regulation (FAR) and the Defense FAR Supplement (DFARS).
(b) The NMCARS is prepared, issued, and maintained pursuant to the authority of SECNAVINST 5400.15.
5201.104 (DFARS 201.104) Applicability.
The NMCARS applies to all DoN activities in the same manner and to the same extent as specified in FAR 1.104 and DFARS 201.104.
5201.105-2 Arrangement of regulations.
(c) References and citations.
(1) References to this supplement within this supplement will be without a name or acronym prefix. References to FAR citations in this supplement should be read to include any corresponding paragraphs of the DFARS and this supplement and any additional authorizations, restrictions, policies and procedures they may contain. For example, the words "...when authorized under FAR Part 25..." include authorities granted under FAR Part 25, DFARS Part 225 and Part 5225 of this supplement. A DFARS cite in parentheses immediately after the NMCARS cite means related coverage is contained in the DFARS (e.g. 5201.104 (DFARS 201.104)). A Procedures, Guidance and Information (PGI) cite in parenthesis immediately after the NMCARS cite means related coverage is contained in PGI (e.g. 5201.104 (PGI 201.104)).
5201.107 (DFARS 201.107) Certifications.
In accordance with Section 29 of the Office of Federal Procurement Policy Act (41 U.S.C. 425), a new requirement for a certification by a contractor or offeror may not be included in any activity supplement, clause book, contract clause, solicitation provision, policy letter, policy memorandum or any other similar document unless-
(1) The certification requirement is specifically imposed by statute; or
(2) Written justification for such certification is provided to the Secretary of Defense by ASN(RD&A), and the Secretary of Defense approves in writing the inclusion of such certification requirement.
(b) Delegation of authority. Within this supplement, any authorities assigned or delegated to a specific level may be delegated or redelegated, unless otherwise restricted.
5201.201 Maintenance of the FAR.
5201.201-1 (DFARS 201.201-1) The two councils.
(d)(i) Submit proposed revisions to the FAR, DFARS or NMCARS to DASN(A&LM) via the Deputy/Assistant Commander for Contracts of the cognizant HCA. Each proposed revision should include a legal position and identify the name, code, and telephone number of the activity point of contact.
SUBPART 5201.3—AGENCY ACQUISITION REGULATIONS
5201.303 (DFARS 201.303) Publication and codification.
(a)(ii) To the extent possible, all text in this Supplement (whether implementing or supplemental) is numbered as if it were implementing the FAR or DFARS.
(A) Implementing numbering is the same as its FAR or DFARS counterpart, preceded by the prefix "52".
(B) Supplemental numbering is the same as its FAR or DFARS counterpart, preceded by the prefix “52” with the addition of a number 90 and up for parts, subparts, sections, or subsections or S-90 and up for lower divisions.
5201.304 (DFARS 201.304) Agency control and compliance procedures.
(4) DoN Procedures for Control of Component Clause Use.
(A) Definitions.
(a) "Clause" means a term, condition or provision of the solicitation/contract of the type set forth in FAR Part 52, DFARS Part 252, and NMCARS Part 5252. A clause, as used in these procedures, includes everything in parts B through M of a solicitation/contract except:
(1) The list of supplies or services and prices/costs in Section B;
(2) Specifications and statements of work in Section C;
(3) Packaging and marking requirements in Section D;
(4) Requirements for place of inspection/acceptance in Section E;
(5) Requirements for time, place, and method of delivery or performance in Section F;
(6) The list of attachments in Section J; and
(7) Brief statements of strictly administrative, informational nature, without significant cost or administrative impact on offerors or contractors, which the originating activity has determined do not fit the above definition of "clause".
(b) “Component” means an organizational entity exercising contracting authority within DoN.
(c) "Navy Clause Baseline" means all approved DoN standard component clauses.
(d) "Non-standard Component Clause" means a component clause that is not prescribed for use in a component regulation and has no significant effect beyond the internal operating procedures of the agency nor a significant cost or administrative impact on offerors or contractors.
(e) "Regulation" means any contracting supplement, policy letter, clause book, procedure, automated system, or similar regulatory instrument.
(f) "Standard Component Clause" means a component clause prescribed for use in a component regulation.
(B) Standard Component Clauses.
(a) Usage. All component clauses used in solicitations and/or contracts shall be standard clauses, unless:
(1) A deviation has been authorized in accordance with (c) below; or
(2) One of the exceptions listed in (C) below permitting use of non-standard clauses is applicable.
(b)(1) Each contracting activity shall publish new component clauses or changes to existing component clauses that require USD(AT&L) approval as a proposed rule in the Federal Register for public comment. After receipt and analysis of public comments, the contracting activity shall submit the proposed rule, in accordance with DFARS 201.201-1(d)/NMCARS 5201.201-1(d) and DFARS 201.301, through the HCA and DASN(A&LM) to the DAR Council Director, prior to publication as a final rule.
(2) New standard component clauses, or changes to existing component clauses, which do not have significant cost or administrative impact on offerors/contractors, do not require publication for public comment or approval of DASN(A&LM) or USD(AT&L). Copies of all new standard component clauses or changes, that do not require DASN(A&LM) or USD(AT&L) approval, shall be provided to DASN(A&LM) for inclusion in the Navy Clause Baseline.
(c) In competitive procurements, modifications of standard component clauses which may significantly increase cost or administrative impact on offerors/contractors shall be submitted by the Deputy/Assistant Commander for Contracts to the DAR Council Director, via DASN(A&LM), for approval by USD(AT&L)DPAP. The HCA may approve other changes to standard component clauses that do not constitute deviations to the FAR/DFARS/NMCARS.
(d) All standard component clauses shall be numbered in accordance with 5252.101.
(C) Non-standard Component Clauses. Non-standard clauses are not included in the Navy Clause Baseline and do not require approval of DASN(A&LM), unless usage constitutes a deviation from FAR/DFARS/NMCARS. Non-standard Component Clauses may be used only when they are:
(a) non-standard negotiated component clauses used by mutual agreement of both parties in non-competitive procurements;
(b) non-standard component clauses in dual source or limited competition procurements that have advance agreement of the parties;
(c) clauses required by FAR or DFARS to be tailored to the individual situation (such as Organizational Conflict of Interest);
(d) provisions providing proposal preparation requirements or evaluation/award criteria; or
(e) clauses which have no significant cost or administrative impact on offerors/contractors, and the contracting activity chooses not to designate or control them as standard component clauses.
(D) "Substantially the Same As" Clauses. Component clauses may be used to implement FAR/DFARS/NMCARS clauses which permit usage of clauses "substantially the same as" the prescribed clause or other variation. These clauses do not require DASN(A&LM) approval. "Substantially the same as" clauses should cite the FAR/DFARS/NMCARS clause number, title, and date followed by (VARIATION).
(E) Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items.
(a) Notwithstanding the requirements set forth in paragraphs 5201.304(4)(B), (C) and (D), the following approvals are required for use of agency/component-unique provisions or clauses in solicitations/contracts for commercial items:
(1) DASN(A&LM) is the approval authority for inclusion of a component provision or clause that supplements FAR Part 12/DFARS Part 212 provisions/clauses and is necessary to reflect agency-unique statutes applicable to the acquisition of commercial items.
(2) The NSPE is the approval authority for inclusion of any agency/component provision or clause that is otherwise not necessary to reflect an agency-unique statute applicable to the acquisition of commercial items. This authority is not delegable.
(b) Annex (7), Commercial Item Acquisitions Clause Use, outlines current sources of approval authority governing inclusion of provisions and clauses in contracts for commercial item acquisitions. See NMCARS 5212.301 (DFARS 212.301) for additional guidance.
SUBPART 5201.4—DEVIATIONS FROM THE FAR
5201.402 (DFARS 201.402) Policy.
(2) Submit to DASN(A&LM), those requests for individual or class deviation that require approval at a level higher than the HCA.
5201.403 (DFARS 201.403) Individual deviations.
(1) DASN(A&LM) is the approval authority for:
(i) individual deviations from the FAR or DFARS other than those specified in 5201.403(2), DFARS 201.402(1) and DFARS 201.403(2).
(ii) individual or class deviations from NMCARS.
(iii) deviations from certain component clauses (see 5201.304(4)).
(2) In the case of a purchase or contract by an offshore contracting activity with a foreign contractor made outside the United States, its possessions, or Puerto Rico, deviations from contract clauses may be granted by the HCA provided that no change in intent, principle, or substance is made.
5201.404 (DFARS 201.404) Class deviations.
Deviations involving basic agreements, basic ordering agreements, or master agreements are considered class deviations.
(b)(ii) DASN(A&LM) is the approval authority for class deviations described at DFARS 201.404(b)(ii).
SUBPART 5201.6—CAREER DEVELOPMENT, CONTRACTING AUTHORITY, AND RESPONSIBILITIES
5201.601-90 Department of the Navy authorities and responsibilities.
(a) NAVFACENGCOM cognizance of public works and civil works.
(1) Responsibility. Commander, NAVFACENGCOM is responsible for awarding and administering all architect-engineer, construction and facilities support contracts.
(2) Administration of construction portions of contracts. When a contract for construction of civil works is made directly between the DoN and a builder (as distinguished from the contractor who is to operate the facilities) NAVFACENGCOM will be the contracting agency with the work to be financed by transfer of funds from the sponsoring contracting activity to NAVFACENGCOM. All other contracts potentially requiring construction of civil works shall include the clause at 5252.201-9000, Civil Works - Delegation to Naval Facilities Engineering Command.
(b) NAVSUPSYSCOM contracting responsibilities. NAVSUPSYSCOM contracting responsibilities include:
(1) providing DoN-wide policy and procedures for simplified acquisition as defined in FAR Part 13, except that NAVFAC may utilize other procedures for construction, A/E services, and base support; and
(2) contracting for supplies and services throughout the DoN for which no other contracting activity, office or command is delegated contracting authority. This includes contracting for Naval (but not Marine Corps) activities for visual information (motion picture and videotape) productions under the technical cognizance of and via coordination with the Naval Media Center, unless an exception is granted by the Chief of Naval Operations (N09C4).
(3) providing DoN-wide policy and procedures for AbilityOne (Javits-Wagner-O’Day Act) acquisitions as defined in FAR Part 8.
(c) Military Sealift Command (MSC) responsibility for services of ships and craft for other than transportation. The MSC is responsible for purchasing or otherwise providing DoN
activities, as requested, the services of ocean-going ships and craft for purposes other than transportation such as oceanographic research and survey including underwater research; cable laying; repair facilities; and range instrumentation. This includes ferries and tugs, but excludes (1) other harbor craft; (2) ferries and tugs used for husbanding services; and (3) ferries and tugs used for OCONUS services. Requirements for such services or ships, except those (1) specifically excluded by this paragraph (c); (2) met by ships and craft organic to the Military Services; and (3) required in the installation phase of a system by the systems contractor, shall be placed with MSC in a timely manner to permit maximum competition.
(d) Chief of Naval Research (CNR) responsibility for the charter or sublet of government owned research ships. The CNR is responsible for DoN charter party agreements wherein DoN owned oceanographic research ships are leased to research institutions for the performance of contract research.
5201.602 Contracting officers.
(b) Contract documents shall be forwarded to the appropriate attorney or attorneys in the Office of General Counsel for review as to form and legality and any additional pertinent comment or advice.
5201.602-2 (DFARS 201.602-2) Responsibilities.
(2)(i) Employees of foreign governments assigned to multi-national Joint Project Offices are
authorized to serve as CORs.
5201.602-3 (FAR 1.602-3) Ratification of unauthorized commitments.
(b)(3) HCAs may delegate authority to ratify unauthorized commitments of $100,000 or less to no lower than the Deputy/Assistant Commander for Contracts and may delegate authority to ratify unauthorized commitments of $50,000 or less to a level no lower than the CCO.
(c)(7) HCAs shall establish procedures for the ratification of unauthorized commitments to include documentation from the individual making the unauthorized commitment, a report and endorsement from the Commanding Officer of the Activity concerned to the contracting officer, preparation of a determination and findings addressing the FAR 1.602-3(c)(1) through (7) limitations, review by the appropriate counsel of the Office of General Counsel, a recommendation by the contracting officer as to ratification, signature of the determination and findings by the ratification official, and execution of the appropriate contractual documents. Comptroller review is required for ratifications in excess of $1,000,000 where the use of expired funds is anticipated.
(S-90) DoN Guidance.
The following is provided as guidance for HCAs in establishing procedures to ratify unauthorized commitments. In establishing procedures, minimizing the need to ratify unauthorized commitments should be considered as a goal.
(a) The individual making the unauthorized commitment should forward to the activity’s Commanding Officer, or civilian equivalent, documentation concerning the transaction, to include:
(1) A signed statement describing--
(i) the circumstances surrounding the unauthorized commitment;
(ii) why normal procurement procedures were not followed;
(iii) what bona fide need of the Government necessitated the commitment;
(iv) whether any benefit was received and its value;
(v) how and when it was identified as an unauthorized commitment;
(vi) attempts to resolve the unauthorized commitment prior to requesting authorization (such as returning merchandise); and
(vii) any other pertinent facts.
(2) All orders, invoices, or other documentary evidence of the transaction.
(b) If the Commanding Officer, or civilian equivalent, concurs that the commitment should be ratified, then the Commanding Officer, or civilian equivalent, should forward the documentation described above in a report to the contracting officer with an endorsement that:
(1) Verifies the accuracy and completeness of the documentation;
(2) Describes any disciplinary action taken and the measures taken to prevent a recurrence of unauthorized commitments; and
(3) Provides a complete purchase description and funding for the ratifying contract.
(c) If the statement required by (a)(1) is unavailable, the Commanding Officer, or civilian equivalent, should explain in the report the reason the individual’s statement is not available and insure that all information required under (a)(1) is provided to the extent possible.
(d) The contracting officer should:
(1) Review the documentation and endorsement provided;
(2) Determine the adequacy of the facts and documentation, obtaining any additional material required;
(3) Prepare a determination and findings for signature by the ratifying official addressing the limitations in FAR 1.602-3(c)(l) through (7);
(4) Prepare a recommendation to the ratifying official;
(5) Prepare appropriate contractual documents; and
(6) Submit the contract and supporting documents to the appropriate counsel of the Office of the General Counsel for an opinion as to form and legality and for any additional pertinent comment or advice.
(e) Comptroller review is recommended for all ratifications.
(f) The ratifying official to whom authority has been delegated pursuant to NMCARS 5201.602-3(b)(3) should review the file, and if ratification is proper, sign the determination and findings.
(g) Records. HCAs should ensure that a record of all ratification actions is maintained. This record should include the identity of the contracting office performing the ratification, the dollar value of the ratification action, and a copy of the required determination and findings.
(h) Reports.
(1) A copy of all ratifications of unauthorized commitments must be submitted to the Senior Contracting Leader within the HCA.
(2) Within 30 days following the end of each fiscal quarter (30 October, 30 January, 30 April, 30 July) HCAs should provide a report via e-mail to RDAPolicy@navy.mil with the
subject “Ratifications by COMMAND NAME during the X Quarter FYXX” using the format at Annex 4. That information includes:
(a) Ratification Amount
(b) Name of Contracting Officer Recommending Ratification
(c) Name of Ratifying Official
(d) Date of Ratification approval
(e) Description of Supplies/Services bought and from whom
(f) Brief description of the circumstances of the purchase, i.e. why normal procurement procedures were not followed
5201.603 Selection, appointment, and termination of appointment.
HCAs are the agency head’s designees for the selection and appointment of contracting officers, and for the termination of their appointments.
5201.690 Requirements to be met before entering into contracts.
For all procurement actions subject to business clearance requirements, HCAs must establish business clearance approval levels that are at least one level above the individual responsible for conducting the negotiations or, if negotiations are not required, for handling the proposed action.
(a) Generally, all significant contracting actions should be subject to some form of review prior to award. The formal review process is conducted and documented through the use of the business clearance. The purpose of the business clearance is to demonstrate that the proposed action conforms to law, regulation, good business practices and DoN acquisition policies.
(b) HCAs should establish written procedures for the review and approval of business clearances for:
(1) Contracts (including indefinite-delivery contracts) and contract modifications for the acquisition of supplies or services not within the scope or under the terms of an existing contract.
(2) Undefinitized contract actions (see DFARS Subpart 217.74.)
(3) Basic ordering agreements.
(4) Modifications and changes issued pursuant to contract clauses such as the “Changes” or “Government Property” clauses.
(5) Retroactive pricing after completion.
(6) Definitization of any undefinitized/unpriced action under (2) or (4) above.
(7) Advance agreements on special or unusual cost items (see 5231.109.)
(8) Actions that result in the establishment, modification or recision of a guarantee of performance on a government contract by a third party.
(c) The degree and complexity of documentation required, and approval levels/thresholds, for various actions should be governed by the magnitude and complexity of the action being reviewed.
5201.691 Procurement Management Oversight.
(a) DASN(A&LM) is responsible for oversight and review of HCAs and other designated DoN contracting organizations, and will oversee and provide guidance on the Procurement Performance Management Assessment Program (PPMAP).
(b) HCAs are responsible for oversight and review of their subordinate contracting organizations.
(c) The Commander, Naval Supply Systems Command (COMNAVSUPSYSCOM) is also responsible for oversight and review of all activities with NAVSUPSYSCOM-delegated contracting authority, and other activities as directed by DASN(A&LM) or higher-level authority.
(d) Fleet and Type Commanders are responsible for oversight and review of afloat units. Reviews may be a part of regularly scheduled Logistics Management Assessments (LMAs).
(e) Each contracting activity assigned procurement management oversight is responsible for preparing and maintaining a schedule of reviews, and conducting reviews of all subordinate organizations with delegated contracting authority.
(f) HCAs shall:
(1) When requested, nominate senior contracting personnel to serve on DASN(A&LM) PPMAP teams; and
(2) By December 30th of each year, provide DASN(A&LM) a summary of relevant findings (best practices, deficiencies, recommendations, etc.) from the results of the previous fiscal year’s PPMAP activities.
(g) DASN(A&LM) shall be advised immediately any time an organization’s contracting authority or purchase card authority is revoked, suspended or reduced.
The primary objective of procurement management oversight is to encourage and assist activities in making continuous improvements in their acquisition processes. It also provides a mechanism for sharing "best practices" throughout the DoN. Procurement management oversight in the DoN is conducted through the Procurement Performance Management Assessment Program (PPMAP). The PPMAP is a flexible, performance-based, process-oriented program that includes self-assessment of:
(a) control of and continuous improvement in critical procurement processes;
(b) performance-based metrics; and
(c) the results of employee and customer surveys.
