[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 1997 Edition]
[From the U.S. Government Publishing Office]
[[Page 1]]
48
Federal Acquisition Regulations System
CHAPTERS 3 TO 6
Revised as of October 1, 1997
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF OCTOBER 1, 1997
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1997
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
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Table of Contents
Page
Explanation................................................. v
Title 48:
Chapter 3--Department of Health and Human Services........ 3
Chapter 4--Department of Agriculture...................... 225
Chapter 5--General Services Administration................ 289
Chapter 6--Department of State............................ 491
Finding Aids:
Table of CFR Titles and Chapters.......................... 575
Alphabetical List of Agencies Appearing in the CFR........ 591
List of CFR Sections Affected............................. 601
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Cite this Code: CFR
To cite the regulations in this volume use title, part and
section number. Thus, 48 CFR 301.101 refers to title 48,
part 301, section 101.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
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noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
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those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
the period beginning January 1, 1986, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
volume, contact the issuing agency. The issuing agency's name appears at
the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-523-5227
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, Washington, DC 20408.
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Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 1997.
[[Page vii]]
THIS TITLE
Title 48--Federal Acquisition Regulations System is composed of
eight volumes. The chapters in these volumes are arranged as follows:
Chapter 1 (parts 1 to 51), chapter 1 (parts 52 to 99), chapter 2 (parts
201 to 251 and parts 252 to 299), chapters 3 to 6, chapters 7 to 14,
chapters 15 to 28 and chapter 29 to end. The contents of these volumes
represent all current regulations codified under this title of the CFR
as of October 1, 1997.
The Federal acquisition regulations in chapter 1 are those
government-wide acquisition regulations jointly issued by the General
Services Administration, the Department of Defense, and the National
Aeronautics and Space Administration. Chapters 2 through 99 are
acquisition regulations issued by individual government agencies. Parts
1 to 69 in each of chapters 2 through 99 are reserved for agency
regulations implementing the Federal acquisition regulations in chapter
1 and are numerically keyed to them. Parts 70 to 99 in chapters 2
through 99 contain agency regulations supplementing the Federal
acquisition regulations.
The OMB control numbers for the Federal Acquisition Regulations
System appear in section 1.106 of chapter 1. For the convenience of the
user section 1.106 is reprinted in the Finding Aids section of the
second volume containing chapter 1 (parts 52 to 99).
The two volumes containing chapter 1 include an index to the Federal
acquisition regulations. The second volume, containing chapter 1 (parts
52 to 99), includes contract clauses and forms.
For this volume, Ann E. Maso was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Frances D.
McDonald, assisted by Alomha S. Morris.
[[Page viii]]
[[Page 5]]
SUBCHAPTER A--GENERAL
PART 301--HHS ACQUISITION REGULATION SYSTEM--Table of Contents
Subpart 301.1--Purpose, Authority, Issuance
Sec.
301.101 Purpose.
301.102 Authority.
301.103 Applicability.
301.104 Issuance.
301.104-1 Publication and code arrangement.
301.104-2 Arrangement of regulations.
301.104-3 Copies.
301.105 OMB approval under the Paperwork Reduction Act.
Subpart 301.2--Administration
301.201 Maintenance of the HHSAR.
301.270 Executive Committee for Acquisition.
301.271 Timing of HHSAR revisions.
Subpart 301.3--Agency Acquisition Regulations
301.301 Policy.
301.302 Limitations.
301.303 Publication and codification.
301.304 Agency control and compliance procedures.
Subpart 301.4--Deviations From the FAR
301.403 Individual deviations.
301.404 Class deviations.
301.470 Procedure.
Subpart 301.5--Agency and Public Participation
301.501 Solicitation of agency and public views.
301.501-2 Opportunity for public comments.
301.501-3 Exceptions.
301.503 Public meetings.
Subpart 301.6--Contracting Authority and Responsibility
301.602-3 Ratification of unauthorized commitments.
301.603 Selection, appointment, and termination of appointment.
301.603-1 General.
301.603-2 Selection.
301.603-3 Appointment.
301.603-4 Termination.
301.603-70 Delegation of contracting officer responsibilities.
301.670 Head of the contracting activity.
301.670-1 Responsibility.
301.670-2 Designation.
301.670-3 Redelegation.
Subpart 301.7--Determinations and Findings
301.703 Class determinations and findings.
301.704 Content.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 49 FR 13961, Apr. 9, 1984, unless otherwise noted.
Subpart 301.1--Purpose, Authority, Issuance
301.101 Purpose.
(a) The Department of Health and Human Services Acquisition
Regulation (HHSAR) is issued to establish uniform acquisition policies
and procedures for the Department of Health and Human Services (HHS)
which conform to the Federal Acquisition Regulation (FAR) System.
(b) The HHSAR implements and supplements the FAR. (Implementing
material expands upon or indicates the manner of compliance with related
FAR material. Supplementing material is new material which has no
counterpart in the FAR.)
(c) The HHSAR contains all formal departmental policies and
procedures that govern the acquisition process or otherwise control
contracting relationships between the Department's contracting offices
and contractors.
301.102 Authority.
The HHSAR is prescribed by the Assistant Secretary for Management
and Budget under the authority of 5 U.S.C. 301 and section 205(c) of the
Federal Property and Administrative Services Act of 1949, as amended (40
U.S.C. 486(c)), as delegated by the Secretary. The Assistant Secretary
for Management and Budget has redelegated the authority to establish all
departmental acquisition policy and publish all acquisition regulations
to the Deputy Assistant Secretary for Management and
[[Page 6]]
Acquisition. This authority is not redelegable.
[49 FR 13961, Apr. 9, 1984, as amended at 54 FR 24342, June 7, 1989]
301.103 Applicability.
The FAR and HHSAR apply to all HHS acquisitions as stated in FAR
1.103. Unless specified otherwise, these regulations apply to
acquisitions within and outside the United States.
301.104 Issuance.
301.104-1 Publication and code arrangement.
(a) The HHSAR is also published in the same forms as indicated in
FAR 1.104-1(a).
(b) The HHSAR is issued in the Code of Federal Regulations (CFR) as
Chapter 3 of Title 48, Department of Health and Human Services
Acquisition Regulation. It may be referenced as ``48 CFR Chapter 3.''
301.104-2 Arrangement of regulations.
(a) General. The HHSAR conforms to the FAR with respect to
divisional arrangements; i.e., subchapters, parts, subparts, sections,
subsections, and paragraphs.
(b) Numbering. The FAR System of numbering permits the keying of the
same or similar subject matter throughout Chapters 1 (FAR) and 3
(HHSAR). However, unlike the FAR numbering scheme, our scheme varies
somewhat in the numbering to the left of the decimal point. Whereas the
FAR only identifies the part number to the left of the decimal point,
our corresponding reference identifies the chapter as well. For example,
this corresponding paragraph in the FAR is numbered 1.104-2(b) where
``1'' is the part number (may be one or two digits and is followed by a
decimal point), ``1'' (to the right of the decimal point) is the subpart
number, ``04'' (always two digits) is the section number, ``2'' is the
subsection number (always hyphenated), and ``(b)'' is the paragraph
reference. The corresponding HHSAR reference is 301.104-2(b) where the
``3'' or first digit is the chapter number assigned to the particular
department or agency (may be two digits) and the ``01'' represents the
part number (part numbers will always be two digits for agencies
implementing the FAR). The remaining numbers are identical to and
represent the same divisions as the FAR example.
(c) References and citations. (1) Unless otherwise stated,
references, indicate parts, subparts, sections, subsections, etc, of
this regulation, the HHSAR.
(2) This regulation shall be referred to as the Department of Health
and Human Services Acquisition Regulation (HHSAR). Any reference may be
cited as ``HHSAR'' followed by the appropriate number. Within the HHSAR,
the number alone will be used.
(3) Citations of authority shall be incorporated where necessary.
All FAR reference numbers shall be preceded by ``FAR''.
301.104-3 Copies.
Copies of the HHSAR in Federal Register and CFR form may be
purchased by the public from the Superintendent of Documents, Government
Printing Office (GPO), Washington, DC 20402. Lose-leaf copies of the
HHSAR may be obtained by departmental personnel having a need for the
document by placing an order with a Directives Distribution Coordinator
in accordance with General Administration Manual Chapter 1-00, HHS Staff
Manual System.
301.105 OMB approval under the Paperwork Reduction Act.
The following OMB control numbers apply to the information
collection and recordkeeping requirements contained in this regulation:
------------------------------------------------------------------------
OMB control
HHSAR segment no.
------------------------------------------------------------------------
315.4...................................................... 0990-0139
324.70..................................................... 0990-0136
332.406.................................................... 0990-0134
342.7103................................................... 0990-0131
352.215-71................................................. 0990-0139
352.216-70................................................. 0990-0138
352.224-70................................................. 0990-0136
352.228-70................................................. 0990-0135
352.232-71................................................. 0990-0134
352.232-73................................................. 0990-0134
352.233-70................................................. 0990-0133
352.270-1.................................................. 0990-0129
352.270-2.................................................. 0990-0129
352.270-3.................................................. 0990-0129
352.270-5.................................................. 0990-0130
370.1...................................................... 0990-0129
370.2...................................................... 0990-0129
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------------------------------------------------------------------------
The OMB control number ``OMB No. 0990-0115'' is to be included in the
upper right corner of the first page of all solicitations, purchase
orders, and contracts issued by departmental contracting activities. The
number represents approval of the HHS acquisition process and covers
recordkeeping and reporting requirements which are unique to individual
acquisitions (e.g., requirements contained in specifications, statements
of work, etc.).
[49 FR 13961, Apr. 9, 1984, as amended at 50 FR 23126, May 31, 1985; 50
FR 38004, Sept. 19, 1985; 51 FR 44293, Dec. 9, 1986; 53 FR 15562, May 2,
1988]
Subpart 301.2--Administration
301.201 Maintenance of the HHSAR.
(a) The HHSAR is prepared and issued under the authority of the
Deputy Assistant Secretary for Management and Acquisition. Acquisition
policies and procedures which are necessary to implement, supplement, or
deviate from the FAR will be issued in the HHSAR by the Deputy Assistant
Secretary for Management and Acquisition when necessary to accomplish
Department-wide acquisition objectives.
(b) The HHSAR is maintained by the Office of Acquisition and Grants
Management. The Director, Office of Acquisition and Grants Management is
responsible for developing and preparing for issuance all acquisition
regulatory material to be included in the HHSAR.
[49 FR 13961, Apr. 9, 1984, as amended at 50 FR 23126, May 31, 1985; 50
FR 38004, Sept. 19, 1985; 54 FR 24342, June 7, 1989]
301.270 Executive Committee for Acquisition.
(a) The Deputy Assistant Secretary for Management and Acquisition
has established the Executive Committee for Acquisition (ECA) to assist
and facilitate the planning and development of departmental acquisition
policies and procedures and to assist in responding to other agencies
and organizations concerning policies and procedures impacting the
Federal acquisition process.
(b) The ECA consists of members and alternates from the Office of
Acquisition and Grants Management, Division of Contract Operations-OS,
Office of Human Development Services, Health Care Financing
Administration, Social Security Administration, Public Health Service,
and, collectively, the regional offices. The ECA is chaired by the
Director, Office of Acquisition and Grants Management. All meetings will
be held at the call of the Chairman, and all activities will be carried
out under the direction of the Chairman.
(c) The ECA, to facilitate the planning, development, and
coordination of government-wide and department-wide acquisition policies
and procedures, is to:
(1) Advise and assist the Chairman concerning major acquisition
policy matters;
(2) Review and appraise, at appropriate intervals, the overall
effectiveness of existing policies and procedures; and
(3) Review and appraise the impact of new major acquisition
policies, procedures, regulations, and developments on current
acquisition policies and procedures.
(d) The Chairman will periodically issue a list of current members
and alternates specifying the name, title, organization, address, and
telephone number of each. The member organizations are responsible for
apprising the Chairman whenever a new member or alternate is to be
appointed to the ECA.
[49 FR 13961, Apr. 9, 1984, as amended at 50 FR 23126, May 31, 1985; 50
FR 38004, Sept. 19, 1985; 54 FR 24342, June 7, 1989]
301.271 Timing of HHSAR revisions.
HHSAR revisions will be issued throughout the year as the need
arises. HHSAR material shall become effective on the date cited in the
Federal Register issuance or on the date of the transmittal notice which
distributes it to HHSAR Staff Manual holders, unless otherwise
indicated.
Subpart 301.3--Agency Acquisition Regulations
301.301 Policy.
(a)(1) The FAR and HHSAR are intended to provide all necessary
regulatory guidance for the conduct of the
[[Page 8]]
acquisition process within the Department. However, there may be some
rare instances where regulations are necessary to implement and/or
supplement the FAR and/or HHSAR at the Operating Division (OPDIV) level
or lower. The Department discourages the proliferation of OPDIV and
lower level issuances, but will allow lower level issuances when deemed
pertinent.
[49 FR 13961, Apr. 9, 1984, as amended at 50 FR 23126, May 31, 1985; 50
FR 38004, Sept. 19, 1985]
301.302 Limitations.
The same limitations applicable to the FAR also apply to the HHSAR.
301.303 Publication and codification.
(a) The HHSAR shall be codified in Chapter 3 of Title 48, Code of
Federal Regulations. Any OPDIV or lower implementation or
supplementation of the HHSAR or FAR shall also be codified as part of
Chapter 3. Implementing material is that which expands upon or indicates
the manner of compliance with related higher level material.
Supplementing material is that for which there is no counterpart. Where
material in the FAR requires no implementation, there will be no
corresponding number in the HHSAR. Thus, there are gaps in the HHSAR
sequence of numbers where the FAR, as written, is deemed adequate.
Supplementary material shall be numbered as specified in FAR 1.303.
[49 FR 13961, Apr. 9, 1984, as amended at 50 FR 23126, May 31, 1985; 50
FR 38004, Sept. 19, 1985]
301.304 Agency control and compliance procedures.
(a) Whenever an OPDIV or lower level organization determines a need
for an acquisition regulation not covered by the FAR or HHSAR or wishes
to implement or supplement the coverage in either, the organization
shall prepare a memorandum that explains the need, background,
justification, and significant aspects of the proposed regulation and
send it, together with an outline, to the Director, Office of
Acquisition and Grants Management. The Director will analyze the request
to determine if it has applicability to the HHSAR or FAR; if not, the
Director will either approve or disapprove the request for incorporation
into the organization's acquisition regulation. If the request is
approved, the organization must prepare the proposed regulation in
Federal Register format, obtain all necessary concurrences, including
Office of General Counsel--Business and Administrative Law Division, and
send it to the Director, Office of Acquisition and Grants Management for
review and approval. The regulation must be prepared for signature by
the Deputy Assistant Secretary for Management and Acquisition. All
regulations will be required to be processed through the public
rulemaking process in the Federal Register.
(b) Only the organizations listed in paragraph (d) are authorized to
established acquisition regulations. As of the date of issuance of the
HHSAR, no acquisition regulations below the HHSAR level exist, and the
procedures detailed in paragraph (a) must be followed to initiate the
establishment of an OPDIV or lower level regulation.
(c) Under no circumstances shall any organization's implementation
or supplementation of the FAR or HHSAR conflict with, supersede, or
repeat, paraphrase, or otherwise restate policies or procedures
prescribed by these regulatory issuances. OPDIV or lower level material
shall follow the numbering system, format, and arrangement of the FAR
and HHSAR and will be applicable only within the organization issuing
it. One copy of all OPDIV or lower level material issued in loose-leaf
format shall be furnished the Director, Office of Acquisition and Grants
Management at the times of issuance.
(d) Material issued by OPDIV or lower level organizations to
implement and supplement the HHSAR and FAR shall be identified by
prefixes to the digit 3 (indicating Chapter 3-HHSAR) as follows, and
shall use the same numbering system as the HHSAR:
------------------------------------------------------------------------
Organization Prefix
------------------------------------------------------------------------
Office of the Secretary.................... OS
Health Care Financing Administration....... HCFA
Office of Human Development Services....... OHDS
Public Health Service...................... PHS
Alcohol, Drug Abuse, and Mental Health ADAMHA
Administration.
Centers for Disease Control.............. CDC
Food and Drug Administration............. FDA
[[Page 9]]
Health Resources and Services HRSA
Administration.
Indian Health Service.................... IHS
National Institutes of Health............ NIH
Social Security Administration............. SSA
------------------------------------------------------------------------
Each OPDIV or lower level acquisition regulation will be included in its
entirety as a separate appendix to 48 CFR Chapter 3. The Director,
Office of Acquisition and Grants Management will assign the appendix
designation upon approval of the initial request to establish the OPDIV
or lower level acquisition regulation.
[49 FR 13961, Apr. 9, 1984, as amended at 49 FR 36110, Sept. 14, 1984;
50 FR 23126, May 31, 1985; 50 FR 38004, Sept. 19, 1985; 53 FR 43206,
Oct. 26, 1988, 54 FR 24342, June 7, 1989]
Subpart 301.4--Deviations From the FAR
301.403 Individual deviations.
Requests for individual deviations to either the FAR or HHSAR shall
be prepared in accordance with 301.470 and forwarded through
administrative channels to the Director, Office of Acquisition and
Grants Management for review and approval.
[49 FR 13961, Apr. 9, 1984, as amended at 50 FR 23126, May 31, 1985; 50
FR 38004, Sept. 19, 1985; 54 FR 24342, June 7, 1989]
301.404 Class deviations.
Requests for class deviations to either the FAR or HHSAR shall be
prepared in accordance with 301.470 and forwarded through administrative
channels to the Deputy Assistant Secretary for Management and
Acquisition for review and approval.
[49 FR 13961, Apr. 9, 1984, as amended at 50 FR 23126, May 31, 1985; 50
FR 38004, Sept. 19, 1985; 54 FR 24342, June 7, 1989]
301.470 Procedure.
(a) When a contracting activity or contracting office determines
that a deviation is needed, it shall prepare a deviation request in
memorandum form and forward it through administrative channels to the
official designated as stated in 301.403 or 301.404. In an exigency
situation, the contracting activity or contracting office may request a
deviation verbally, but is required to confirm the request in writing as
soon as possible.
(b) A deviation request shall clearly and precisely set forth the:
(1) Nature of the needed deviation;
(2) Identification of the FAR or HHSAR from which the deviation is
needed;
(3) Circumstances under which the deviation would be used;
(4) Intended effect of the deviation;
(5) Time-frame; and
(6) Reasons which will contribute to complete understanding and
support of the requested deviation. A copy of pertinent background
papers such as a form or contractor's request should accompany the
deviation request.
[49 FR 13961, Apr. 9, 1984, as amended at 50 FR 23126, May 31, 1985; 50
FR 38004, Sept. 19, 1985; 54 FR 24342, June 7, 1989]
Subpart 301.5--Agency and Public Participation
301.501 Solicitation of agency and public views.
[49 FR 13961, Apr. 9, 1984, as amended at 50 FR 23126, May 31, 1985; 50
FR 38004, Sept. 19, 1985]
301.501-2 Opportunity for public comments.
(b) Public opportunity for comment on proposed changes or additions
to the HHSAR or lower level acquisition regulations will be offered
whenever the proposed regulation will have an impact on the public and/
or contractors. This will be accomplished by publishing a notice of
proposed rulemaking in the Federal Register which will include the
proposed language and the background and rationale for the proposed
regulation. Comments will not be solicited directly from professional or
industry associations or other interested parties; they will be expected
to respond based upon the Federal Register notification. Normally, the
public will be given 45 days to comment. Proposed changes or additions
to the HHSAR or FAR shall be staffed to the
[[Page 10]]
Executive Committee for Acquisition in accordance with 301.270.
[49 FR 13961, Apr. 9, 1984. Redesignated and amended at 50 FR 23126, May
31, 1985; 50 FR 38004, Sept. 19, 1985]
301.501-3 Exceptions.
(e) Comments will not be solicited from the public when the change
or addition to the HHSAR or lower level acquisition regulation is deemed
procedural in nature and concerns internal administrative directions
aimed at departmental personnel (see FAR 1.301(b)).
[49 FR 13961, Apr. 9, 1984, as amended at 49 FR 36110, Sept. 14, 1984.
Redesignated and amended at 50 FR 23126, May 31, 1985; 50 FR 38004,
Sept. 19, 1985]
301.503 Public meetings.
Public meetings will not normally be used to solicit comments or
views on HHSAR or lower level acquisition regulations. However, when the
topic is so controversial that the Department or OPDIV believes a public
meeting would be beneficial, public meetings will be convened.
[49 FR 13961, Apr. 9, 1984. Redesignated at 50 FR 23127, May 31, 1985;
50 FR 38004, Sept. 19, 1985]
Subpart 301.6--Contracting Authority and Responsibility
Source: 53 FR 15562, May 2, 1988, unless otherwise noted.
301.602-3 Ratification of unauthorized commitments.
(b) Policy. (1) The Government is not bound by agreements or
contractual commitments made to prospective contractors by persons to
whom contracting authority has not been delegated. However, execution of
otherwise proper contracts made by individuals without contracting
authority, or by contracting officers in excess of the limits of their
delegated authority, may be later ratified. The ratification must be in
the form of a written document clearly stating that ratification of a
previously unauthorized act is intended and must be signed by the head
of the contracting activity (HCA).
(2) The HCA or his/her designee is the official authorized to ratify
an unauthorized commitment (but see (b)(3), below).
(3) Ratification authority may be redelegated by the HCA, but not
below the level of the principal official responsible for acquisition
(PORA).
(c) Limitations. (5) The concurrence of legal counsel concerning the
payment issue is optional.
(7) The ratification shall be in written document form containing
verification of each limitation stated in FAR 1.602-3(c)(1)-(6), and
shall be processed in accordance with 301.602-3(e) Procedures.
(e) Procedures. (1) The individual who made the unauthorized
contractual commitment shall furnish the reviewing contracting officer
all records and documents concerning the commitment and a complete
written statement of facts, including, but not limited to: a statement
as to why the contracting office was not used, a statement as to why the
proposed contractor was selected, a list of other sources considered, a
description of work to be performed or products to be furnished, the
estimated or agreed contract price, a citation of the appropriation
available, and a statement of whether the contractor has commenced
performance.
(2) The contracting officer will review the submitted material, and
prepare the ratification document if he/she determines that the
commitment may be ratifiable. The contracting officer shall forward the
ratification document and the submitted material to the HCA or designee
with any comments or information which should be considered in
evaluation of the request for ratification. If legal review is
desirable, the HCA or designee will coordinate the request for
ratification with the Office of General Counsel, Business and
Administrative Law Division.
(3) If ratification is authorized by the HCA or designee, the file
will be returned, along with the ratification document, to the
contracting officer for issuance of a purchase order or contract, as
appropriate.
(4) HCA's or their designees will report the number and dollar value
of requests for ratifications received and
[[Page 11]]
ratifications authorized each calendar quarter. Reports shall be
submitted in an original and one copy to the Deputy Assistant Secretary
for Management and Acquisition to arrive no later than 30 calendar days
after the close of each calendar quarter.
[53 FR 43206, Oct. 26, 1988]
301.603 Selection, appointment, and termination of appointment.
301.603-1 General.
(a) The appointment and termination of appointment of contracting
officers shall be made by the principal official responsible for
acquisition (PORA). This authority is not delegable. The head of the
contracting activity shall ensure that only the PORA is redelegated, and
exercises, this authority.
(b) Only GS-1105 and 1106 and GS/GM-1101 and 1102 personnel shall be
appointed as contracting officers (see 301.603-3(b)).
(c) The appointment of contracting officers shall be made at one of
the four levels specified under the HHS Acquisition Certification
Program (see 301.603-3(b)).
(d) An individual shall be appointed only in instances where a valid
organizational need for a contracting officer can be demonstrated or a
replacement position is to be filled. Factors to be considered in
assessing the need for a contracting officer appointment include volume
of actions, complexity of work, and structure of the organization.
301.603-2 Selection.
(a) When an organizational need for a contracting officer is
determined or a replacement is required, an official (usually the
prospective contracting officer's immediate supervisor) will nominate a
contracting officer candidate. The nomination shall be accompanied by
the candidate's current Standard Form (SF) 171, Personal Qualifications
Statement, that contains all relevant information, to include that
stated in FAR 1.603-2, a copy of the nominee's most recent performance
appraisal, and a copy of the certificate issued under the HHS
Acquisition Certification Program indicating the current level of
certification.
(b) The PORA shall review the submitted material to determine the
candidate's ability to perform the contracting functions required to
meet the organizational need. If the PORA requires additional
information to make the decision, it shall be provided expeditiously by
the nominating official.
301.603-3 Appointment.
(a) Contracting officer appointments shall become effective when the
PORA signs the Standard Form 1402, Certificate of Appointment. SF 1402's
shall be prepared and maintained in accordance with FAR 1.603-3.
(b) Appointments shall be made at one of the four levels established
by the HHS Acquisition Certification Program. Therefore, the contracting
officer candidate must meet the minimum eligibility requirements of
certification for one of the four stated levels. The level will be
determined by the organizational need or position being refilled
(replacement). The four levels are as follows:
(1) Level I--Purchasing Agent. Mandatory for all personnel who have
signature authority for small purchases (GS-1102, 1105, and 1106),
including orders from GSA sources.
(2) Level II--Acquisition Official. Mandatory for those in the GS-
1102 series. Sufficient for delegation of contracting officer authority
to a maximum of $100,000.
(3) Level III--Senior Acquisition Official. Mandatory for those in
the GS-1102 series for delegation of contracting officer authority above
$100,000.
(4) Level IV--Acquisition Manager. Mandatory for preaward review and
approval authority as specified in HHSAR Subpart 304.71.
(c) Changes to contracting officer appointments, either increasing
or decreasing the warrant limitations, shall be made by the PORA.
Changes must be made from one of the four certification levels to
another, or within one of the certification levels, and must be
implemented by the PORA's issuance of a new SF 1402 to replace the
existing SF 1402.
(d) Personnel shall not ordinarily be appointed as contracting
officers if they do not meet the qualifications
[[Page 12]]
prescribed for one of the four certification levels. However, if it is
essential to appoint a contracting officer who does not fully meet the
certification qualifications, an interim appointment may be granted by
the PORA. The PORA shall require as a condition of the interim
appointment that all training or experience requirements be met within a
six month time period. Usually, interim appointments shall not exceed
six months. Failure to successfully complete the necessary training
requirements or gain the experience within this time frame will result
in termination of the appointment, unless the PORA determines that
unusual circumstances prevented the attainment of either. In this
instance, one additional six month interim appointment may be issued,
but no more shall be allowed. The PORA shall fully document all interim
appointment actions.
(e) The original SF 1402 shall be provided to the contracting
officer, and a copy shall be retained by the PORA. Another copy of the
SF 1402 along with the SF 171 material shall be forwarded to the
servicing personnel office for inclusion in the individual's personnel
file folder. Files on individuals should not be established by the PORA.
301.603-4 Termination.
Termination of contracting officer appointments shall be executed by
the PORA in accordance with FAR 1.603-4.
301.603-70 Delegation of contracting officer responsibilities.
(a) Non-GS/GM-1101 or 1102 or GS-1105 or 1106 personnel shall only
be delegated contracting officer responsibilities when determined
necessary by a warranted contracting officer (holder of a valid SF
1402), and in accordance with this subsection. Personnel, such as a
contracting officer's representative or an ordering officer, shall be
delegated only the needed responsibilities by the warranted contracting
officer in a written memorandum of delegation which clearly states any
limitations on the delegation. Personnel who are not in the GS/GM-1101
or 1102 or GS-1105 or 1106 job series shall not be issued a SF 1402,
Certificate of Appointment.
(b) Non-acquisition personnel who are delegated acquisition
responsibilities shall be required to have the training, experience, and
education requirements necessary for the responsibilities assigned. If,
for example, responsibility is to be delegated for making small
purchases, the training, education, and experience for Level I--
Purchasing Agent, or its equivalent as determined by the PORA, shall be
required.
301.670 Head of the contracting activity.
301.670-1 Responsibility.
The head of the contracting activity (HCA) is responsible for
conducting an effective and efficient acquisition program. Adequate
controls shall be established to assure compliance with applicable laws,
regulations, procedures, and the dictates of good management practices.
Periodic reviews shall be conducted by qualified personnel, preferably
assigned to positions other than in the contracting office being
reviewed, to determine the extent of adherence to prescribed policies
and regulations, and to detect a need for guidance and/or training.
301.670-2 Designation.
Each OPDIV head and PHS agency head has been designated as HCA along
with the following officials:
(a) Deputy Assistant Secretary for Management and Acquisition; and
(b) Each Regional Director.
[53 FR 15562, May 2, 1988, as amended at 54 FR 24342, June 7, 1989]
301.670-3 Redelegation.
(a) The heads of contracting activities may redelegate their HCA
authorities to the extent that redelegation is not prohibited by the
terms of their respective delegations of authority, by law, by the
Federal Acquisition Regulation, by the HHS Acquisition Regulation, or by
other regulations. However, HCA and other contracting approvals and
authorities shall not be redelegated below the levels specified in the
HHS Acquisition Regulation or, in the
[[Page 13]]
absence of coverage in the HHS Acquisition Regulation, the Federal
Acquisition Regulation. To ensure proper control of redelegated
acquisition authorities, HCA's shall maintain a file containing
successive delegations of HCA authority through and including the
contracting officer level.
(b) Personnel delegated responsibility for acquisition functions
must possess a level of experience, training, and ability commensurate
with the complexity and magnitude of the acquisition actions involved.
Subpart 301.7--Determinations and Findings
Source: 50 FR 23127, May 31, 1985 (interim rule) and 50 FR 38004,
Sept. 19, 1985 (final rule), unless otherwise noted.
301.703 Class determinations and findings.
(b) All class determinations and findings (D&F's) shall be limited
to a period of one year or less.
301.704 Content.
An example of a D&F format may be found in 316.301-3(c). All D&F's
shall be prepared using the referenced format and shall include the
information required by FAR 1.704(a)-(g).
PART 302--DEFINITIONS OF WORDS AND TERMS--Table of Contents
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 302.1--Definitions
302.100 Definitions of terms.
Chief of the contracting office (CCO) is a mid-level management
official in charge of a contracting office who controls and oversees the
daily contracting operation of an Operating Division (OPDIV) or major
component of an OPDIV. The CCO is subordinate to the principal official
responsible for acquisition and is located at a management level above
other contracting personnel, usually as a branch chief.
Head of the agency or agency head means the head of the Operating
Division (OPDIV) for HCFA, OHDS, PHS, and SSA, or the Assistant
Secretary for Management and Budget (ASMB) for the Office of the
Secretary (OS).
Head of the contracting activity (HCA)--see 301.670-2.
Principal official responsible for acquisition (PORA) is defined in
terms of certain organizational positions within the Office of
Management and Acquisition (OMAC-OS), Health Care Financing
Administration (HCFA), Office of Human Development Services (OHDS),
Office of the Assistant Secretary for Health (OASH), Alcohol, Drug
Abuse, and Mental Health Administration (ADAMHA), Centers for Disease
Control (CDC), Food and Drug Administration (FDA), Health Resources and
Services Administration (HRSA), Indian Health Service (IHS), National
Institutes of Health (NIH), Social Security Administration (SSA), and
the Regional Offices (RO's), as follows:
OMAC-OS--Director, Division of Contract Operations
HCFA--Director, Office of Acquisition and Grants, Office of Budget and
Administration
OHDS-- Director, Grants and Contracts Management Division, Office of
Management Services
OASH--Director, Division of Acquisitions Management, Administrative
Services Center, Office of Management
ADAMHA-- Director, Division of Grants and Contracts Management, Office
of the Administrator
CDC-- Director, Procurement and Grants Office, Office of the Center
Director
FDA-- Director, Division of Contracts and Grants Management, Office of
the Associate Commissioner for Management and Operations
HRSA-- Director, Division of Grants and Procurement Management, Office
of Management
IHS-- Director, Division of Contracts and Grants Policy, Office of
Administration and Management
NIH-- Director, Division of Contracts and Grants, Office of
Administration
SSA-- Associate Commissioner, Office of Acquisition and Grants
RO's-- Director, Regional Administrative Support Center
The PORA is subordinate to the head of the contracting activity and is
the official in charge of the major contracting operation activity
within the
[[Page 14]]
OPDIV, agency, staff office, or regional office.
[49 FR 13964, Apr. 9, 1984, as amended at 51 FR 23231, June 26, 1986; 51
FR 44293, Dec. 9, 1986; 52 FR 27558, July 22, 1987; 53 FR 43207, Oct.
26, 1988; 54 FR 24342, June 7, 1989; 55 FR 13536, Apr. 11, 1990; 56 FR
47002, Sept. 17, 1991]
PART 303--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST--Table of Contents
Subpart 303.1--Safeguards
Sec.
303.101 Standards of conduct.
303.101-3 Agency regulations.
303.104 Procurement integrity.
303.104-4 Definitions.
303.104-5 Disclosure of proprietary and source selection information.
303.104-6 Restrictions on Government officials, employees, and
consultants.
303.104-9 Certification requirements.
303.104-11 Processing violations or possible violations.
303.104-12 Ethics program training requirements.
Subpart 303.2--Contract Gratuities to Government Personnel
303.203 Reporting suspected violations of the Gratuities clause.
Subpart 303.3--Report of Suspected Antitrust Violations
303.303 Reporting suspected antitrust violations.
Subpart 303.4--Contingent Fees
303.408 Evaluation of the SF 119.
303.408-1 Responsibilities.
303.409 Misrepresentations or violations of the Covenant Against
Contingent Fees.
Subpart 303.5--Other Improper Business Practices
303.502 Subcontractor kickbacks.
Subpart 303.6--Contracts With Government Employees or Organizations
Owned or Controlled by Them
303.602 Exceptions.
Subpart 303.7--Voiding and Rescinding Contracts
303.704 Policy.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 49 FR 13964, Apr. 9, 1984, unless otherwise noted.
Subpart 303.1--Safeguards
Source: 54 FR 31528, July 31, 1989, unless otherwise noted.
303.101 Standards of conduct.
303.101-3 Agency regulations.
The Department of Health and Human Services' Standards of Conduct
are prescribed in Part 73 of Title 45.
303.104 Procurement integrity.
303.104-4 Definitions.
(h)(1) Procurement official means any individual who has
participated personally and substantially in the conduct of a
procurement. The following classes of employees may be considered
procurement officials depending on the circumstances prevailing in a
given case: contracting officers, contract specialists, contract
administrators, procurement agents, procurement clerks, cost/price
analysts, procurement analysts, clerical support and administrative
personnel, auditors, professional staff of the Division of Cost
Allocation, acquisition review and approval officials, contract
clearance staff, board of award members, supervisory procurement
officials, small and disadvantaged business utilization specialists,
project officers, project managers, program officials, officials who
provide special program clearances and approvals, program managers,
technical evaluation panelists, peer reviewers, source selection
evaluation board members, source selection advisory council members,
source selection authorities, finance officials, and procurement
lawyers. Concept peer reviewers are not considered to be procurement
officials when participating in project concept reviews pursuant to 42
CFR 52h.10(a). However, concept peer reviewers, or other peer reviewers,
who participate in a project approach review are procurement officials.
When there is a question whether an individual is a procurement
official, the activities of the individual should be analyzed by the
contracting officer to determine
[[Page 15]]
whether there is both personal and substantial involvement in a
procurement. If there is doubt in a particular case, the doubt should be
resolved by including the individual as a procurement official. The
contracting officer has the authority to decide who is or who is not a
procurement official in a particular case. The opinion of the Office of
the General Counsel (OGC) should be requested when the contracting
officer believes the situation is particularly complex or sensitive.
When the contracting officer's decision is disputed by the individual
whose status as a procurement official is in question, the matter will
be referred to the Principal Official Responsible for Acquisition (PORA)
for a final determination.
(k)(1) Source selection information includes ``derivative
documents'' which are documents containing references to or directly
citing or paraphrasing proprietary or source selection information.
303.104-5 Disclosure of proprietary and source selection information.
(a) The contracting officer or any other individual who prepares,
makes or controls proprietary, source selection information, or
derivative documents shall--
(1) Ensure documents are marked as prescribed in FAR 3.104-4 (j) and
(k);
(2) Provide physical security for documents in the office
environment during and after duty hours; and
(3) Ensure security of interoffice mailing of documents by using
opaque envelopes, double wrapping with more than one envelope, and
sealing of envelopes, as necessary.
(b) Individuals responsible for preparing derivative documents are
responsible for marking such documents in accordance with FAR 3.104-
5(b).
(c) Only the contracting officer has the authority to authorize
individuals, or classes of individuals, access to proprietary or source
selection information for each procurement except for paragraph (d) of
this section.
(d) The following classes of individuals are authorized blanket
access to only that source selection information developed before a
request for contract is sent to the contract office, or to later
modifications or supplements to such information--
(1) The generators of the requirements, including program,
scientific, and technical experts involved in the development of the
statements of work, specifications, evaluation plans, budget estimates,
or similar documents;
(2) Reviewing officials; and
(3) Supervisors in the management chain of the individuals listed in
paragraphs (d) (1) and (2) of this section. The contracting officer
shall include in the contract file names and functions of any other
individuals authorized access to proprietary or source selection
information.
303.104-6 Restrictions on Government officials, employees, and consultants.
(b) Procurement officials leaving the Department will be required to
complete the certification set forth in Chapter 1-90 of the General
Administration Manual if that official leaves the Department during the
conduct of a procurement expected to result in a contract or
modification in excess of $100,000. The administrative officer will
forward a copy of the certification to each responsible contracting
officer for incorporation into the contract file.
303.104-9 Certification requirements.
(c) The contracting officer shall include the contracting officer
certification in the contract file for each contract action over
$100,000. Including the certificate in the contract file shall be
considered notification to the head of the agency.
(e)(2) The waiver shall be submitted to the Office of Acquisition
and Grants Management in the Office of Management and Acquisition,
Office of Management and Budget in the Office of the Secretary for
review and approval before submission to the head of the agency.
303.104-11 Processing violations or possible violations.
(a)(1) The contracting officer determination that a reported
violation or possible violation of the statutory prohibitions has no
impact on the impending award or selection of a source must
[[Page 16]]
be submitted through channels, along with supporting documentation, to
the PORA for review and approval of the determination before award of a
contract.
(2) The contracting officer's determination that a reported
violation or possible violation of the statutory prohibitions has an
impact on the pending award or selection of a source must be referred
through channels, along with all related information available, to the
PORA (if the PORA is an SES) or to another SES official designated by
the OPDIV. That individual will--
(i) Refer the matter immediately to the Office of Acquisition and
Grants Management in the Office of Management and Acquisition, Office of
Management and Budget, Office of the Secretary for review, which office
may consult with the Office of the General Counsel and the Office of the
Inspector General, as appropriate; and
(ii) Determine the action to be taken on the procurement in
accordance with FAR 3.104-11 (c) and (d).
(b) The individual in paragraph (a)(2) of this section acts as the
agency head designee with respect to actions taken under the FAR clause
at 52.203-10, Remedies for Illegal or Improper Activity.
303.104-12 Ethics program training requirements.
(a) The Office of Acquisition and Grants Management in the Office of
Management and Acquisition (OAGM), Office of Management and Budget in
the Office of the Secretary is responsible for developing a training
module which can be used by the Department's OPDIVs and Regional offices
to train procurement officials. Upon receipt of the module, each OPDIV
and Regional Office must train the procurement officials set forth in
303.104-4(h)(1) before they can act as procurement officials.
(b) After the training has been completed, each procurement official
must sign the ``Procurement Official's Certificate of Procurement
Integrity'' before he/she can act as a procurement official on any
procurement. The certificate shall be submitted to the servicing
personnel office, where the certificate will be filed on the left side
of the employee's Official Personnel Folder. A copy of the certificate
shall be provided to the contract office which shall maintain a list of
the procurement officials who have signed the certificates.
(c) Procurement officials who serve multiple contracting offices
(such as procurement lawyers) shall submit copies of their certificates
to OAGM with the originals being transmitted to their servicing
personnel office. OAGM shall maintain a list of such procurement
officials and inform cognizant contracting officers upon telephonic
request whether particular individuals are included on the list.
Subpart 303.2--Contractor Gratuities to Government Personnel
303.203 Reporting suspected violations of the Gratuities clause.
Departmental personnel shall report suspected violations of the
Gratuities clause in accordance with subpart M, Reporting Violations, of
the Department's Standards of Conduct (45 CFR part 73) and General
Administration Manual Chapter 5-10, rather than as specified in FAR
3.203. Refer to subpart E, Gifts, Entertainment, and Favors, of 45 CFR
part 73 for an explanation regarding what is prohibited and what is
permitted.
Subpart 303.3--Report of Suspected Antitrust Violations
303.303 Reporting suspected antitrust violations.
A copy of each report of suspected antitrust violations submitted to
the Attorney General shall also be submitted to the Director, Office of
Acquisition and Grants Management.
[49 FR 13964, Apr. 9, 1984, as amended at 54 FR 24342, June 7, 1989]
Subpart 303.4--Contingent Fees
303.408 Evaluation of the SF 119.
303.408-1 Responsibilities.
(b) The chief of the contracting office shall perform the review
required by FAR 3.408-1(b) and should consult with the Office of General
Counsel, Business
[[Page 17]]
and Administrative Law Division, when deemed necessary.
303.409 Misrepresentations or violations of the Covenant Against Contingent Fees.
(a) Reports shall be made promptly to the contracting officer.
(b)(1)-(3) [Reserved]
(4) Suspected fraudulent or criminal matters to be reported to the
Department of Justice shall be prepared in letter format and forwarded
through acquisition channels to the head of the contracting activity for
signature. The letter must contain all pertinent facts and background
information considered by the contracting officer and chief of the
contracting office that led to the decision that fraudulent or criminal
matters may be present. A copy of the signed letter shall be sent to the
Director, Office of Acquisition and Grants Management.
[49 FR 13964, Apr. 9, 1984, as amended at 54 FR 24342, June 7, 1989]
Subpart 303.5--Other Improper Business Practices
303.502 Subcontractor kickbacks.
(b) Any known or suspected violations of the Anti-Kickback Act (41
U.S.C. 51-54) shall be reported to the contracting officer who shall
investigate the matter, document the findings, and report the results to
the chief of the contracting office. If the results substantiate the
known or suspected violation, the chief of the contracting office shall
notify the Office of General Counsel, Business and Administrative Law
Division and report the matter, through acquisition channels, to the
head of the contracting activity. The head of the contracting activity
shall take appropriate action is consonance with the Act, and notify the
Director, Office of Acquisition and Grants Management of the case and
its disposition.
[49 FR 13964, Apr. 9, 1984, as amended at 54 FR 24342, June 7, 1989]
Subpart 303.6--Contracts With Government Employees or Organizations
Owned or Controlled by Them
303.602 Exceptions.
Approval of an exception to the policy stated in FAR 3.601 shall be
made by the head of the OPDIV (Assistant Secretary for Management and
Budget in OS cases) or the Regional Director.
Subpart 303.7--Voiding and Rescinding Contracts
303.704 Policy.
For the purposes of implementing FAR subpart 3.7, the authorities
granted to the ``agency head or designee'' shall be exercised by the
principal official responsible for acquisition.
[51 FR 44293, Dec. 9, 1986]
PART 304--ADMINISTRATIVE MATTERS--Table of Contents
Subpart 304.1--Contract Execution
Sec.
304.101 Contracting officer's signature.
304.170 [Reserved]
Subpart 304.2--Contract Distribution
304.201 Procedures.
Subpart 304.6--Contract Reporting
304.602 Federal Procurement Data System.
Subpart 304.8--Contract Files
304.801 General.
304.804 Closeout of contract files.
304.804-1 Closeout by the office administering the contract.
304.870 Closing review.
Subpart 304.70--Acquisition Instrument Identification Numbering System
304.7000 Scope of subpart.
304.7001 Numbering contracts.
304.7002 Numbering solicitation documents.
304.7003 Numbering purchase and delivery orders.
304.7004 Numbering basic agreements.
[[Page 18]]
304.7005 Numbering basic ordering agreements.
Subpart 304.71--Review and Approval of Proposed Contract Awards
304.7100 Scope of subpart.
304.7101 Contracts requiring review and approval.
304.7102 Conduct of the review.
304.7103 Approvals.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 49 FR 13965, Apr. 9, 1984, unless otherwise noted.
Subpart 304.1--Contract Execution
304.101 Contracting officer's signature.
An original of each bilateral contract or modification shall be
executed by the contractor and contracting officer. An original of each
unilateral contract or modification shall be executed by the contracting
officer. The contracting officer need only sign the original when carbon
paper is used in sets of forms such as Standard Form 44 or Optional Form
347 or 348. A legible carbon impression of the contracting officer's
signature shall carry the same force and effect as a pen and ink
signature for unilateral contracts.
Sec. 304.170 [Reserved]
Subpart 304.2--Contract Distribution
304.201 Procedures.
The signed original of bilateral contracts and modifications shall
be placed in the contract file, and duplicate originals shall be
furnished the contractor, the appropriate accounting point, the project
officer, and other individuals or offices, as applicable. Purchase
orders, delivery orders, and other unilateral contracts and
modifications shall be distributed the same as bilateral contracts
except the original shall be furnished the contractor or seller. Copies
of unilateral contracts and modifications with carbon impressioned
signatures may be used but must be stamped ``DUPLICATE ORIGINAL'' (see
304.101).
[49 FR 36110, Sept. 14, 1984]
Subpart 304.6--Contract Reporting
304.602 Federal Procurement Data System.
The Department-wide Contract Information System (DCIS) represents
the Department's implementation of the FPDS. All departmental
contracting activities are required to participate in the DCIS and
follow the procedures stated in the Contract Information System Manual
and amendments to it. The principal official responsible for acquisition
shall ensure that all required contract information is collected,
submitted, and received into the DCIS on or before the 15th of each
month for all appropriate contract and contract modification awards of
the prior month.
[49 FR 13965, Apr. 9, 1984. Redesignated at 51 FR 44293, Dec. 9, 1986]
Subpart 304.8--Contract Files
304.801 General.
OPDIVs shall prescribe the contents of contract files and establish
filing procedures consistent with the nature of the contracting actions
and in accordance with FAR 4.801, 4.802, and 4.803. Contract files
should contain an index of the contents to facilitate review and should
be separated into logical categories (see FAR 4.803).
04.804 Closeout of contract files.
304.804-1 Closeout by the office administering the contract.
(3) Files for all cost-reimbursement type contracts should be closed
within 20 months of the month in which the contracting officer receives
evidence of physical completion (see FAR 4.804-4). The contracting
officer responsible for contract closeout may negotiate settlement of
indirect costs for a specific contract, in advance of the determination
of final indirect cost rates in accordance with FAR 42.708.
304.870 Closing review.
(a) Contracting officers shall assure the applicable items in FAR
4.804-5,
[[Page 19]]
other than a field audit, have been accomplished prior to closing any
physically completed contract. Cost-reimbursement type contracts will be
subject to the additional requirements set forth below before they may
be closed.
(b) Contracting officers shall use the instructions in the October
5, 1982 memorandum from the Deputy Assistant Secretary for Procurement,
Assistance and Logistics to closeout cost-reimbursement type contracts
physically completed prior to fiscal year 1977 and cost-reimbursement
type contracts completed subsequent to that date for which field audit
information is available.
(c) Contracting officers shall closeout all other cost-reimbursement
type contracts physically completed after September 30, 1977 in
accordance with the following procedures:
(1) Field audits will be conducted for contracts in excess of
$500,000 awarded to commercial organizations and non-profit
organizations other than colleges and universities, hospitals and State
and local units of government for which an agency other than HHS has
audit cognizance. Field audits will also be conducted each year on
approximately 25 of the same type contractors for which HHS has audit
cognizance. These contracts may be closed after receipt of the field
audit report.
(2) Contracts of any dollar value with non-proprietary colleges and
universities, hospitals and State and local units of government and
contracts not in excess of $500,000 with other institutions/
organizations shall be closed out on the basis of a desk audit. The desk
audit should include (i) a confirmation from the project officer that
labor, material, travel, and other types of direct costs are
commensurate with contract requirements, (ii) a review of available
audit reports to determine if any adjustments were made that may be
applicable to the contract under review, and (iii) discussions with the
cognizant government auditor when considered appropriate. These
contracts shall be closed with the condition that they are subject to
adjustment should an on-site audit be conducted at a later date and
should unallowable costs be identified as a result of that audit. The
release executed by the contractor shall contain the following:
The Contractor agrees, pursuant to the clause in this contract
entitled Allowable Cost (for cost-reimbursement contracts) or Allowable
Cost and Fixed Fee (for CPFF contracts), that the amount of any
sustained audit exceptions resulting from any audit made after final
payment will be refunded to the Government.
(3) The contracting officer may request a field audit of any
contract when, in his/her judgment, the risk attendant with the contract
warrants it. The contracting officer, however, shall exercise discretion
in requesting such audits on creditable evidence such as unsatisfactory
dealings with the contractor during the period of contract performance,
prior audit reports containing serious findings against the contractor,
the known experience of other government officials in dealing with the
contractor when the contracting officer is personally knowledgeable
about the circumstances, formal third party complaints or allegations
which bear upon the contractor's integrity or the propriety of costs
charged to the Government, and other comparable allegations or advice of
a derogatory nature about the contractor made by responsible individuals
which in the contracting officer's judgment should be investigated.
Except where a contracting officer suspects misrepresentation or fraud,
audits should not be requested if their cost of performance is likely to
exceed their potential cost recovery.
(4) When an audit is warranted prior to closing out a contract, the
contracting officer should request the audit directly from the
Department of Health and Human Services Office of the Inspector General,
Office of Audits (HHSOA). The request should cite the reasons the
contracting officer believes an audit is warranted. A copy of the
request should be forwarded to the Director, Office of Acquisition and
Grants Management (DOAGM). In the event the Office of the Inspector
General cannot honor the request in a reasonable period of time, it will
consult with DOAGM and the contracting officer. The final decision on
the need and scope of an audit will be made on the basis of the value of
the contract, the
[[Page 20]]
nature of the contracting officer's concerns, and the availability of
HHSOA or other existing resources in the Department to perform a review
to satisfy the contracting officer's concerns.
(5) Closeout procedures are to be followed in conjunction with the
regular procedures now followed in administering contracts. These
procedures are not meant or to be interpreted as imposing any
requirement or responsibility on contracting officers or necessitating
any reviews on the part of the contracting officials not currently
required by the FAR. With some rare exceptions, Standard Form 1034,
Public Voucher for Purchases and Services Other than Personal, will
contain sufficient information to allow a contracting officer to satisfy
requirements for desk audits. Accordingly, these closeout procedures
shall not cause contracting officers to engage in extraordinary
oversight or review and shall not be used by contracting officers as the
basis for requiring contractors to submit extraordinary documentation
such as payroll listing, labor billings, travel details, etc.
[49 FR 13965, Apr. 9, 1984, as amended at 54 FR 24342, June 7, 1989; 54
FR 43965, Oct. 30, 1989; 56 FR 47002, Sept. 17, 1991]
Subpart 304.70--Acquisition Instrument Identification Numbering System
304.7000 Scope of subpart.
This subpart prescribes policy and procedures for assigning
identifying numbers to contracts and related instruments, including
solicitation documents, purchase orders, and delivery orders.
304.7001 Numbering contracts.
(a) Contracts which require numbering. The following contracts shall
be numbered in accordance with the system prescribed in paragraph (b) of
this section:
(1) All contracts, including letter contracts and task orders under
basic ordering agreements, which involve the payment of $2,500 or more
for the acquisition of personal property or nonpersonal services.
(2) All contracts which involve the payment of $2,000 or more for
construction (including renovation or alteration).
(3) All contracts which involve more than one payment regardless of
amount.
(The number assigned to a letter contract shall be assigned to the
superseding definitized contract.)
(b) Numbering system. All contracts which require numbering shall be
assigned a number consisting of the following:
(1) The three digit code assigned to the contracting office by the
Office of Financial Operations, Office of Finance.
(2) A two digit fiscal year designation; and
(3) A four digit serial number. While it is required that a
different series of four digit serial numbers be used for each fiscal
year, serial numbers assigned need not be sequential.
(c) Illustration of contract numbers. The initial contract executed
by the Division of Contract Operations, Office of the Secretary, for
fiscal year 1983 should be numbered 100-83-0001, the second contract
100-83-0002. Alternatively, if it is desirable for internal
identification purposes to establish separate series of numbers for
sealed bid and negotiated contracts, this procedure is permissible. In
this instance, the initial sealed bid contract might be numbered 100-83-
0001 and the initial negotiated contract numbered 100-83-0500.
(d) Assignment of identification codes. Each contracting office of
the Department shall be assigned a three digit identification code by
the Office of Financial Operations. Requests for the assignment of such
codes for newly established contracting offices shall be submitted by
the headquarters acquisition staff office of the contracting activity to
the Director, Office of Financial Operations. Conversely, in the event
that a contracting office is to be disestablished, the Director, Office
of Financial Operations shall be notified.
[[Page 21]]
A listing of the contracting office identification codes currently in
use is contained in the Department-wide Contract Information System
Manual (DCIS).
[49 FR 13961, Apr. 9, 1984, as amended at 50 FR 23126, May 31, 1985; 50
FR 38004, Sept. 19, 1985; 54 FR 24342, June 7, 1989]
304.7002 Numbering solicitation documents.
Requests for proposals and invitations for bids shall be numbered in
accordance with procedures prescribed by the headquarters staff office
of the contracting activity.
304.7003 Numbering purchase and delivery orders.
Contracting offices shall establish procedures for numbering
purchase orders as required for effective identification and control.
304.7004 Numbering basic agreements.
Basic agreements shall be numbered in accordance with procedures
prescribed by the headquarters staff office of the cognizant contracting
activity. However, individual contracts entered into pursuant to the
terms and conditions of a basic agreement shall be numbered in
accordance with 304.7001(b).
304.7005 Numbering basic ordering agreements.
Basic ordering agreements shall be numbered in accordance with
procedures prescribed by the headquarters staff office of the
contracting activity.
[49 FR 13965, Apr. 9, 1984, as amended at 53 FR 15563, May 2, 1988]
Subpart 304.71--Review and Approval of Proposed Contract Awards
304.7100 Scope of subpart.
This subpart prescribes review and approval procedures for contract
actions to ensure that:
(a) Contract awards are in conformance with law, established
policies and procedures, and sound business practices;
(b) Contractual documents properly reflect the mutual understanding
of the parties; and
(c) The contracting officer is informed of deficiencies and items of
questionable acceptability and corrective action is taken.
304.7101 Contracts requiring review and approval.
(a) General. All contractual documents, regardless of dollar value,
are to be reviewed by the contracting officer prior to award, even if
the review and approval procedures prescribed in this section are
applicable. However, under no circumstances may the individual who signs
a contract instrument as contracting officer perform final review and
approval of that contract action if it, or any modification to it, is
expected to exceed the levels set forth in (b) (1) or (2) below.
(b) Required reviews and approvals. (1) Officials responsible for
the acquisition function in the Office of the Secretary, OPDIVs (except
the Public Health Service), and regional offices are to assure that
sealed bid or negotiated contracts, and/or modifications to them,
expected to exceed $300,000, are reviewed and approved prior to award.
In order to assure the propriety of smaller dollar acquisitions, a
statistically significant sample of contract actions not expected to
exceed $300,000 are to be reviewed and approved prior to award.
(2) Contract actions of the Public Health Service are to be reviewed
and approved prior to award in accordance with the dollar thresholds
stated in Subpart PHS 304.71. In order to assure the propriety of
smaller dollar acquisitions, a statistically significant sample of
contract actions not expected to exceed those dollar thresholds
referenced in Subpart PHS 304.71 are to be reviewed and approved prior
to award.
(c) Reviewing officials. Officials assigned responsibility for
review and approval of contract actions must possess qualifications in
the field of acquisition commensurate with the level of review
performed, and, as a minimum, possess those acquisition skills expected
of a contracting officer. The following officials are responsible for
preaward contract review and approval:
Office of the Secretary--
[[Page 22]]
Director, Division of Contract and Grant Operations
Director, Division of Contract Operations, Office of Administrative
and Management Services
Office of Human Development Services--Director, Grants and Contracts
Management Division
Social Security Administration--Director, Office of Acquisition and
Grants (may be redelegated to the appropriate division direction within
the Office of Acquisition and Grants)
Health Care Financing Administration--Director, Division of Procurement
Services.
Public Health Service--The reviewing official is designated in Subpart
PHS 304.71, as approved by the Director, Office of Procurement and
Logistics Policy, OPAL.
However, if any of the officials are to serve as the contracting officer
and sign the contractual document, the review and approval function
shall be performed by an appropriate official at least one level above.
(d) Regional offices. The Director, Regional Administrative Support
Center (RASC) is responsible for review and approval of contracts, or
modifications to them, expected to exceed $300,000 and executed by the
regional office's contracting staff. The RASC may obtain the advice of
the Regional Attorney in the review of proposed contract awards.
[49 FR 13961, Apr. 9, 1984, as amended at 50 FR 23127, May 31, 1985; 50
FR 38004, Sept. 19, 1985; 51 FR 44293, Dec. 9, 1986; 52 FR 27558, July
22, 1987; 54 FR 24343, June 7, 1989]
304.7102 Conduct of the review.
(a) General. Reviewing officials may solicit the participation of
specialists in various technical and administrative disciplines to aid
in the review. The method of the review is not prescribed here in order
to permit discretionary judgment in determining the depth to which
significant areas are to be examined.
(b) Contract file. The reviewer is to: (1) Determine that the
contract file constitutes an independent record, documented to provide a
complete chronology of actions related to all aspects of the
acquisition, and that the documentation is consistent with the
requirements of FAR 4.803;
(2) Determine that each contract file contains documentation or
other data (i.e., technical and business management evaluation, cost
advisory and audit reports, negotiation memorandum, etc.) sufficient to
explain and support the rationales, judgments, and authorities upon
which all decisions and actions were predicated; and
(3) Ascertain:
(i) If the proposed acquisition action is to be awarded by other
than full and open competition, that the documentation and approvals
supporting the decision are present in the contract file;
(ii) That proper publicizing of the proposed acquisition was made
pursuant to FAR Part 5;
(iii) That approval was obtained for any deviation from prescribed
contract clauses;
(iv) That sufficient competition was obtained, the competitive range
was appropriately determined, and oral or written discussions were
conducted with all firms in the competitive range;
(v) That all the rules set forth in FAR Part 14 were complied with
when the proposed award is a result of an IFB; and
(vi) That appropriate determinations and findings which justify the
type of contract and advance payments are a part of the contract file.
[49 FR 13961, Apr. 9, 1984, as amended at 50 FR 23127, May 31, 1985; 50
FR 38004, Sept. 19, 1985]
304.7103 Approvals.
(a) Awards are not to be made until approval is granted by the
reviewing official identified in 304.7101. All approvals are to be in
writing, except that when time is of the essence approval may be given
orally and subsequently confirmed in writing.
(b) The reviewing official shall not approve a proposed contract
award if a substantive issue (or issues) remains to be resolved.
However, in appropriate circumstances, the reviewing official may use
discretion and grant approval on a conditional basis and require the
contracting officer to submit follow-up written documentation that the
substantive issue has been resolved. This provides the reviewing
official the option to require the contracting officer to resolve the
substantive issue and submit documenting evidence before award approval
is given, or to grant
[[Page 23]]
conditional approval providing the substantive issue is resolved before
the contract is awarded and require the contracting officer to submit
documenting evidence either before or after the award. The reviewing
official also has the option to determine the extent of documentation
evidence to be submitted by the contracting officer. This may range from
complete resubmission of the contract file to submission of a memorandum
stating the contracting officer's actions in resolving the substantive
issue.
[[Page 24]]
SUBCHAPTER B--ACQUISITION PLANNING
PART 305--PUBLICIZING CONTRACT ACTIONS--Table of Contents
Subpart 305.1--Dissemination of Information
Sec.
305.102 [Reserved]
Subpart 305.2--Synopsis of Proposed Contract Actions
305.202 Exceptions.
Subpart 305.3--Synopses of Contract Awards
305.303 Announcement of contract awards.
Subpart 305.5--Paid Advertisements
305.502 Authority.
305.503 Procedures.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 49 FR 13969, Apr. 9, 1984, unless otherwise noted.
Subpart 305.1--Dissemination of Information
Sec. 305.102 [Reserved]
Subpart 305.2--Synopsis of Proposed Contract Actions
305.202 Exceptions.
(b) When a contracting office believes that it has a situation where
advance notice is not appropriate or reasonable, it shall prepare a
memorandum citing all pertinent facts and details and send it, through
normal acquisition channels, to the Director, Office of Acquisition and
Grants Management (DOAGM) requesting relief from synopsizing. The DOAGM
shall review the request and decide whether an exception to synopsizing
is appropriate or reasonable. If it is, the DOAGM shall take the
necessary coordinating actions required by FAR 5.202(b). Whatever the
decision is on the request, the DOAGM shall promptly notify the
contracting office when a determination has been made.
[51 FR 44293, Dec. 9, 1986, as amended at 54 FR 24343, June 7, 1989]
Subpart 305.3--Synopses of Contract Awards
305.303 Announcement of contract awards.
(a) Public announcement. Any contract, contract modification, or
delivery order in the amount of $1 million or more shall be reported by
the contracting officer to the Office of the Deputy Assistant Secretary
for Legislation (Congressional Liaison), Room 406G, Hubert H. Humphrey
Building. Notification shall be accomplished by providing a copy of the
contract or award document face page to the referenced office prior to
the day of award, or in sufficient time to allow for an announcement to
be made by 5 p.m. Washington, DC time on the day of award.
[53 FR 43207, Oct. 26, 1988, as amended at 57 FR 11689, April 7, 1992]
Subpart 305.5--Paid Advertisements
305.502 Authority.
The contracting officer is authorized to publish advertisements,
notices, and contract proposals in newspapers and periodicals in
accordance with the requirements and conditions referenced in FAR
Subpart 5.5.
305.503 Procedures.
Requests for acquisition of advertising shall be accompanied by
written authority to advertise or publish which sets forth justification
and includes the names of newspapers or journals concerned, frequency
and dates of proposed advertisements, estimated cost, and other
pertinent information. Paid advertisements shall be limited to the
publication of essential details of grant announcements, invitations for
bids, and requests for proposals, including those for the sale of
personal property, and for the recruitment of employees.
[[Page 25]]
PART 306--COMPETITION REQUIREMENTS--Table of Contents
Subpart 306.2--Full and Open Competition After Exclusion of Sources
Sec.
306.202 Establishing or maintaining alternative sources.
Subpart 306.3--Other Than Full and Open Competition
306.302 Circumstances permitting other than full and open competition.
306.302-1 Only one responsible source and no other supplies or services
will satisfy agency requirements.
306.302-7 Public interest.
306.303 Justifications.
306.303-1 Requirements.
306.303-2 Content.
306.304 Approval of the justification.
Subpart 306.4--Sealed Bidding and Competitive Proposals
306.401 Sealed bidding and competitive proposals.
Subpart 306.5--Competition Advocates
306.501 Requirement.
306.502 Duties and responsibilities.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 50 FR 23127, May 31, 1985, unless otherwise noted.
Subpart 306.2--Full and Open Competition After Exclusion of Sources
306.202 Establishing or maintaining alternative sources.
(a) The reference to the agency head in FAR 6.202(a) shall mean the
appropriate competition advocate cited in 306.501.
(b)(1) The required determination and findings (D&F) shall be
prepared by the contracting officer based on the data provided by
program personnel, and shall be signed by the appropriate competition
advocate. The D&F signatory authority is not delegable.
[50 FR 23127, May 31, 1985, and 50 FR 38004, Sept. 19, 1985, as amended
at 51 FR 44293, Dec. 9, 1986]
Subpart 306.3--Other Than Full and Open Competition
306.302 Circumstances permitting other than full and open competition.
306.302-1 Only one responsible source and no other supplies or services will satisfy agency requirements.
(a) Authority. (2)(ii) Follow-on contracts for the continuation of
major research and development studies on long-term social and health
programs, major research studies, or clinical trails may be deemed to be
available only from the original source when it is likely that award to
any other source would result in unacceptable delays in fulfilling the
Department's or OPDIV's requirements.
(b) Application. (4) When the OPDIV head has determined that a
specific item of technical equipment or parts must be obtained to meet
an activity's program responsibility to test and evaluate certain kinds
and types of products, and only one source is available. (This criterion
is limited to testing and evaluation purposes only and may not be used
for initial outfitting or repetitive acquisitions. Project officers
should support the use of this criterion with citations from their
agency's legislation and the technical rationale for the item of
equipment required.)
(c) Application for brand name descriptions. There is existing
equipment which, for reasons of compatibility and interchangeability,
requires an item which is manufactured only by one source. (This
criterion is for use in acquisitions where a particular brand name item
is required, and an ``or equal'' will not meet the Government's
requirements. This criterion may not be used when there are other
manufacturers available which may be able to produce acceptable items
even though their products might require some adjustments and
modifications. These other manufacturers must be given the opportunity
to compete.)
[50 FR 23127, May 31, 1985, and 50 FR 38004, Sept. 19, 1985, as amended
at 51 FR 44293, Dec. 9, 1986; 57 FR 11689, Apr. 7, 1992]
[[Page 26]]
306.302-7 Public interest.
(a) Authority. (2) Agency head, in this instance, means the
Secretary.
(c) Limitations. When using the authority cited in FAR 6.302-
7(a)(1), the Secretary's approval must be obtained. Therefore, an
``approval package'' must be prepared and staffed through departmental
acquisition channels to the Secretary. The package shall include:
(1) A determination and findings, prepared by the contracting
officer, for the Secretary to sign.
(2) A letter for the Secretary to sign notifying Congress of the
determination to award a contract under the authority of 41 U.S.C.
253(c)(7). This letter must be received by Congress at least 30 days
before contract award.
(3) A ``Justification for Other than Full and Open Competition''
(JOFOC).
(4) A briefing paper presenting background, need, etc.
(5) Any other pertinent papers or documents required by the
Department.
306.303 Justifications.
306.303-1 Requirements.
(b) Preliminary arrangements or agreements with the proposed
contractor made by someone other than the contracting officer shall have
no effect on the rationale used to support an acquisition for other than
full and open competition.
(f) The program office should discuss prospective other than full
and open competition requests with their supporting contracting office
as early as possible during the acquisition planning stage (see FAR
Subpart 7.1 and Subpart 307.1), and before submitting the requisition or
request for contract. The discussions may resolve uncertainties, provide
program offices with names of other sources, allow proper scheduling of
the acquisition, and avoid delays which might otherwise occur should it
be determined that the request for other than full and open competition
is not justified.
(g) When a program office desires to obtain certain goods or
services by contract without full and open competition, it shall, at the
time of forwarding the requisition or request for contract, furnish the
contracting office a justification explaining why full and open
competition is not feasible. All justifications shall be initially
reviewed by the contracting officer.
(1) Justifications in excess of the small purchase limitation shall
be in the form of a separate, self-contained document, prepared in
accordance with FAR 6.303 and 306.303, and called a ``JOFOC''
(Justification for Other than Full and Open Competition). Justifications
of $25,000 or less may be in the form of a paragraph or paragraphs
contained in the requisition or request for contract.
(2) Justifications, whether over or under the small purchase
limitation, shall fully describe what is to be acquired, offer reasons
which go beyond inconvenience, and explain why it is not feasible to
obtain competition. The justifications shall be supported by verifiable
facts rather than mere opinions. Documentation in the justifications
should be sufficient to permit an individual with technical competence
in the area to follow the rationale.
[50 FR 23127, May 31, 1985, as amended at 57 FR 11689, Apr. 7, 1992]
306.303-2 Content.
(a)(1) The program office and name, address, and telephone number of
the project officer shall also be included.
(2) This item shall include project identification such as the
authorizing program legislation, to include citations or other internal
program identification data such as title, contract number, etc.
(3) A full description of the requirement and its dollar amount is
to be included. It may be in the form of a statement of work, purchase
description, or specification. A statement is to be included to explain
whether the acquisition is an entity in itself, whether it is one in a
series, or part of a related group of acquisitions.
(c) Each JOFOC shall conclude with at least the following signatory
lines (other concurrence lines may be added as deemed necessary by the
contracting activity):
Recommended, Project Officer___________________________________________
Date___________________________________________________________________
Concur, Project Officer's Immediate Supervisor_________________________
Date___________________________________________________________________
Concur, Contracting Officer____________________________________________
[[Page 27]]
Date___________________________________________________________________
Approved, Approving Official___________________________________________
Date___________________________________________________________________
306.304 Approval of the justification.
(a)(1) For purchases in excess of 10 percent of the small purchase
limitation but not over the small purchase limitation, the contracting
officer is authorized to review and approve (or disapprove) the
justification (see 313.106(c)(2)). For acquisitions over the small
purchase limitation, but not exceeding $100,000, the JOFOC shall be
submitted to the contracting officer for review. The contracting officer
will either concur or nonconcur, and forward the JOFOC to the principal
official responsible for acquisition for approval. (When the contracting
officer and principal official responsible for acquisition are the same
individual, the approval will be made by the respective official listed
in 306.501.) The principal official responsible for acquisition may
redelegate approval for acquisitions between the small purchase
limitation and $50,000 to the chief of the contracting office, provided
that individual is at least one level above the contracting officer who
will sign the contract.
(2) The competition advocates are listed in 306.501.
(3) The following shall serve as the approving officials referenced
in FAR 6.304(a)(3):
HCFA--Administrator for Health Care Financing
OHDS--Assistant Secretary for Human Development Services
OS--Assistant Secretary for Management and Budget
PHS--Assistant Secretary for Health (may be delegated to the Deputy
Assistant Secretary for Health Operations)
SSA--Commissioner of Social Security
RO's--Regional Director
This authority is not delegable, except as indicated for PHS.
(4) The senior procurement executive of the Department is the
Assistant Secretary for Management and Budget.
(c) A class justification shall be processed the same as an
individual justification.
(d) The contracting officer who receives a JOFOC for processing
shall, after ascertaining that the document is complete, request advice
from pricing, audit, legal, and other appropriate staff offices, and
forward the JOFOC with his or her concurrence or nonconcurrence, to the
appropriate approving official. When the contracting officer does not
concur with the JOFOC, a written explanation setting forth the reasons
must be provided the approving official. If the JOFOC is disapproved by
the approving official, the contracting officer shall promptly notify
the concerned program office.
(e) It is the responsibility of the approving official to determine
whether a contract may properly be awarded without full and open
competition. The program office and project officer are responsible for
furnishing the contracting officer and approving official with pertinent
supporting information necessary to make such determinations. Other
staff offices shall advise the contracting officer and approving
official as requested.
(f) As each justification is reviewed, the approving official should
ask: why the acquisition cannot be competed, are there sufficient
grounds for excluding all other actual or potential sources, what
actions can be taken to obtain full and open competition in the instant
acquisition, and what actions are needed to avoid the need for a
subsequent or continuing acquisition that is for other than full and
open competition?
[50 FR 23127, May 31, 1985, as amended at 56 FR 47002, Sept. 17, 1991]
Subpart 306.4--Sealed Bidding and Competitive Proposals
306.401 Sealed bidding and competitive proposals.
The requirement in FAR 6.401 to document the reasons sealed bidding
is not appropriate may be accomplished by adding a sentence to the
negotiation memorandum (see 315.672) specifying which criterion (or
criteria) listed in FAR 6.401(a) is (are) not applicable to the
acquisition.
Subpart 306.5--Competition Advocates
306.501 Requirement.
The Department's competition advocate is the Deputy Assistant
Secretary
[[Page 28]]
for Management and Acquisition. The competition advocates for the
Department's primary contracting offices are as follows:
HCFA--Associate Administrator for Management and Support Services
OHDS--Director, Office of Management Services
OS--Director, Office of Acquisition and Grants Management
OASH--Director, Administrative Services Center
ADAMHA--Associate Administrator for Management
AHCPR--Executive Officer, Agency for Health Care Policy and Research
CDC--Director, Office of Program Support
FDA--Associate Commissioner for Management and Operations
HRSA--Associate Administrator for Operations and Management
IHS--Associate Director, Office of Administration and Management
NIH--(R&D)--Associate Director for Extramural Affairs (Other than R&D)--
Associate Director for Intramural Affairs
SSA--Deputy Commissioner for Management.
RO's--Director, Regional Administrative Support Center
[50 FR 23127, May 31, 1985, and 50 FR 38004, Sept. 19, 1985, as amended
at 52 FR 27558, July 22, 1987; 53 FR 15563, May 2, 1988; 53 FR 43207,
Oct. 26, 1988; 54 FR 24343, June 7, 1989; 55 FR 42197, Oct. 18, 1990]
306.502 Duties and responsibilities.
(b) The competition advocates listed in 306.501 shall assist the
Department's competition advocate, when requested, by providing data and
reports to aid in the accomplishment of the duties required of the
Department's competition advocate as stated in FAR 6.502(a).
[50 FR 23127, May 31, 1985, as amended at 50 FR 38004, Sept. 19, 1985]
PART 307--ACQUISITION PLANNING--Table of Contents
Subpart 307.1--Acquisition Plans
Sec.
307.104 General procedures.
307.104-1 Requirement for acquisition planning.
307.104-2 Responsibilities for acquisition planning.
307.104-3 Preparation of acquisition plan.
307.105 Contents of written acquisition plans.
307.105-1 Format and content.
307.105-2 Special program clearances or approvals.
307.105-3 Specification, purchase description, and statement of work.
307.170 Program training requirements.
307.170-1 Policy exceptions.
307.170-2 Training course prerequisites.
Subpart 307.3--Contractor Versus Government Performance
307.302 General.
307.303 Determining availability of private commercial sources.
307.304 Procedures.
307.307 Appeals.
Subpart 307.70--Considerations in Selecting an Award Instrument
307.7000 Scope of subpart.
307.7001 Applicability.
307.7002 Purpose.
307.7003 Distinction between acquisition and assistance.
307.7004 Procedures.
Subpart 307.71--Phase II Advance Acquisition Planning (Scheduling)
307.7101 Background.
307.7102 Accountability and responsibility.
307.7103 Purpose.
307.7104 Contracting activity actions.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 49 FR 13969, Apr. 9, 1984, unless otherwise noted.
Subpart 307.1--Acquisition Plans
307.104 General procedures.
(a) The acquisition planning document is an administrative tool
designed to enable the contracting officer and project officer to plan
effectively for the accomplishment of an acquisition during a specified
time frame. The acquisition planning document serves as an outline of
the method by which the contracting officer expects to accomplish the
acquisition task.
(c) If the plan proposes using other than full and open competition,
the plan shall also be coordinated with the Chief of the contracting
office, acting for the competition advocate.
[49 FR 13969, Apr. 9, 1984, as amended at 50 FR 23129, May 31, 1985; 50
FR 38004, Sept. 19, 1985; 51 FR 44293, Dec. 9, 1986]
[[Page 29]]
307.104-1 Requirement for acquisition planning.
(a) The acquisition planning document is required for all new
negotiated acquisitions which are expected to exceed $100,000, except
the following:
(1) Acquisition of architect-engineer services;
(2) Acquisitions of utility services where the services are
available from only one source; and
(3) Acquisitions made from or through other Government agencies.
(b) An acquisition planning document is also required for all two-
step sealed bid acquisitions expected to exceed $100,000.
(c) The principal official responsible for acquisition shall
prescribe acquisition planning procedures for:
(1) Negotiated acquisitions which are not expected to exceed
$100,000;
(2) Two-step sealed bid acquisitions which are not expected to
exceed $100,000; and
(3) All other sealed bid acquisitions regardless of dollar amount.
(d) An acquisition planning document is not required for a contract
modification which either exercises an option or adds funds to an
incrementally funded contract, provided there is an approved acquisition
planning document in accordance with 307.105 and there is no significant
deviation from that plan.
[49 FR 13969, Apr. 9, 1984, as amended at 50 FR 23126, May 31, 1985; 50
FR 38004, Sept. 19, 1985]
307.104-2 Responsibilities for acquisition planning.
(a) Planning by program and staff activities. Whenever execution of
a program or project requires the acquisition of property or services by
contract, the program or project plan shall delineate all elements to be
acquired by contract. The program or project plans must include a plan
and time-frame for completion action.
(b) Planning for acquisition actions. Action should commence as
early as possible to effect an orderly and balanced acquisition workload
throughout a fiscal year. Project officers who expect to initiate
acquisitions are required to discuss their requirements with the
contracting officials who will be responsible for these acquisitions to
compare current staff capabilities with anticipated requirements to
achieve an even distribution of fiscal year workload consistent with
program needs. These discussions should result in understandings on:
(1) The details of the acquisition plan;
(2) Schedule for the completion of the acquisition plan;
(3) Preliminary discussions on the work statement/specifications and
appropriate evaluation criteria; and
(4) Preliminary discussions on the content and timing of the request
for contract (RFC).
(c) Planning by contracting activities. Contracting activities are
required to coordinate with program and staff offices to ensure:
(1) Timely and comprehensive planning for acquisitions;
(2) Timely initiation of requests for contracts; and
(3) Instruction of program and staff offices in proper acquisition
practices and methods.
307.104-3 Preparation of acquisition plan.
(a) The acquisition planning document serves as an advance agreement
between program and contracting personnel by outlining the methods of
how and when the acquisition is to be accomplished. It serves to resolve
problems early in the acquisition cycle thereby precluding delays in
contract placement. It is developed prior to the preparation and
submission of the formal request for contract to the contracting
activity. (For detailed information concerning the request for contract,
see Subpart 315.70.)
(b) The acquisition planning document shall be prepared jointly by
the project officer and the contract negotiator or in accordance with
procedures prescribed by the principal official responsible for
acquisition.
307.105 Contents of written acquisition plans.
307.105-1 Format and content.
The Department does not prescribe a standard format for the
acquisition planning document, but recommends the use of a format
similar to what is
[[Page 30]]
provided in this section. The subject areas addressed in paragraphs (a)
through (e) must be included in every acquisition planning document. An
OPDIV, agency, or regional office contracting activity may prescribe a
standard format for the acquisition planning document and may include
additional subject areas that are pertinent to that activity's needs.
(a) Identification information. The contracting activity shall
prescribe the information necessary for readily identifying a planned
acquisition. The information may include items such as acquisition
planning document number, request for contract number, public law,
program or project officer, etc.
(b) Programmatic considerations. (1) Description of the project/
supplies/services. Include a brief description of the proposed project/
supplies/services. Discuss all anticipated future requirements related
to the acquisition. Discuss any past, present or future interrelated
projects.
(2) Project funding. Include the summary of funds expected to be
obligated for the entire project by fiscal years and phases. Include
expenditures for previous years. Discuss the probability of obtaining
future years funding and/or what specific managerial action can be taken
to insure future funding (if applicable).
(3) Background and acquisition history. Provide a brief factual
summary of the technical and contractual history of the supplies/
services being acquired.
(4) Related projects, efforts undertaken to avoid duplication of
effort. Discuss efforts made to determine if existing projects, supplies
or materials will satisfy the requirement. Include any related in-house
efforts, searches, and clearinghouse reviews made to avoid duplication
of effort.
(5) Need for project/supplies/services. Discuss rationale for
deciding on the need for the project/supplies/services.
(6) Special program clearances or approvals. Review 307.105-2 to
determine which special program clearances or approvals are required.
Specify clearances or approvals applicable to this acquisition.
(7) Phasing. Briefly describe discrete tasks or stages of
accomplishment which could be susceptible to phasing. Describe criteria
for evaluation of performance of each phase before proceeding to the
next. (See 307.105-3(c)(3) for a discussion on phasing.)
(8) Government furnished material/facilities. Indicate material and
facilities that will be furnished to the contractor and any associated
problems which may be encountered. Discuss possible inequities which may
arise in furnishing the materials or facilities. Discuss screening
efforts for availability through GSA excess property schedules.
(9) Discussion of project risk. Provide a discussion of major areas
of project risk including technical, cost, and schedule risk. Describe
what efforts are planned to reduce risk. If an acquisition, which is
planned to be awarded using other than full and open competition
represents a significant portion of a proposed contractor's business,
discuss the impact on technical capability, realism of schedule, changes
in contractor workload and related cost impact.
(10) Reporting/delivery requirements. Describe the basis for
establishing the delivery/reporting requirements and include the
anticipated deliverables and time(s) for delivery.
(11) Replication, dissemination, or use of the results. Discuss
anticipated replication, dissemination, or use of the results. Describe
user audience and their expected use. Include a description of the
delivery system.
(12) Data, data rights, patents, copyrights. Discuss data to be
developed. Specify data to be delivered and data to remain in the
contractor's possession. Discuss how the data is to be used, maintained,
disclosed and disposed of by the contractor. Discuss data subject to the
Privacy Act or Confidentiality of Information clause. Discuss data to be
delivered with limited rights, data where title would not vest in the
Government, and anticipated copyrights or patents. Discuss whether or
not the data will permit any follow-on acquisitions to be competitive.
(13) Post-award administration and monitoring. Detail milestones
that require periodic evaluation of the contractor's progress. Discuss
any formal management systems to be used to monitor the contractor.
Discuss plans
[[Page 31]]
for post-award conference and site visits. Delineate the timing of the
periodic status reports.
(14) Technical evaluation plans. Discuss the plans for technical
evaluation of the proposal. Discuss whether non-Federal technical
evaluators will review the proposals. Discuss potential conflict of
interest situations.
(c) Acquisition approach. (1) Proposed sources. Include sources or
categories of sources (if apparent). Address the pertinent areas stated
in FAR 7.105(b)(2).
(2) Contract type. Provide the rationale for recommendation of
contract type.
(3) Socioeconomic programs. Discuss preliminary liaison with the
Small and Disadvantaged Business Utilization Specialist for review to
determine requirements susceptible for the various socioeconomic
acquisition programs; i.e., small business, disadvantaged business, or
labor surplus area set-asides.
(4) Other considerations, as applicable. Discuss special contract
clauses and proposed HHSAR deviations, if required. Discuss
circumstances such as the effect of a protest on a previous acquisition
to this acquisition, special public law or regulatory requirements which
place restrictions on this acquisition, and use of a special type of
synopsis. Address planned preproposal conference, preaward survey and
preaward site visits.
(d) Planning for the acquisition cycle. (1) Scheduling
considerations. The project officer and the contract negotiator shall
establish realistic planned dates which meet the program needs for award
to assure timely delivery or completion of the project. The following
factors should be considered in planning realistic dates:
(i) Individual project officer and contract negotiator workloads;
(ii) Planned, extended absences from the office; and
(iii) Schedules are in consonance with established office goals for
overall orderly and balanced workloads.
(2) Acquisition planning schedule. The following acquisition
planning schedule should be included in all plans to the extent the
items are significant or appropriate to the acquisition. Additional
items may be added as appropriate.
Acquisition Planning Schedule
Actions and Date
Advance or sources sought synopsis released
Advance or sources sought synopsis closed
Synopsis evaluation received
Request for contract received
Special program approvals received
Synopsis publicizing proposed acquisition released
Request for proposal released
Preproposal conference conducted
Proposals received
Technical evaluation received
Cost advisory or audit report received
Equal opportunity clearance obtained
Prenegotiation conference conducted
Negotiation completed
Contract document prepared
Contract approval completed
Contract released
Award
(e) Approvals. All acquisition planning documents shall be signed by
the project officer and the contract negotiator. Acquisition planning
documents for acquisitions estimated to be between $100,000 and
$1,000,000 shall be approved by the contracting officer. Acquisition
planning documents for acquisitions estimated to be in excess of $1
million shall be approved by the principal official responsible for
acquisition or his/her designee. The designated official shall be in a
position no lower than the level above the contracting officer. One copy
of all acquisition planning documents shall be filed with the principal
official responsible for acquisition or the designated official for
planning purposes. The original acquisition planning document shall be
retained in the contract file.
[49 FR 13969, Apr. 9, 1984, as amended at 50 FR 23129, May 31, 1985; 50
FR 38004, Sept. 19, 1985]
307.105-2 Special program clearances or approvals.
The following special program clearances or approvals should be
reviewed for applicability to each planned acquisition. The ones which
are applicable should be addressed in the acquisition planning document
and immediate programmatic action should be initiated to obtain the
necessary clearances or approvals.
[[Page 32]]
(a) Clearances or approvals required to be completed and submitted
with the request for contract (RFC).--(1) Automatic data processing. All
proposed acquisitions of automatic data processing hardware, software
packages, and services, as well as telecommunications equipment, which
exceed the dollar thresholds stated in Chapter 4-10 of the HHS
Information Resources Management (IRM) Manual, must be reviewed and
approved by the Office of Information Resources Management (OIRM),
OASMB-0S. (See HHS Information Resources Management (IRM) Manual,
Chapter 4-10; Title 41 CFR Chapter 201; and Subpart 339.70.)
(2) ADP systems security. All ADP systems regardless of dollar
amount are required to have a Certification of ADP Systems Security
Adequacy signed by the ADP system manager and the cognizant ADP systems
security officer. (See HHS IRM Manual, Part 6--ADP Systems Security; OMB
Circular No. A-71, Transmittal Memorandum No. 1; and Subpart 339.70.)
(3) Advisory and assistance services. OPDIV and STAFFDIV heads and
regional directors are responsible for review and approval of all
proposed advisory and assistance services contracts and purchase orders.
(See General Administration Manual Chapter 8-15.)
(4) Evaluation contracts. The Assistant Secretary for Planning and
Evaluation (ASPE) must approve all evaluation projects for proposed
solicitations, except those which have been included in research,
demonstration, or evaluation plans previously approved by the ASPE.
(5) Commercial activities. (OMB Circular No. A-76) A request for
contract (RFC) must contain a statement as to whether the proposed
solicitation is or is not to be used as part of an OMB Circular No. A-76
cost comparison. (See General Administrative Manual (GAM) Chapter 18-10;
FAR Subpart 7.3, Subpart 307.3; OMB Circular No. A-76.)
(6) Paid advertising. Paid advertisements, notices or contract
proposals to be published in newspapers and periodicals may be
authorized by the contracting officer. (See FAR Subpart 5.5, Subpart
305.5; Title 7, Chapter 5-25.2, and the General Accounting Office Policy
and Procedures Manual for Guidance of Federal Agencies.)
(7) Printing. The acquisition of printing by contract is prohibited
unless it is authorized by the Joint Committee on Printing of the U.S.
Congress. Procedures to be followed are contained in the ``Government
Printing and Binding Regulations'' and the HHS Printing Management
Manual and FAR Subpart 8.8.
(8) Fraud, abuse and waste. All proposed acquisitions that concern
the subjects of fraud, abuse and waste must be reviewed and approved by
the Inspector General or Deputy Inspector General, and written approval
from either must be included in the request for contract.
(9) Paperwork Reduction Act. Under the Paperwork Reduction Act of
1980 (Pub. L. 96-511), a Federal agency shall not collect information or
sponsor the collection of information from ten or more persons (other
than Federal employees acting within the scope of their employment)
unless, in advance, the agency has submitted Standard Form 83, Request
for OMB Review, to the Director of the Office of Management and Budget,
and the Director has approved the proposed collection of information.
Procedures for the approval may be obtained by contacting the OPDIV
reports clearance officer. (See Title 5 CFR Part 1320 and General
Administration Manual Chapter 10-20.)
(10) Contracts with federal employees. Contracts between the
Government and Government employees or between the Government and
organizations which are substantially owned or controlled by Government
employees may not knowingly be entered into, except for the most
compelling reasons (see FAR Subpart 3.6). Authority to enter into a
contract with a Government employee or an organization substantially
owned or controlled by a Government employee must be approved prior to
award of the contract by either the Assistant Secretary for Management
and Budget, the head of the OPDIV, or the regional director, or their
designees. (See 45 CFR Part 73 and HHS Standards of Conduct.)
(11) Publications. All projects which will result in contracts and
which include publications require review and
[[Page 33]]
approval by the Office of the Assistant Secretary for Public Affairs
(OASPA). Form HHS-615, Publication Planning and Clearance Request,
should be forwarded to OASPA through the OPDIV public affairs officer.
Publications are defined in the chapter on publications in the Public
Affairs Management Manual.
(12) Public affairs services. Projects for the acquisition of public
affairs services in excess of $5,000 shall be submitted to the Office of
the Assistant Secretary for Public Affairs (OASPA) for review and
approval on Form HHS-524, Request for Public Affairs Service Contract.
(13) Audiovisual (videotape and motion picture production). Any
proposed acquisition of an audiovisual production requires the
submission of a Standard Form 282, Mandatory Title Check, to the
National Audiovisual Center (NAC). When the results of this title check
have been reviewed by the project office and if a determination is made
that existing materials are not adequate to fulfill the requirement, a
statement to that effect shall be prepared by the project office. For
acquisitions in excess of $5,000, a copy of that statement, together
with a Standard Form 202, Federal Audiovisual Production Report, and
Form HHS-524A, Request for Audiovisual Material, shall be submitted
through the OPDIV public affairs officer to the Office of the Assistant
Secretary for Public Affairs (OASPA) for review and approval. Following
approval by OASPA, the SF 202 and the statement explaining why existing
materials are insufficient will be forwarded to NAC by OASPA. An
approved copy of the Form HHS-524A will be returned to the OPDIV for
transmission to the contract negotiator. All audiovisuals are required
to be acquired under the Government-wide Contracting System for Motion
Picture and Videotape Productions, unless they are included in the
exceptions to the mandatory use of the uniform system. (See the
Executive Agent for Government-Wide Contracting System for Audiovisual
Productions' March 21, 1980, memorandum on Implementation of OFPP Policy
Letter No. 79-4, November 28, 1979, Contracting for Motion Picture and
Videotape Productions; HHS General Administration Manual Chapter 1-121.)
(14) Privacy Act (Pub. L. 93-579.) Whenever the Department contracts
for the design, development, operation, or maintenance of a system of
records on individuals on behalf of the Department in order to
accomplish a departmental function, the Privacy Act is applicable. The
program official, after consultation with the activity's Privacy Act
Coordinator and the Office of General Counsel as necessary shall include
a statement in the request for contract as to the applicability of the
Act. Whenever an acquisition is subject to the Act, the program official
prepares a ``system notice'' and has it published in the Federal
Register. (See HHS Privacy Act regulation, 45 CFR 5b; FAR Subpart 24.1
and Subpart 324.1.)
(b) Clearances or approvals required to be completed prior to
contract award. All foreign research contract projects to be conducted
in a foreign country and financed by HHS funds (U.S. dollars) must have
clearance by the Department of State with respect to consistency with
foreign policy objectives. This clearance should be obtained prior to
negotiation. Procedures for obtaining this clearance are set forth in
the HHS General Administration Manual, Chapter 20-60.
[49 FR 13969, Apr. 9, 1984, as amended at 49 FR 36110, Sept. 14, 1984;
50 FR 23129, May 31, 1985; 50 FR 38004, Sept. 19, 1985; 53 FR 15563, May
2, 1988; 53 FR 43207, Oct. 26, 1988; 53 FR 44551, Nov. 3, 1988]
307.105-3 Specification, purchase description and statement of work.
One of the most important parts of a contract is the description of
the work to be done. The description of that work may be in the form of
a specification, purchase description or statement of work. A brief
reference to specifications and purchase descriptions is provided,
although the nature of the work performed in this Department usually
results in the development of work statements. The development of the
acquisition planning document should result in sufficient information to
readily develop the description of work, usually in the form of a
statement of work.
[[Page 34]]
(a) Specification. Specification is defined in FAR 10.001. Use of
the specification is primarily limited to supply or service contracts
where the material end item or service to be delivered is well defined
by the Government.
(b) Purchase description. FAR 10.001 also contains the definition of
purchase description.
(c) Statement of work.--(1) General. A statement of work differs
from a specification and purchase description primarily in that it
describes work or services to be performed in reaching an end result
rather than a detailed, well defined description or specification of the
end product. The statement of work may enumerate or describe the methods
(statistical, clinical, laboratory, etc.) that will be used. However, it
is preferable for the offeror to propose the method of performing the
work. The statement of work should specify the desired results,
functions, or end items without telling the offeror what has to be done
to accomplish those results unless the method of performance is critical
or required for the successful performance of the contract. The
statement of work should be clear and concise and must completely define
the responsibilities of the Government and the contractor. The statement
of work should be worded so as to make more than one interpretation
virtually impossible because it has to be read and interpreted by
persons of varied backgrounds, such as attorneys, contracting personnel,
cost estimators, accountants, scientists, sociologists, educators,
functional specialists, etc. If the statement of work does not state
exactly what is wanted, or does not state it precisely, it will generate
many contract management problems for both the project officer and the
contracting officer. Ambiguous statements of work can create
unsatisfactory performance, delays, and disputes, and can result in
higher costs.
(2) Term (level of effort) vs. completion work statement. Careful
distinctions must be drawn between term (level of effort) statements of
work, which essentially require the furnishing of technical effort and a
report thereof, and completion type work statements, which often require
development of tangible end items designed to meet specific performance
characteristics.
(i) Term or level of effort. A term or level of effort type
statement of work is appropriate to research where one seeks to discover
the feasibility of later development, or to gather general information.
A term or level of effort type statement of work may only specify that
some number of labor-hours be expended on a particular course of
research, or that a certain number of tests be run, without reference to
any intended conclusion.
(ii) Completion. A completion type statement of work is appropriate
to development work where the feasibility of producing an end item is
already known. A completion type statement of work may describe what is
to be achieved through the contracted effort, such as the development of
new methods, new end items, or other tangible results.
(3) Phasing. Individual research, development, or demonstration
projects frequently lie well beyond the present state of the art and
entail procedures and techniques of great complexity and difficulty.
Under these circumstances, a contractor, no matter how carefully
selected, may be unable to deliver the desired result. Moreover, the job
of evaluating the contractor's progress is often difficult. Such a
contract is frequently phased and often divided into stages of
accomplishment, each of which must be completed and approved before the
contractor may proceed to the next. Phasing makes it necessary to
develop methods and controls, including reporting requirements for each
phase of the contract and criteria for evaluation of the reports
submitted, that will provide, at the earliest possible time, appropriate
data for making decisions relative to all phases. A phased contract may
include stages of accomplishment such as research, development, and
demonstration. Within each phase, there may be a number of tasks which
should be included in the statement of work. When phases of work can be
identified, the statement of work will provide for phasing and the
request for proposals will require the submission of proposed costs by
phases. The resultant contract will reflect costs by phases, require the
[[Page 35]]
contractor to identify incurred costs by phases, establish delivery
schedules by phases, and require the written acceptance of each phase.
The provisions of the Limitation of Cost clause shall apply to the
estimated cost of each phase. Contractors shall not be allowed to incur
costs for phases which are dependent upon successful completion of
earlier phases until written acceptance of the prior work is obtained
from the contracting officer.
(4) Elements of the statement of work. The elements of the statement
of work will vary with the objective, complexity, size, and nature of
the acquisition. In general, it should cover the following matters as
appropriate.
(i) A general description of the required objectives and desired
results. Initially, a broad, nontechnical statement of the nature of the
work to be performed. This should summarize the actions to be performed
by the contractor and the results that the Government expects.
(ii) Background information helpful to a clear understanding of the
requirements and how they evolved. Include a brief historical summary as
appropriate. Include pertinent legislative history, related contracts or
grants, and the relationship to overall program objectives.
(iii) A detailed description of the technical requirements. A
comprehensive description of the work to be performed to provide
whatever details are necessary for prospective offerors to submit
meaningful proposals.
(iv) Subordinate tasks or types of work. A listing of the various
tasks or types of work (it may be desirable in some cases to indicate
that this is not all-inclusive). The degree of task breakout is directly
dependent on the size and complexity of the work to be performed and the
logical groupings. A single cohesive task should not be broken out
merely to conform to a format. Indicate whether the tasks are sequential
or concurrent for offeror planning purposes.
(v) Phasing. When phasing is applicable, describe in detail the work
or effort required in each phase and the criteria for determining
whether the next phase will take place. If one or more phases contain
subordinate tasks or types of work, the preceding information in
paragraph (c)(4) (iv) may be incorporated into the part.
(vi) Reference material. All reference material to be used in the
conduct of the project, such as technical publications, reports,
specifications, architect or engineering drawings, etc., that tell how
the work is to be carried out must be identified. Applicability should
be explained, and a statement made as to where the material can be
obtained.
(vii) Level of effort. When a level of effort is required, the
number and type of personnel required should be stated. If known, the
type and degree of expertise should be specified.
(viii) Special requirements (as applicable). An unusual or special
contractual requirement, which would impact on contract performance,
should be included as a separate section. Such items could include
required place(s) of performance or unusual travel requirements.
Clearance requirements, such as forms clearance, should be addressed.
(ix) Deliverables reporting requirements. All deliverables and/or
reports must be clearly and completely described. For example, in a
Final Study Report it is important to indicate what areas the report
should cover and the criteria for use in accepting the final report to
determine if the contract objectives have been satisfied. It is
important to require the preparation and submission of progress reports
(administrative, technical and financial) to reflect contractor
certification of satisfactory progress. If possible, the reports should
be coordinated in such a manner as to provide a correlation between
costs incurred and the state of completion. All delivery and reporting
requirements shall include the quantities, the place of delivery, and
time of delivery.
307.170 Program training requirements.
(a) Chapter 8-95 of the General Administration Manual (GAM)
addresses the general parameters for acquisition planning as stated in
307.104. In conjunction with the principles of proper acquisition
planning, the Department has established training courses for program
officials to promote expedient program management in the planning and
other pertinent aspects of the acquisition process. Chapter 8-96 of the
[[Page 36]]
GAM sets forth specific training requirements for program officials as
follows:
(1) All program personnel selected to serve as project officer for
an HHS contract shall have successfully completed either the
Department's appropriate ``Base Project Officer'' course, or an
equivalent course (see paragraph (b), below).
(2) At least fifty percent of the HHS program personnel performing
the function of technical proposal evaluator on a technical evaluation
team or panel for any competitively solicited HHS contract shall have
successfully completed the appropriate ``Basic Project Officer'' course,
or an equivalent course (see paragraph (b), below). This requirement
applies to the initial technical proposal evaluation and any subsequent
technical evaluations that may be required.
(b) Determination of course equivalency shall be made by the
principal official responsible for acquisition of the cognizant
contracting activity. The contracting officer is responsible for
ensuring that the project officer and technical proposal evaluators have
successfully completed the required training discussed in 307.170-2.
[49 FR 13969, Apr. 9, 1984, as amended at 56 FR 47002, Sept. 17, 1991]
307.170-1 Policy exceptions.
(a) Small contracting activities. (1) Program personnel designated
to serve as project officers and technical proposal evaluators for
contracts which originate in offices having a mission which only
incidentally and infrequently involves the generation of contract
requirements (i.e., normally less than three contract requirements per
fiscal year and in an amount not exceeding $100,000 per contract) are
not required to have completed any of the referenced training courses,
although completion of an appropriate ``Basic Project Officer'' course
is recommended.
(2) As a substitute for the training, contracting officers servicing
these program offices are required to ensure, as a minimum, that program
personnel designated to serve as project officers and technical proposal
evaluators have read and studied the ``DHHS Project Officers'
Contracting Handbook,'' and fully understand their responsibilities. The
contracting officer shall require these program personnel to furnish
written certification that they have fulfilled this requirement prior to
discharging the duties of project officer or technical proposal
evaluator.
(b) Urgent requirements. In the event there is an urgent requirement
for a specific individual to serve as a project officer and that
individual has not successfully completed the prerequisite training
course, the principal official responsible for acquisition may waive the
training requirement and authorize the individual to perform the project
duties, provided that:
(1) The individual first meets with the cognizant contracting
officer to review the ``DHHS Project Officers' Contracting Handbook,''
and to discuss the important aspects of the contracting--program office
relationship as appropriate to the circumstances; and
(2) The individual attends the next scheduled and appropriate
``Basic Project Officer'' course.
[49 FR 13969, Apr. 9, 1984, as amended at 56 FR 47002, Sept. 17, 1991]
307.170-2 Training course prerequisites.
(a) Project officers. (1) Newly appointed project officers, and
project officers with less than three years experience and no previous
related training, are required to take the appropriate ``Basic Project
Officer'' course. (The grade level for project officers attending the
course should be GS-7 and above). All project officers are encouraged to
take the appropriate ``Writing Statements of Work'' course.
(2) Project officers with more than three years experience, and
project officers with less than three years experience who have
successfully completed the appropriate basic course, are qualified (and
encouraged) to take the ``Advanced Project Officer'' course.
(3) Additional information on prerequisites for attendance of these
courses may be found in the ``DHHS Acquisition Training and
Certification Program Handbook.''
(b) Technical proposal evaluators. Technical proposal evaluators,
regardless of experience, are required to take
[[Page 37]]
the appropriate ``Basic Project Officer'' course. Upon successful
completion of the basic course, it is recommended that they take the
appropriate ``Advanced Project Officer'' course.
[49 FR 13969, Apr. 4, 1984, as amended at 56 FR 47002, Sept. 17, 1991]
Subpart 307.3--Contractor Versus Government Performance
307.302 General.
(a) GAM Chapter 18-10, Commercial-Industrial Activities of the
Department of Health and Human Services Providing Products or Services
for Government Use, assigns responsibilities for making method-of-
performance decisions (contract vs. in-house performance) to various
management levels within the Department depending on the dollar amount
of capital investment or annual operating costs. It also requires that
each operating division (OPDIV), staff division (STAFFDIV) and regional
office (RO) designate a ``Commercial-Industrial Control Officer'' (CICO)
to be responsible for ensuring compliance with the requirements of the
Chapter.
(d) Besides contracts with annual operating costs under $100,000,
contracts under an authorized acquisition set-aside for small business
or labor surplus area concerns and contracts made pursuant to section
8(a) of the Small Business Act are exempted from the requirements of FAR
Subpart 7.3, GAM Chapter 18-10, and OMB Circular No. A-76.
307.303 Determining availability of private commercial sources.
In accordance with the provisions of GAM Chapter 18-10, OPDIVs,
STAFFDIVs, and ROs and must prepare and maintain a complete inventory of
all individual commercial or industrial activities, including those
conducted under contracts in excess of $100,000 annually. They must also
conduct periodic reviews of each activity and contract in the inventory
to determine if the existing performance, in-house or by contract,
continues to be in accordance with the policy guidelines of GAM Chapter
18-10.
307.304 Procedures.
Contracting officers shall ensure that no acquisition action
involving a commercial-industrial activity is initiated unless it is in
compliance with the requirements of GAM Chapter 18-10. The contracting
officer must check each request for contract expected to result in a
contract in excess of $100,000 to ensure that it contains a statement as
to whether the proposed contract is or is not subject to review under
GAM Chapter 18-10 requirements. If the contracting officer has any
questions regarding the determination of applicability or
nonapplicability, or if the required statement is missing, the program
office submitting the request for contract should be contacted and the
situation rectified. If the issue cannot be resolved with the program
office, the contracting officer shall refer the matter to the CICO for a
final determination. The principal official responsible for acquisition
is responsible for ensuring that contracting activities are in full
compliance with FAR Subpart 7.3.
307.307 Appeals.
The review and appeals procedures discussed in FAR 7.307 are
addressed in GAM Chapter 18-10.
Subpart 307.70--Considerations in Selecting an Award Instrument
307.7000 Scope of subpart.
This subpart provides guidance on the appropriate selection of award
instruments consistent with the Federal Grant and Cooperative Agreement
Act of 1977 (Pub. L. 95-224) and the OMB implementation of the Act as
published in the Federal Register on August 18, 1978 (41 FR 36860). This
subpart addresses acquisition relationships where the award instrument
is the contract, and assistance relationships where the award instrument
is either a grant or cooperative agreement.
307.7001 Applicability.
This subpart applies to the choice of award instrument--contract,
grant, or cooperative agreement--for all program and individual
transactions, except where specifically prohibited by law.
[[Page 38]]
307.7002 Purpose.
This subpart provides guidance to assist in the determination of
whether to use the acquisition or assistance process to fulfill program
needs. The distinction between, and use of, grants and cooperative
agreements is not discussed in detail. Detailed guidance may be found in
Chapter 1-02 of the Grants Administration Manual.
307.7003 Distinction between acquisition and assistance.
(a) The Federal Grant and Cooperative Agreement Act of 1977 requires
the use of contracts to acquire property or services for the direct
benefit or use of the Government and grants or cooperative agreements to
transfer money, property, services, or anything of value to recipients
to accomplish a public purpose of support or stimulation authorized by
Federal statute.
(b) A contract is to be used as the legal instrument to reflect a
relationship between the Federal Government and a recipient whenever:
(1) The principal purpose of the instrument is the acquisition, by
purchase, lease, or barter, of property or services for the direct
benefit or use of the Federal Government; or
(2) The Department determines in a specific instance that the use of
a type of contract is appropriate. That is, it is determined in a
certain situation that specific needs can be satisfied best by using the
acquisition process. However, this authority does not permit
circumventing the criteria for use of acquisition or assistance
instruments. Use of this authority is restricted to extraordinary
circumstances and only with the prior approval of the Director, Office
of Acquisition and Grants Management.
(c) A grant or cooperative agreement is to be used as the legal
instrument to reflect a relationship between the Federal Government and
a recipient whenever the principal purpose of the relationship is the
transfer of money, property, services, or anything of value to the
recipient to accomplish a public purpose of support or stimulation
authorized by Federal statute.
(1) A grant is the legal instrument to be used when no substantial
involvement is anticipated between the Department and the recipient
during performance of the contemplated activity.
(2) A cooperative agreement is the legal instrument to be used when
substantial involvement is anticipated between the Department and the
recipient during performance of the contemplated activity.
(d) As a general rule, contracts are to be used for the following
purposes:
(1) Evaluation (including research of an evaluative nature) of the
performance of Government programs or projects or grantee activity
initiated by the funding agency for its direct benefit or use.
(2) Technical assistance rendered to the Government, or on behalf of
the Government, to any third party, including those receiving grants or
cooperative agreements.
(3) Surveys, studies, and research which provide specific
information desired by the Government for its direct activities, or for
dissemination to the public.
(4) Consulting services or professional services of all kinds if
provided to the Government or, on behalf of the Government, to any third
party.
(5) Training projects where the Government selects the individuals
or specific groups whose members are to be trained or specifies the
content of the curriculum (not applicable to fellowship awards).
(6) Planning for Government use.
(7) Production of publications or audiovisual materials required
primarily for the conduct of the direct operations of the Government.
(8) Design or development of items for Government use or pursuant to
agency definition or specifications.
(9) Conferences conducted on behalf of the Government.
(10) Generation of management information or other data for
Government use.
(e) As a general rule, grants or cooperative agreements are to be
used for the following purposes:
(1) General financial assistance (stimulation or support) to
eligible recipients under specific legislation authorizing the
assistance.
[[Page 39]]
(2) Financial assistance (stimulation or support) to a specific
program activity eligible for assistance under specific legislation
authorizing the assistance.
[49 FR 13969, Apr. 9, 1984, as amended at 54 FR 24343, June 7, 1989]
307.7004 Procedures.
(a) OPDIV, agency, and regional office program officials should use
existing budget and program planning procedures to propose new
activities and major changes in ongoing programs. It is the
responsibility of these program officials to meet with the principal
official responsible for acquisition and the principal grants management
official, or their designees, to distinguish the relationships and
determine whether award is to be made through the acquisition process or
assistance process. This determination should be made prior to the time
when the annual acquisition plan is reviewed and approved so that the
plan will reflect all known proposed contract actions. The cognizant
contracting officer will confirm the appropriateness of the use of the
contract instrument when reviewing the request for contract.
(b) Shifts from one award instrument to another must be fully
documented in the appropriate files to show a fundamental change in
program purpose that unequivocably justifies the rationale for the
shift.
(c) OPDIVs, agencies, and regional offices must ensure that the
choice of instrument is determined in accordance with the Federal Grant
and Cooperative Agreement Act of 1977 and applicable departmental
policies. If, however, there are major individual transactions or
programs which contain elements of both acquisition and assistance in
such a way that they cannot be characterized as having a principal
purpose of one or the other, guidance should be obtained from the
Director, Office of Acquisition and Grants Management through normal
channels, before proceeding with a determination.
(d) Any public notice, program announcement, solicitation, or
request for applications or proposals must indicate whether the intended
relationship will be one of acquisition or assistance and specify the
award instrument to be used.
[49 FR 13969, Apr. 9, 1984, as amended at 54 FR 24343, June 7, 1989]
Subpart 307.71--Phase II Advance Acquisition Planning (Scheduling)
307.7101 Background.
(a) Failure to properly plan individual acquisitions and failure to
schedule the overall acquisition workload of an office, agency, or OPDIV
tends to result in an inordinate percentage of contract awards being
made in the closing weeks and even days of the fiscal year. This
phenomenon, variously identified as ``The September Rush'', ``Hurry-up
Spending'', ``End-of-Year Purchasing'', and ``Year-End Spending
Abuses'', in turn fosters rushed, other than full and open competition,
inadequately documented, and potentially wasteful acquisitions.
Excessive year-end spending also invites increased intervention and/or
scrutiny from Congress, the Office of Management and Budget, and the
media. The end of the fiscal year, however, is usually too late to take
corrective actions that are effective without being unduly damaging to
necessary programs. The key is to begin advance acquisition planning far
earlier.
(b) To avoid the historic pattern of wasteful and unnecessary year-
end spending, the Department introduced the Acquisition Planning
Initiative by Under Secretarial memorandum of February 19, 1980,
Subject: New Procedures to Improve Planning and Scheduling of Contract
Awards and Curb Last-Minute Year-End Procurement Spending. Phase II of
this initiative, beginning with Fiscal Year 1981, established the
present acquisition planning mechanism. Basic guidance on the Phase II
mechanism is contained in the ASMB memorandum of March 28, 1980,
Subject: Phase II of (Fiscal Year 1981) Procurement Planning
Initiative--Guidelines for Program Funding Milestones. For the Public
Health Service, the above guidance is supplemented by the ASMB
memorandum of April 21,
[[Page 40]]
1982, Subject: Phase II Annual Procurement Planning.
[49 FR 13969, Apr. 9, 1984, as amended at 50 FR 23129, May 31, 1985; 50
FR 38004, Sept. 19, 1985]
307.7102 Accountability and responsibility.
Phase II is a Department-wide monitoring and accountability system
that requires early planning of acquisition requirements down to the
individual project level. The Phase II mechanism includes the following:
(a) Accountability lies with the OPDIV and STAFFDIV heads who are
required to coordinate overall schedules which plot the planned
distribution of RFC deliveries and contract awards over an eighteen-
month timeline extending to fiscal year-end.
(b) Each OPDIV and STAFFDIV retains the flexibility to schedule
individual RFC deliveries and contract awards as desired, so long as the
overall schedule presents a relatively even distribution of contract
awards and workload across the fiscal year.
(c) The schedules are updated quarterly to compare actual versus
planned progress and, when necessary, to revise the schedules for the
remainder of the fiscal year.
(d) Project officers are responsible for initiating the project
planning by coordinating with contracting activities prior to RFC
preparation, and taking the lead in developing acquisition plans that
establish the date(s) for delivering complete RFC packages to the
contracting activity, and that establish the planned award dates for
individual projects.
(e) The Director, Office of Acquisition and Grants Management
monitors the OPDIV and STAFFDIV Phase II plans throughout the year to
assure that an even distribution of awards, dollar obligations, and
workload is maintained.
[49 FR 13969, Apr. 9, 1984, as amended at 50 FR 23126, May 31, 1985; 50
FR 38004, Sept. 19, 1985; 54 FR 24343, June 7, 1989]
307.7103 Purpose.
The Phase II Advance Acquisition Planning mechanism serves to avoid
excessive year-end spending and distributes the contract workload as
evenly as possible over the fiscal year, and provides a mechanism for
planning at the program/acquisition operational level and a management
tool for monitoring at the program, OPDIV, and departmental levels.
307.7104 Contracting activity actions.
The contracting activity shall take the following actions:
(a) Advise program and staff personnel of their responsibilities to
ensure that:
(1) Year-end acquisitions of unplanned items are not entered into to
use available balances of expiring appropriations (which would otherwise
revert to the Treasury);
(2) Orders for supplies, materials, and equipment are kept to the
minimum needed to carry on approved programs;
(3) Inventories are held to normal levels; and
(4) New contracts for future services and payments to contractors
are made only in accordance with established plans.
(b) Determine closing dates for purchases to be made from
appropriations ending on September 30.
(c) Expedite the preparation and processing of determinations and
findings which require the approval of the Assistant Secretary for
Management and Budget or the OPDIV head.
PART 309--CONTRACTOR QUALIFICATIONS--Table of Contents
Subpart 309.1--Responsible Prospective Contractors
Sec.
309.104 Standards.
309.104-1 General standards.
309.105 Procedures.
309.105-1 Obtaining information.
Subpart 309.4--Debarment, Suspension, and Ineligibility
309.403 Definitions.
309.404 Parties excluded from procurement programs.
309.405 Effect of listing.
309.405-1 Continuation of current contracts.
309.406 Debarment.
309.406-3 Procedures.
309.407 Suspension.
309.407-3 Procedures.
[[Page 41]]
309.470 Reporting of suspected causes for debarment, suspension, or the
taking of evasive actions.
309.470-1 Situations where reports are required.
309.470-2 Contents of reports.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 49 FR 13976, Apr. 9, 1984, unless otherwise noted.
Subpart 309.1--Responsible Prospective Contractors
309.104 Standards.
309.104-1 General standards.
(a) In determining the adequacy of a prospective contractor's
financial resources for the performance of the proposed contract,
particular attention shall be given to the ability of the contractor to
discharge its full financial responsibility for charges and losses of
Government-furnished material, when the contractor has responsibility
for such material.
(e) The prospective contractor must have an established system of
accounting and financial controls which are determined by the
contracting officer to be adequate to permit the effective
administration of the type of contract proposed, particularly if under
its terms the costs incurred are a factor in determining the amount
payable under the contract, or if advance or progress payments are
requested.
309.105 Procedures.
309.105-1 Obtaining information.
(b)(2)(ii) To ensure that a prospective contractor has the necessary
accounting and operational controls (see 309.104-1(e)), a written
determination must be made by the contracting officer that the
prospective contractor has an adequate accounting system for determining
costs applicable to the contract and a billing system that satisfies the
contractual payment provisions. The determination must explain the basis
for this judgment.
(A) When dealing with high risk organizations, i.e., new
organizations, those with known problems, and those with accounting
system deficiencies, the contracting officer shall use every reasonable
means available to protect the Government from the improper expenditure
of Federal funds. Actions should include at least one of the following:
preaward and postaward audits; direct identification of cost with
deliverables; billing by contract phases or tasks; fidelity bonding or
other guarantees by the parent company or principals of the
organization; increased scrutiny of vouchers and financial reports; and
frequent site visits to verify the incurrence of specific costs and the
relationship of technical progress with the amount billed.
(B) If a prospective contractor's accounting or billing system (or
both) is determined to be inadequate, corrective action must be taken
before that organization is awarded a contract. When corrective action
cannot be completed until after the award and the contracting officer
determines that the award must be made, the contracting officer shall
consult with the cognizant cost advisor and take the appropriate actions
set forth in FAR 16.104 to ensure that the Government's interests will
be protected and the contract will be adequately costed and
administered. Awards made under the preceding condition must be approved
in writing by the principal official responsible for acquisition.
Subpart 309.4--Debarment, Suspension, and Ineligibility
Source: 50 FR 7780, Feb. 26, 1985, unless otherwise noted.
309.403 Definitions.
Acquiring agency's head or a designee, as used in the FAR, shall
mean, unless otherwise stated in this subpart, the head of the
contracting activity. Acting in the capacity of the acquiring agency's
head, the head of the contracting activity may make the required
justifications or determinations, and take the necessary actions,
specified in FAR Secs. 9.405, 9.406, and 9.407 for his or her respective
activity, but only after obtaining the approval of the debarring or
suspending official, as the case may be.
Debarring official means the Assistant Secretary for Management and
Budget, or his/her designee.
[[Page 42]]
Initiating official means either the contracting officer, the head
of the contracting activity, the Deputy Assistant Secretary for
Management and Acquisition, or the Inspector General.
Suspending official means the Assistant Secretary for Management and
Budget, or his/her designee.
[50 FR 7780, Feb. 26, 1985, as amended at 54 FR 24343, June 7, 1989; 54
FR 43965, Oct. 30, 1989]
309.404 Parties excluded from procurement programs.
(c) The Office of Management and Acquisition (OMAC) shall perform
the actions required by FAR 9.404(c).
(4) OMAC shall maintain all documentation submitted by the
initiating official recommending the debarment or suspension action and
all correspondence and other pertinent documentation generated during
the OMAC review.
[50 FR 7780, Feb. 26, 1985, as amended at 54 FR 24343, June 7, 1989; 54
FR 43966, Oct. 30, 1989]
309.405 Effect of listing.
(a) The head of the contracting activity may, with the concurrence
of the debarring or suspending official, make the determinations
referenced in FAR 9.405(a), regarding contracts for their respective
activities.
(1) If a contracting officer considers it necessary to award a
contract, or consent to a subcontract with a debarred or suspended
contractor, the contracting officer shall prepare a determination,
including all pertinent documentation, and submit it through acquisition
channels to the head of the contracting activity. The documentation must
include the date by which approval is required and a compelling reason
for the proposed action. Some examples of circumstances that may
constitute a compelling reason for the award to, or consent to a
subcontract with, a debarred or suspended contractor include:
(i) The property or services to be acquired are available only from
the listed contractor;
(ii) The urgency of the requirement dictates that the Department
deal with the listed contractor; or
(iii) There are other compelling reasons which require business
dealings with the listed contractor.
(2) If the head of the contracting activity decides to approve the
requested action, he/she shall request the concurrence of the debarring
or suspending official and, if given, shall, in writing, inform the
contracting officer of the decision within the required time period.
309.405-1 Continuation of current contracts.
(a) Notwithstanding the debarment or suspension of a contractor,
contracting officers may continue contracts or subcontracts in existence
at the time the contractor was debarred or suspended, unless the head of
the contracting activity or debarring or suspending official directs
otherwise. A decision as to the type of termination action, if any, to
be taken should be made only after review by the awarding activity's
contracting and technical personnel. The contracting officer shall
coordinate any termination with the Office of the General Counsel to
ensure the propriety of the proposed action.
(b) Contracting officers shall not renew the current contracts of
debarred or suspended contractors, or otherwise extend their duration,
unless the head of the contracting activity determines to do so, with
the concurrence of the debarring or suspending official. The contracting
officer shall prepare a determination meeting the requirements of
309.405(a) and submit it, through acquisition channels, to the head of
the contracting activity. If the head of the contracting activity agrees
with the determination, he/she shall obtain the concurrence of the
debarring or suspending official.
309.406 Debarment.
309.406-3 Procedures.
(a) Investigation and referral. Whenever an apparent cause for
debarment becomes known to an initiating official, that person shall
prepare a report incorporating the information required by 309.470-2, if
known, and forward it through appropriate channels, with a written
recommendation, to the debarring official. Contracting officers shall
[[Page 43]]
forward their reports in accordance with 309.470-1. The debarring
official shall initiate an investigation through such means as he/she
deems appropriate.
(b) Decisionmaking process. The debarring official shall review the
results of the investigation, if any, and make a written determination
whether or not debarment procedures are to be commenced. A copy of the
determination shall be promptly sent through appropriate channels to the
initiating official, and the contracting officer, if necessary. If the
debarring official determines to commence debarment procedures, he/she
shall, after consultation with the Office of the General Counsel, notify
the contractor in accordance with FAR 9.406-3(c). If the proposed action
is not based on a conviction or judgment and the contractor's submission
in response to the notice raises a genuine dispute over facts material
to the proposed debarment, the debarring official shall arrange for
fact-finding hearings and take the necessary actions specified in FAR
9.406-3(b)(2). The debarring official shall also ensure that written
findings of fact are prepared, and shall base the debarment decision on
the facts as found, after considering information and argument submitted
by the contractor and any other information in the administrative
record. The Office of the General Counsel shall represent the Department
at any fact-finding hearing and may present witnesses for HHS and
question any witnesses presented by the contractor.
309.407 Suspension.
309.407-3 Procedures.
(a) Investigation and referral. Whenever an apparent cause for
suspension becomes known to an initiating official, that person shall
prepare a report incorporating the information required by 309.470-2, if
known, and forward it through appropriate channels, with a written
recommendation, to the suspending official. Contracting officers shall
forward their reports in accordance with 309.470-1. The suspending
official shall initiate an investigation through such means as he/she
deems appropriate.
(b) Decisionmaking process. The suspending official shall review the
results of the investigation, if any, and make a written determination
whether or not suspension should be imposed. A copy of this
determination shall be promptly sent through appropriate channels to the
initiating official and the contracting officer, if necessary. If the
suspending official determines to impose suspension, he/she shall, after
consultation with the Office of the General Counsel, notify the
contractor in accordance with FAR 9.407-3(c). If the action is not based
on an indictment and, subject to the provisions of FAR 9.407-3(b)(2),
the contractor's submission in response to the notice raises a genuine
dispute over facts material to the suspension, the suspending official
shall, after suspension has been imposed, arrange for fact-finding
hearings and take the necessary actions specified in FAR 9.407-3(b)(2).
309.470 Reporting of suspected causes for debarment or suspension, or the taking of evasive actions.
309.470-1 Situations where reports are required.
A report incorporating the information required by 309.470-2 shall
be forwarded, in duplicate, by the contracting officer through
acquisition channels to the OMAC when--
(a) A contractor has committed, or is suspected of having committed,
any of the acts described in FAR 9.406-2 or FAR 9.407-2; or
(b) A contractor is suspected of attempting to evade the
prohibitions of debarment or suspension imposed under this regulation,
or any other comparable regulation, by changes of address, multiple
addresses, formation of new companies, or by other devices.
[50 FR 7780, Feb. 26, 1985, as amended at 54 FR 24343, June 7, 1989]
309.470-2 Contents of reports.
Each report prepared under 309.470-1 shall be coordinated with the
Office of the General Counsel and shall include the following
information, where available:
(a) Name and address of contractor.
(b) Name of the principal officers, partners, owners, or managers.
[[Page 44]]
(c) All known affiliates, subsidiaries, or parent firms, and the
nature of the affiliation.
(d) Description of the contract or contracts concerned, including
the contract number, and office identifying numbers or symbols, the
amount of each contract, the amount paid the contractor and the amount
still due, and the percentage of work completed and to be completed.
(e) The status of vouchers.
(f) Whether contract funds have been assigned pursuant to the
Assignment of Claims Act, as amended, 31 U.S.C. 3727, 41 U.S.C. 15, and,
if so assigned, the name and address of the assignee and a copy of the
assignment.
(g) Whether any other contracts are outstanding with the contractor
or any affiliates, and, if so, the amount of such contracts, whether
these funds have been assigned pursuant to the Assignment of Claims Act,
as amended, 31 U.S.C. 3727, 41 U.S.C. 15, and the amounts paid or due on
such contracts.
(h) A complete summary of all available pertinent evidence.
(i) A recommendation as to the continuation of current contracts.
(j) An estimate of damages, if any, sustained by the Government as a
result of the action of the contractor, including an explanation of the
method used in making the estimate.
(k) The comments and recommendations of the contracting officer and
statements regarding whether the contractor should be suspended or
debarred, whether any limitations should be applied to such action, and
the period of any proposed debarment.
(l) As an enclosure, a copy of the contract(s) or pertinent excerpts
therefrom, appropriate exhibits, testimony or statements of witnesses,
copies of assignments, and other relevant documentation or a written
summary of any information for which documentation is not available.
[[Page 45]]
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
PART 313--SMALL PURCHASE AND OTHER SIMPLIFIED PURCHASE PROCEDURES--Table of Contents
Subpart 313.1--General
Sec.
313.101 Definitions.
313.104 Procedures.
313.105 Small business--small purchase set-aside.
313.106 Competition and price reasonableness.
313.107 Solicitation and evaluation of quotations.
Subpart 313.2--Blanket Purchase Agreements
313.201 General.
313.204 Purchases under Blanket Purchase Agreements.
Subpart 313.4--Imprest Fund
313.403 Agency responsibilities.
Subpart 313.5--Purchase Orders
313.505 Purchase order and related forms.
313.505-3 Standard Form 44, Purchase Order--Invoice--Voucher.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 49 FR 13977, Apr. 9, 1984, unless otherwise noted.
Subpart 313.1--General
313.101 Definitions.
``Small purchase procedures''
(d) Acquisition of architect-engineer professional services of any
dollar amount.
313.104 Procedures.
(i) Small purchase methods are designed to acquire defined, off-the-
shelf, standard supplies, equipment, or services which may be awarded on
the basis of a fixed price quotation. Small purchase methods should not
be used to acquire R & D, complex studies, services, and the like (which
require judgmental technical evaluations and involve negotiations) where
the award cannot be confidently made on the low price. Where
requirements are not suitable for accomplishment using small purchase
methods, more formal negotiation methods or sealed bidding should be
used.
(j) Small purchases accomplished in accordance with this part may
not be awarded on a cost-reimbursement basis.
(k) Small purchase methods should be used with great prudence for
the acquisition of consultants to avoid the increased possibility of
using consultants in an improper personal services capacity.
[49 FR 13977, Apr. 9, 1984, as amended at 50 FR 23129, May 31, 1985; 50
FR 38004, Sept. 19, 1985; 53 FR 15563, May 2, 1988]
313.105 Small business-small purchase set-aside.
(d) (2) The contracting officer shall consult with the small and
disadvantaged business utilization specialist (SADBUS) to determine
whether small business sources are known by the SADBUS before
determining not to proceed with the small business-small purchase set-
aside. Coordination with the SADBUS is not required for small purchases
at or below ten percent of the small purchase limitation.
[57 FR 11689, Apr. 7, 1992]
313.106 Competition and price reasonableness.
(a) Purchases not over 10 percent of the small purchase limitation.
Purchases not exceeding this limit are exempt from the documentary
requirements of FAR Subpart 6.3 and Subpart 306.3. However, purchases
shall not be made repetitively from one source except for reasons which
clearly and convincingly justify other than full and open competition
(see FAR Subpart 6.3).
(b) Purchases over 10 percent of the small purchase limitation.
(4)(i)(D) Women-owned small business.
(c) Data to support small purchases over 10 percent of the small
purchase limitation.
[[Page 46]]
(2) Purchases ranging in excess of 10 percent of the small purchase
limitation up to and including the small purchase limitation which are
made without full and open competition require justification as to why
competition was not obtained. The justification, which may be in the
form of a paragraph or paragraphs in the request for contract or
requisition, must address the considerations in FAR Subpart 6.3 and
Subpart 306.3. The contracting officer may approve or disapprove the
justification. Award of the contract or purchase order by the
contracting officer shall constitute approval of the justification (see
306.304(a)(1)).
[49 FR 13977, Apr. 9, 1984, as amended at 50 FR 23129, May 31, 1985; 50
FR 38004, Sept. 19, 1985; 56 FR 47002, Sept. 17, 1991]
313.107 Solicitation and evaluation of quotations.
(e) Amendments. (1) If after the issuance of a request for
quotations but before the closing date of their receipt, it becomes
necessary (i) to make significant changes in the quantity,
specifications, or delivery schedule, (ii) to make any change in the
closing date, or (iii) to correct a defect or ambiguity, the change
shall be accomplished by issuance of an amendment to the request.
Requests for quotations using the Standard Form 18 may be amended by
letter. Oral requests for quotations may be amended orally.
(2) When it is considered necessary to issue an amendment to a
request for quotations, the period of time remaining before closing and
the need for extending this period by postponing the time set for
closing must be considered. Where only a short time remains before the
time set for closing, extension of time may be made by telegram or
telephone. This notification should be confirmed in the amendment.
(3) Any information given to one potential quoter concerning a
request for quotations shall be furnished promptly to all other
potential quoters in an amendment to the request, if the information is
necessary to potential quoters in submitting quotations, or if the lack
of the information would be prejudicial to uninformed potential quoters.
[49 FR 13977, Apr. 9, 1984, as amended at 49 FR 36110, Sept. 14, 1984;
56 FR 47003, Sept. 17, 1991]
Subpart 313.2--Blanket Purchase Agreements
313.201 General.
(e) Each blanket purchase arrangement (BPA) shall be documented by
issuance of a contractual instrument which is appropriately numbered.
313.204 Purchases under Blanket Purchase Agreements.
(e)(5) Delivery documents, invoices, etc. signed by the Government
employee receiving the item or service, will be forwarded to the fiscal
office or other paying office as designated by the OPDIV. Payment will
be made on the basis of the signed document, invoice, etc. Contracting
offices will ensure that established procedures allowing for
availability of funds are in effect prior to placement of orders.
[49 FR 13977, Apr. 9, 1984, as amended at 56 FR 47003, Sept. 17, 1991]
Subpart 313.4--Imprest Fund
313.403 Agency responsibilities.
(a) The amount of each imprest fund shall be established on the
basis of the estimated monthly payment and the need for replenishment. A
review shall be made by the responsible official at least quarterly to
insure that the fund is not in excess of needs, and appropriate
adjustments are made accordingly.
(c) Requests to establish imprest funds shall be made to the
responsible fiscal office. At larger activities where the cashier may
not be conveniently located near the purchasing office, a Class C
Cashier may be installed in the purchasing office. Documentation of cash
purchases shall be in accordance with instructions contained in the HHS
Voucher Audit Manual Part 1, Chapter 1-10.
[[Page 47]]
Subpart 313.5--Purchase Orders
13.505 Purchase order and related forms.
313.505-3 Standard Form 44, Purchase Order--Invoice--Voucher.
(d) Since the Standard Form 44 is an accountable form, a record
shall be maintained of serial numbers of the form, to whom issued, and
date issued. SF-44's shall be kept under adequate lock and key to
prevent unauthorized use. A reservation of funds shall be established to
cover total anticipated expenditures prior to use of the SF-44.
PART 314--FORMAL ADVERTISING--Table of Contents
Subpart 314.2--Solicitation of Bids
Sec.
314.202-7 Facsimile bids.
314.213 Annual submission of representations and certifications.
Subpart 314.4--Opening of Bids and Award of Contract
314.404 Rejection of bids.
314.404-1 Cancellation of invitations after opening.
314.406 Mistakes in bids.
314.406-3 Other mistakes disclosed before award.
314.406-4 Mistakes after award.
314.407 Award.
314.407-8 Protests against award.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 314.2--Solicitation of Bids
Source: 55 FR 13536, Apr. 11, 1990, unless otherwise noted.
314.202-7 Facsimile bids.
The principal official responsible for acquisition (PORA) shall
determine whether to allow the use of facsimile bids. If the PORA
decides to allow the use of facsimile bids, internal procedures shall be
developed, in accordance with the FAR, to ensure uniform processing and
control.
314.213 Annual submission of representations and certifications.
Each principal official responsible for acquisition (PORA) shall
determine whether to allow the use of the annual submission of
representations and certifications by bidders. If allowed, the
provisions of FAR 14.213 shall be followed.
Subpart 314.4--Opening of Bids and Award of Contract
314.404 Rejection of bids.
314.404-1 Cancellation of invitations after opening.
(c) The chief of the contracting office (CCO) shall make the
determination required by FAR 14.404-1(c).
(e) The CCO shall make the referenced determination.
[51 FR 44294, Dec. 9, 1986]
314.406 Mistakes in bids.
314.406-3 Other mistakes disclosed before award.
(e) Authority has been delegated to the Protest Control Officer,
Division of Acquisition Policy, Office of Acquisition and Grants
Management (OAGM) to make administrative determinations in connection
with mistakes in bid alleged after opening and before award. This
authority may not be redelegated.
(f) Each proposed determination shall have the concurrence of the
Chief, Business Law Branch, Business and Administrative Law Division,
Office of General Counsel.
(g)(3) The data required by FAR 14.406-3(g)(3) shall be marked
``IMMEDIATE ACTION--MISTAKE IN BID'' and submitted through acquisition
channels to the Protest Control Officer, Division of Acquisition Policy,
Office of Acquisition and Grants Management (OAGM). The file shall be
assembled in an orderly manner and shall include an index of enclosures.
A single copy of the file is sufficient.
(4) Since examination of evidence is necessary to determine the
proper course of action to be taken, no action will be taken on cases
referred by telephone or telegraph.
(5) Where the evidence submitted by the bidder is incomplete or in
need of clarification, the contracting officer shall document the file
to indicate the effort made to obtain clear and convincing evidence to
support the alleged mistake. Since the burden of providing
[[Page 48]]
such evidence lies with the bidder-claimant, repeated efforts to obtain
such information are neither necessary nor desirable.
(i) Doubtful cases shall not be submitted by the contracting officer
directly to the Comptroller General, but shall be submitted as indicated
in 314.406-3(g)(3).
[49 FR 13978, Apr. 9, 1984, as amended at 50 FR 23126, May 31, 1985; 50
FR 38004, Sept. 19, 1985; 54 FR 24343, June 7, 1989]
314.406-4 Mistakes after award.
(c) Authority has been delegated to the Protest Control Officer,
Division of Acquisition Policy, OAGM to make administrative
determinations in connection with mistakes in bid alleged after award.
This authority may not be redelegated.
(d) Each proposed determination shall have the concurrence of the
Chief, Business Law Branch, Business and Administrative Law Division,
Office of General Counsel.
(2) The data required by FAR 14.406-4(e)(2) shall be marked
``IMMEDIATE ACTION--MISTAKE IN BID'' and submitted as prescribed in
314.406-3(g)(3).
[49 FR 13978, Apr. 9, 1984, as amended at 50 FR 23126, May 31, 1985; 50
FR 38004, Sept. 19, 1985; 54 FR 24343, June 7, 1989]
314.407 Award.
314.407-8 Protests against award.
See Subpart 333.1--Protests.
[50 FR 23129, May 31, 1985, and 50 FR 38004, Sept. 19, 1985]
PART 315--CONTRACTING BY NEGOTIATION--Table of Contents
Subpart 315.1--General Requirements for Negotiation
Sec.
315.103 Converting from sealed bidding to negotiation procedures.
Subpart 315.4--Solicitation and Receipt of Proposals and Quotations
315.402 General.
315.404 Presolicitation notices and conferences.
315.405 Solicitations for information or planning purposes.
315.405-1 General.
315.406 Preparing requests for proposals (RFP's) and requests for
quotations (RFQ's).
315.406-1 Uniform contract format.
315.406-2 Part I--The Schedule.
315.406-3 Part II--Contract clauses.
315.406-5 Part IV--Representations and instructions.
315.407 Solicitation provisions.
315.408 Issuing solicitations.
315.409 Pre-proposal conferences.
315.410 Amendment of solicitations before closing date.
315.413 Disclosure and use of information before award.
315.413-1 Alternate I.
315.413-2 Alternate II.
315.470 Review of RFP.
315.471 Annual submission of representations and certifications.
Subpart 315.5--Unsolicited Proposals
315.505 Content of unsolicited proposals.
315.506 Agency procedures.
315.506-1 Receipt and initial review.
315.509 Limited use of data.
Subpart 315.6--Source Selection
315.602 Applicability.
315.604 Responsibilities.
315.605 Evaluation factors.
315.607 Disclosure of mistakes before award.
315.608 Proposal evaluation.
315.608-70 Technical evaluation plan.
315.608-71 Technical evaluation panel.
315.608-72 Procedures for handling and disclosing proposals.
315.608-73 Receipt of proposals.
315.608-74 Convening the technical evaluation panel.
315.608-75 Rating and ranking of proposals.
315.608-76 Technical evaluation report.
315.608-77 Evaluation of business proposals.
315.609 Competitive range.
315.610 Written or oral discussions.
315.611 Best and final offers.
315.670 Negotiation with the selected source.
315.671 Post negotiation contract preparation and award.
315.672 Preparation of negotiation memorandum.
Subpart 315.8--Price Negotiation
315.804 Cost or pricing data.
315.804-3 Exemptions from or waiver of submission of certified cost or
pricing data.
315.805 Proposal analysis.
315.805-5 Field pricing support.
Subpart 315.9--Profit
315.900 Scope of subpart.
315.905-70 Structured approach.
315.905-71 Profit factors.
[[Page 49]]
315.905-72 Contractor effort.
315.905-73 Other factors.
315.905-74 Facilities capital cost of money.
Subpart 315.10--Preaward, Award, and Postaward Notifications, Protests,
and Mistakes
315.1000 General.
315.1003 Debriefing of unsuccessful offerors.
315.1004 Protests against award.
315.1005 Discovery of mistakes.
Subpart 315.70--Requests for Contract
315.7000 Scope of subpart.
315.7001 General.
315.7002 Procedures.
315.7003 Responsibilities.
315.7004 Transmittal.
315.7005 Format and content.
315.7006 Review.
Authority: 5 U.S.C. 301; 40 U.S.C. 486cc).
Source: 49 FR 13979, Apr. 9, 1984, unless otherwise noted.
Subpart 315.1--General Requirements for Negotiation
315.103 Converting from sealed bidding to negotiation procedures.
The chief of the contracting office has the authority to make the
determination referenced in FAR 15.103.
[51 FR 44294, Dec. 9, 1986]
Subpart 315.4--Solicitation and Receipt of Proposals and Quotations
315.402 General.
(i) The principal official responsible for acquisition (PORA) shall
determine whether to allow the use of facsimile proposals. If the PORA
decides to allow the use of facsimile proposals, internal procedures
shall be developed, in accordance with the FAR, to ensure uniform
processing and control.
[55 FR 13536, Apr. 11, 1990]
315.404 Presolicitation notices and conferences.
(c) Presolicitation conferences. (1) The presolicitation conference
may only be used when approved by the chief of the contracting office.
315.405 Solicitations for information or planning purposes.
315.405-1 General.
The determination approval required by FAR 15.405-1 that a
solicitation for information or planning purposes is appropriate shall
be made by the chief of the contracting office.
315.406 Preparing requests for proposals (RFP's) and requests for quotations (RFQ's).
(a) The contracting officer is responsible for preparing the RFP
with the assistance of the project officer. The purpose of the RFP is to
convey information that prospective offerors need to prepare a proposal.
The RFP includes the statement of work and the terms, conditions and
provisions that will form the basis for the final definitive contract.
It specifies all the information that prospective offerors must furnish
to permit a meaningful and equitable evaluation of their offers. The RFP
must be clear, complete, accurate, and consistent with the requirements
of the acquisition so that it provides all who receive it with the same
understanding of the requirements. Much of the information in the RFP is
either derived directly from the request for contract or is otherwise
furnished by the project officer. Therefore, it is important that the
project officer develop a meaningful request for contract and supporting
documentation during the initial presolicitation phase which will fully
satisfy program needs and objectives when included in the RFP (see
Subpart 315.70).
(b) Careful drafting of the RFP is vital to the proper working of
the competitive process. The success of the acquisition depends, in
large measure, on how well the work to be performed and the basic ground
rules under which the competition will be conducted are described in the
RFP. Particular effort must be made to develop a comprehensive and
accurate statement of work (see 307.105-3 and FAR 35.007) to prevent
ambiguities and to avoid misunderstandings which might otherwise surface
at later stages of the acquisition.
(c) Care should be taken to avoid conflicting statements in the RFP.
Clear
[[Page 50]]
distinctions must be made as to the contents and purpose of the
statement of work, the instructions to offerors, and the evaluation
criteria. Briefly:
(1) The statement of work must clearly specify the work to be done
by the resultant contractor (or, if it is an R & D acquisition, present
a clear statement of the requirements, see FAR Part 35);
(2) The general, technical, and business instructions must delineate
all the essential information prospective offerors need to know in
preparing their proposals (see 315.406-5(b)); and
(3) The evaluation criteria must clearly indicate the technical,
management, personnel, and cost or pricing factors which are to be the
major considerations in selecting the successful offeror (see 315.406-
5(c)).
(d) The RFP must require that proposals be submitted in two parts--a
``Technical Proposal'' and a ``Business Proposal.'' Each part is to be
separate and complete in itself so that evaluation of one may be
accomplished independently of the other.
(e) The technical and business proposal instructions of the RFP must
provide all the information deemed essential for proper evaluation of
the proposals so that all prospective offerors are aware of all
requirements, and so that differences in proposals will reflect each
offeror's individual approach to the clear and unambiguous requirements
and criteria stated in the RFP.
(f) The RFP must inform prospective offerors of all evaluation
criteria and of the relative importance or weight attached to each
criterion. Evaluation criteria must be described sufficiently enough in
the RFP to inform prospective offerors of the significant matters which
should be addressed in the proposals. Only the evaluation criteria set
forth in the RFP shall be used in the evaluation of proposals, and the
criteria can only be modified by a formal amendment to the RFP.
(g) Generally, the RFP will provide that the technical proposal not
contain any reference to cost. However, resource information, such as
data concerning labor hours and categories, materials, subcontracts,
travel, computer time, etc., must be included in the technical proposal
so that the offeror's understanding of the scope of work may be
evaluated.
(h) The project officer should be offered the opportunity to review
the finalized RFP before it is printed and released.
315.406-1 Uniform contract format.
The uniform contract format specified in FAR 15.406-1 and Table 15-1
shall be used by all contracting activities of the Department.
[49 FR 13979, Apr. 9, 1984, as amended at 50 FR 23129, May 31, 1985; 50
FR 38004, Sept. 19, 1985]
315.406-2 Part I--The Schedule.
(a) Section A, Solicitation/contract form.
(3) Contracting activities are encouraged to use SF 33 for RFPs. In
those instances where a contracting activity believes the SF 33 is not
appropriate, a transmittal letter may be used. However, it is essential
that the transmittal letter contain the pertinent information that must
be brought to the attention of prospective offerors, so the information
contained in FAR 15.406-2(a)(3) shall be included in it. The transmittal
letter should also contain reference to the solicitation provision
``Late Submissions, Modifications, and Withdrawals of Proposals or
Quotations'' and stress the importance of timeliness. The last paragraph
of the transmittal letter should provide the name and complete telephone
number of a contract specialist who can provide information concerning
the solicitation.
[49 FR 13979, Apr. 9, 1984, as amended 54 FR 24343, June 7, 1989]
315.406-3 Part II--Contract clauses.
Section I, Contract clauses.
This section should contain all the pertinent contract clauses
applicable to the acquisition, to include those contained in the general
provisions, any additions or modifications to the general provisions,
and special contract clauses (see Part 352--Solicitation Provisions and
Contract Clauses).
[[Page 51]]
315.406-5 Part IV--Representations and instructions.
(a) Section K, Representations, certifications, and other statements
of offerors or quoters.
(1) This section shall begin with the following statements and
continue with the applicable representations and certifications:
To Be Completed by the Offeror: (The Representations and
Certifications must be executed by an individual authorized to bind the
offeror.)
The offeror makes the following Representations and Certifications
as part of its proposal (check or complete all appropriate boxes or
blanks on the following pages).
Name of offeror --------
RFP No. ------
Signature of authorized individual --------
Date ------
Type name of authorized individual --------
Note: The penalty for making false statements in offers is
prescribed in 18 U.S.C. 1001.
(2) The contracting officer shall insert in all solicitations the
representations and certifications at--
(i) FAR 52.203-2, Certificate of Independent Price Determination;
(ii) FAR 52.203-4, Contingent Fee Representation and Agreement;
(iii) FAR 52.204-3, Taxpayer Identification;
(iv) FAR 52.209-5, Certification Regarding Debarment, Suspension,
Proposed Debarment, and Other Responsibility Matters;
(v) FAR 52.215-6, Type of Business Organization;
(vi) FAR 52.215-20, Place of Performance;
(vii) FAR 52.219-1, Small Business Concern Representation;
(viii) FAR 52.219-2, Small Disadvantaged Business Concern
Representation;
(ix) FAR 52.219-3, Women-Owned Small Business Representation;
(x) FAR 52.222-19, Walsh-Healy Public Contracts Act Representation;
(xi) FAR 52.222-21, Certification of Nonsegregated Facilities;
(xii) FAR 52.222-22, Previous Contracts and Compliance Reports;
(xiii) FAR 52.222-25, Affirmative Action Compliance;
(xiv) FAR 52.223-1, Clean Air and Water Certification;
(xv) FAR 52.223-5, Certification Regarding a Drug-Free Workplace;
(xvi) FAR 52.225-1, Buy American Certification;
(xvii) FAR 52.225-12, Notice of Restrictions on Contracting With
Sanctioned Persons;
(xviii) FAR 52.230-2, Cost Accounting Standards Notices and
Certification (Nondefense); and
(xix) FAR 15.804-4, Certificate of Current Cost or Pricing Data; and
Note: The following paragraph shall be inserted between the title
and text of this certificate:
(When a certificate of cost or pricing data is required to be
submitted in accordance with Federal Acquisition Regulation (FAR)
15.804-4, the Contracting Officer will request that the offeror
complete, execute, and submit to the Contracting Officer a certification
in the format shown in the following Certificate of Current Cost or
Pricing Data. The certification shall be submitted only at the time
negotiations are concluded. Offerors should complete the certificate set
forth below and return it when requested by the Contracting Officer.)
(xx) 352.215-71, Employer's Identification Number.
(b) Section L, Instructions, conditions, and notices to offerors and
quoters. This section shall be comprised of the general instructions,
technical proposal instructions, and business proposal instructions, as
well as pertinent solicitation provisions (see FAR 15.407).
(1) General instructions.
(i) The general instructions provide basic guidance to prospective
offerors that informs them of what is required in the preparation and
submission of proposals. The general instructions must include the
following statements and any instructions pertinent to the individual
acquisition and applicable requirements of the OPDIV, agency, or
regional office.
General Instructions
The following instructions establish the acceptable minimum
requirements for the format and content of proposals:
Your special attention is directed to the requirements for technical
and business proposals to be submitted in accordance with these
instructions.
Any resultant contract shall include the general provisions
applicable to the selected offeror's organization and type of contract
awarded. Copies of general provisions may be
[[Page 52]]
obtained by contacting the contracting officer. Any additional clauses
required by public law, executive order, or acquisition regulations, in
effect at the time of execution of the proposed contract, will be
included.
The proposal must be prepared in two parts: a ``Technical Proposal''
and a ``Business Proposal.'' Each of the parts shall be separate and
complete in itself so that evaluation of one may be accomplished
independently of evaluation of the other. The technical proposal must
not contain reference to cost; however, resource information, such as
data concerning labor hours and categories, materials, subcontracts,
etc., must be contained in the technical proposal so that your
understanding of the scope of the work may be evaluated. It must
disclose your technical approach in sufficient detail to provide a clear
and concise presentation that includes, but is not limited to, the
requirements of the technical proposal instructions.
The proposal must be signed by an official authorized to bind your
organization. (Number) copies of your technical proposal and (number)
copies of your business proposal must be submitted to: (Insert complete
address indicating where the proposal is to be sent and how it is to be
marked. Provide similar information for hand-delivered proposals.)
You may, at your discretion, submit alternate proposals, or
proposals which deviate from the requirements; provided, that you also
submit a proposal for performance of the work as specified in the
statement of work. These proposals may be considered if overall
performance would be improved or not compromised, and if they are in the
best interest of the Government. Alternate proposals, or deviations from
any requirements of this RFP, must be clearly identified.
The Government will evaluate proposals in accordance with the
evaluation criteria set forth in Section M of this request for
proposals.
It is understood that your proposal will become part of the official
contract file.
The RFP does not commit the Government to pay any cost for the
preparation and submission of a proposal. In addition, the Contracting
Officer is the only individual who can legally commit the Government to
the expenditure of public funds in connection with this proposed
acquisition.
(ii) Include either of the following in the General Instructions if
prospective offerors are to be informed of the Government's estimate of
the level of effort necessary to accomplish the requirement:
The Government considers the level of effort to perform the
resultant contract should take the following staff-hours: (insert a
breakdown of the Government's staff-hour estimates by categories). These
estimates are furnished for the offeror's information only and are not
to be considered restrictive for proposal purposes; or
To assist you in the preparation of your proposal, the Government
considers the effort to perform this contract to be approximately
(insert the total number) staff-hours. This number is furnished for the
offeror's information only and is not considered restrictive for
proposal purposes.
Note: The first paragraph should only be used for term (e.g. level
of effort task order), rather than completion type, contracts.)
(iii) If the proposed contract will involve performance or services
on a Government installation, insert the following in the General
Instructions:
Offerors are urged and expected to inspect the site where services
are to be performed and to satisfy themselves as to all general and
local conditions that may affect the cost of performance of the
contract, to the extent such information is reasonably obtainable. In no
event will failure to inspect the site constitute grounds for claims by
the contractor after the award of a contract.
(iv) If reference material is to be provided for use in preparation
of proposals, insert either of the following:
To assist offerors in preparing their proposals, reference material
consisting of (insert title or description of publications,
specifications, drawings, reports, or other documentation being made
available as reference material) will be available for inspection at
(insert name and address of building and room number).
Offerors are expected to examine all reference material prior to
preparation and submission of their proposals. Failure to do so will be
at the offeror's risk; or
To assist offerors in preparing their proposals, reference material
consisting of (insert title or description of publications,
specifications, drawings, reports, or other documentation being
furnished as reference material) is enclosed. Offerors are expected to
examine all reference material prior to preparation and submission of
their proposal. Failure to do so will be at the offeror's risk.
(v) If the reference material being provided is to be returned to
the Government, include the following statement:
All reference material furnished hereunder shall be returned within
(insert number) days after the submission of proposals to (insert name
and address of building and room number).
[[Page 53]]
(vi) If an incentive type contract is being considered, a notice to
the offeror of the Government's desire as to use of incentives
considered applicable, objectives of the incentive performance goals,
schedules, milestones, critical delivery parameters, and similar
information must be included.
(2) Technical proposal instructions.
(i) The technical proposal instructions should clearly and concisely
describe the information prospective offerors must provide in their
technical proposals. The instructions should address the need for
submission of a detailed work plan indicating how each aspect of the
statement of work is to be accomplished, a discussion of how the work is
to be organized, staffed, and managed, and statements of the
qualifications and experience of the prospective offeror and its key
personnel.
(ii) The technical proposal instructions must be specific enough to
convey the information the program office will require from offerors to
allow the technical proposal evaluators to determine whether a proposal
is acceptable. Therefore, it is essential that the instructions are
written to elicit the information necessary to fully address all the
elements of the work plan with particular emphasis on the evaluation
criteria, so that evaluators may readily evaluate each offer in the
pertinent areas. The instructions should not require the submission of
excessive information since this will complicate the evaluation process
and could cause unnecessary proposal preparation costs for offerors.
(iii) The technical proposal instructions should require that
technical proposals be prepared in a specified format to facilitate
evaluation. A uniform format will minimize evaluators' efforts and
should minimize the amount of extraneous and voluminous material
sometimes included in proposals.
(iv) Since specific instructions must be developed to suit the needs
of the individual acquisition, detailed guidance concerning the contents
of the technical proposal instructions is not presented here. However,
the following represents a sampling of general statements which may be
helpful in the preparation of the instructions:
Technical Proposal Instructions
Proposals which merely offer to conduct a program in accordance with
the requirements of the Government's scope of work will not be eligible
for award. You must submit an explanation of the proposed technical
approach in conjunction with the tasks to be performed in achieving the
project objectives.
A detailed work plan must be submitted indicating how each aspect of
the statement of work is to be accomplished. Your technical approach
should be in as much detail as you consider necessary to fully explain
your proposed technical approach or method. The technical proposal
should reflect a clear understanding of the nature of the work being
undertaken.
The technical proposal must include information on how the project
is to be organized, staffed, and managed. Information should be provided
which will demonstrate your understanding and management of important
events or tasks. You must explain how the management and coordination of
consultant and/or subcontractor efforts will be accomplished.
The technical proposal must include a list of names and proposed
duties of the professional personnel, consultants, and key subcontractor
employees assigned to the project. Their resumes should be included and
should contain information on education, background, recent experience,
and specific scientific or technical accomplishments. The approximate
percentage of time each individual will be available for this project
must be included. The proposed staff hours for each of the above
individuals should be allocated against each task or subtask for the
project.
The technical proposal must provide the general background,
experience, and qualifications of the organization. Similar or related
contracts, subcontracts, or grants should be included and contain the
name of the customer, contract or grant number, dollar amount, time of
performance, and the names and telephone numbers of the project officer
and contracting/grants officer.
The technical proposal must contain a discussion of present or
proposed facilities and equipment which will be used in the performance
of the contract.
The technical proposal must be prepared and submitted in the
following format:
(Provide the required format.)
(3) Business proposal instructions. Business proposal instructions
consist of cost and pricing data and administrative and management data.
(i) Cost and pricing data. Prospective offerors must be informed in
the business proposal instruction that they are
[[Page 54]]
required to submit cost or pricing information in sufficient detail to
allow a complete cost analysis. (See FAR 15.804 for requirements on cost
or pricing data.) Categories and amounts of labor, materials, travel,
computer time, overhead and other costs should be requested. Prospective
offerors are to be provided Standard Form 1411, Contract Pricing
Proposal Cover Sheet, for use in preparing the cost of pricing data, and
are to be told to submit, as a minimum, cost proposals fully supported
by cost and pricing data adequate to establish the reasonableness of the
proposed amount. Prospective offerors are to comply with the instruction
on the SF 1411 and fill in or check the appropriate boxes. In addition,
they should be informed to itemize the cost for individual elements,
each as analytical studies, reports, etc., and the estimated cost of
each phase or segment of the offered performance.
(ii) Administrative and management data.
(A) The business proposal instructions must be written so that the
contracting officer receives adequate information to evaluate each
offeror's management capability and to determine whether each offeror is
responsible. Therefore, under this section, information should be
requested to allow the contracting officer to assess the following
factors as they apply to the instant acquisition:
(1) The offeror's financial capability;
(2) The offeror's capability to meet delivery or performance
schedules;
(3) The offeror's record of past performance;
(4) The offeror's record of business integrity;
(5) The offerors's possession of necessary organization, experience,
and technical skills, or the ability to obtain them;
(6) The offeror's possession of required facilities; and
(7) Any other special consideration involved in the instant
acquisition.
In some cases, these factors may duplicate evaluation criteria and may
be adequately addressed in the technical proposal instructions. However,
the contracting officer must ensure that they are covered in both the
business proposal instructions and the technical proposal instructions.
(B) The contracting officer may determine that other administrative
data in the form of additional business or cost information is
necessary. Some examples of additional information include:
(1) A copy of the current agreement on indirect cost rates;
(2) A copy of the most recent financial statements;
(3) A discussion on the extent of proposed subcontracting with small
and disadvantaged business enterprises;
(4) A request for pricing or cost breakdown tailored to the instant
acquisition to provide information for a more thorough and complete cost
analysis; and
(5) A request for explicit instructions on pricing of options and
individual line items.
However, care should be taken to request additional information only
when necessary, to prevent excessive proposal preparation costs for
offerors.
(C) The following are required statements which must be included in
the RFP.
Your proposal must stipulate that it is predicated upon all the
terms and conditions of this RFP. In addition, it must contain a
statement to the effect that it is firm for a period of at least (insert
number) days from the date of receipt by the Government.
It is HHS policy that contractors provide all equipment and
facilities necessary for performance of contracts; however, in some
instances, an exception may be granted to furnish Government-owned
property or to authorize purchase with contract funds. If additional
equipment must be acquired, you must include in your proposal the
description and estimated cost of each item, and whether you propose to
furnish the item with your own funds.
You must identify all Government-owned property in your possession
and all property acquired from Federal funds, to which you have title,
that is proposed to be used in the performance of the prospective
contract.
The management and control of Government property must be in
accordance with HHS Publication (OS) 686 entitled, ``Contractor's Guide
for Control of Government Property (1990),'' a copy of which will be
provided upon request.
(c) Section M, Evaluation factors for award--(1) General. (i) The
evaluation criteria must be developed by the
[[Page 55]]
project officer and submitted to the contracting officer in the request
for contract (RFC) for inclusion in the RFP. Development of these
criteria and the assignment of the relative importance or weight to each
criterion require the exercise of judgment on a case-by-case basis
because they must be tailored to the requirements of the individual
acquisition. Since the criteria will serve as a standard against which
all proposals will be evaluated, it is imperative that they be chosen
carefully to emphasize those factors considered to be critical in the
selection of a contractor.
(ii) The finalized evaluation criteria and indications of their
relative importance or weights, as included in the RFP, cannot be
changed except by a formal amendment to the RFP issued by the
contracting officer. No factors other than those set forth in the RFP
shall be used in the evaluation of proposals.
(2) Review of evaluation criteria. (i) The evaluation criteria
should be reviewed by the contracting officer in terms of the work
statement. This review is not intended to dictate to the program office
or project officer, but rather to ensure that the evaluation criteria
are clear, concise, and fair so that all potential offerors are fully
aware of the bases for proposal evaluation and are given an equal
opportunity to compete.
(ii) The project officer and the contracting officer should then
review the evaluation criteria together to ascertain the following:
(A) The criteria are described in sufficient detail to provide the
offerors (and evaluators) with a total understanding of the factors to
be involved in the evaluation process;
(B) The criteria address the key programmatic concerns which the
offerors must be aware of in preparing proposals;
(C) The criteria are specifically applicable to the instant
acquisition and are not merely restatements of criteria from previous
acquisitions which are not relevant to this acquisition; and
(D) The criteria are selected to represent only the significant
areas of importance which must be emphasized rather than a multitude of
factors. (All criteria tend to lose importance if too many are included.
Using too many criteria will prove as detrimental as using too few.)
(3) Examples of topics that form a basis for evaluation criteria.
Typical examples of topics that form a basis for the development of
evaluation criteria are listed in the following paragraphs. These
examples are intended to assist in the development of actual evaluation
criteria for a specific acquisition and should only be used if they are
applicable to that acquisition. They are not to be construed as actual
examples of evaluation criteria to be included in the RFP.
(i) Understanding of the problem and statement of work;
(ii) Method of accomplishing the objectives and intent of the
statement of work;
(iii) Soundness of the scientific or technical approach for
executing the requirements of the statement of work (to include, when
applicable, preliminary layouts, sketches, diagrams, other graphic
representations, calculations, curves, and other data necessary for
presentation, substantiation, justification, or understanding of the
approach);
(iv) Special technical factors, such as experience or pertinent
novel ideas in the specific branch of science or technology involved;
(v) Feasibility and/or practicality of successfully accomplishing
the requirements (to include a statement and discussion of anticipated
major difficulties and problem areas and recommended approaches for
their resolution);
(vi) Availability of required special research, test, and other
equipment or facilities;
(vii) Managerial capability (ability to achieve delivery or
performance requirements as demonstrated by the proposed use of
management and other personnel resources, and to successfully manage the
project, including subcontractor and/or consultant efforts, if
applicable, as evidenced by the management plan and demonstrated by
previouis experience).
(viii) Availability, qualifications, experience, education, and
competence of
[[Page 56]]
professional, technical, and other personnel, to include proposed
subcontractors and consultants (as evidenced by resumes, endorsements,
and explanations of previous efforts); and
(ix) Soundness of the proposed staff time or labor hours, propriety
of personnel classifications (professional, technical, others),
necessity for type and quantity of material and facilities proposed,
validity of proposed subcontracting, and necessity of proposed travel.
(4) Relative importance or weight.
(i) A statement or indication of the relative importance or weight
must be assigned to each evaluation criterion to inform prospective
offerors (and evaluators) of the specific significance of each criterion
in comparsion to the other criteria. Similarly, if a criterion is
subdivided into parts, each of the parts must be assigned a statement or
indication of the relative importance or weight.
(ii) The two principal methods used to indicate the relative
importance or weight are the numerical score and adjective description.
The Department does not prescribe a single method for determining the
relative importance or weight, but recommends the use of the numerical
score method because it is more precise and informative. However, it is
recognized that in some instances the use of the adjective description
method be more appropriate and, hence, may be used when that
determination is made.
(iii) Cost or price is not generally included as one of the
evaluation criteria and is not assigned an indication of relative
importance or weight. However, a statement must be included in the RFP
to reflect the relationship of cost or price in comparison to the other
criteria. The contracting officer must ensure that this statement
accurately reflects the appropriate balance between cost or price and
the technical factors. The contracting officer and project officer
should work together in arriving at the final determination regarding
the relationship. The following are examples of statements that may be
used to reflect this relationship. However, since these examples
represent only the two extremes and the middle position, another
statement may be developed to reflect the relationship which applies to
the instant acquisition.
(A) You are advised that paramount consideration shall be given to
the evaluation of technical proposals rather then cost or price.
(B) You are advised that paramount consideration shall be given to
cost or price rather than the evaluation of technical proposals.
(C) You are advised that the evaluation of technical proposals and
cost or price are of approximately equal value.
[49 FR 13979, Apr. 9, 1984; 49 FR 36110, Sept. 14, 1984, as amended at
53 FR 43207, Oct. 26, 1988; 54 FR 24343, June 7, 1989; 54 FR 43966, Oct.
30, 1989; 56 FR 47003, Sept. 17, 1991]
315.407 Solicitation provisions.
(c)(2) The referenced provision (FAR 52.215-6, Type of Business
Organization) is a representation, has been included under Section K
(see 315.406-5(a)(2)(iii)), and need not be restated again.
(8) The provision at 352.215-12 shall be used in place of that
specified at FAR 52.215-12.
(g) The referenced provision (FAR 52.215-20, Place of Performance)
is to be considered a certification and is included under section K (see
315.406-5(a)(2)(iv)); it need not be restated again.
(n) The contracting officer shall insert the provision at FAR
Sec. 52.233-2, Service of Protest, in solicitations as required by FAR
33.106(a).
[49 FR 13979, Apr. 9, 1984, as amended at 54 FR 43966, Oct. 30, 1989; 57
FR 11690, Apr. 7, 1992]
315.408 Issuing solicitations.
The minimum proposal preparation or response time between the date
of distribution of a RFP and the date set for receipt of proposals shall
not be less than 30 calendar days.
[49 FR 13979, Apr. 9, 1984, as amended at 53 FR 43208, Oct. 26, 1988]
315.409 Pre-proposal conferences.
If a pre-proposal conference is to be held, the provision at
352.215-72 shall be included in the solicitation.
[[Page 57]]
315.410 Amendment of solicitations before closing date.
For additional information on amendments to solicitations, see FAR
15.606.
315.413 Disclosure and use of information before award.
315.413-1 Alternate I.
The Department shall not use Alternate I procedures.
315.413-2 Alternate II.
The Department shall use the Alternate II procedures as modified in
this subsection and shall use the provision at 352.215-12, Restriction
on Disclosure and Use of Data, rather than the similar provision at FAR
15.215-12 (see 315.407(c)(8)). Any reference in the FAR to the provision
at FAR 52.215-12 shall apply to the provision at 352.215-12.
(b) The term ``data,'' as used in this section and in 352.215-12,
refers to trade secrets, business data, and technical data. Trade
secrets, within the meaning of 18 U.S.C. 1905, include, for example,
processes, formulas, and chemical compositions. Business data includes,
for example, commercial information, financial information, and cost and
pricing data. Technical data includes, for example, plans, designs,
suggestions, improvements and concepts.
The Department recognizes that requests for proposals may require the
offeror, including its prospective subcontractor(s), if any, to submit
data which the offeror does not want used or disclosed for any purpose
other than for evaluation of the proposal. Each proposal containing data
which the offeror desires to restrict must be marked on the cover sheet
by the offeror with the legend set forth at 352.215-12. Proposals, or
portions of proposals, so marked shall be handled in accordance with the
provisions of the legend.
(c) Contracting officers receiving proposals which contain
restrictive statements or legends not conforming to the referenced
provision at 352.215-12 must carefully evaluate the form and substance
of the restriction before making a determination to reject the proposal.
Deviations in form which do not compromise the Government's rights may
be accepted if approved by the activity's FOI official and the Office of
General Counsel, Business and Administrative Law Division.
(e) The Government notice shown in FAR 15.413-2(e) shall be used by
this Department and is to be placed on the cover sheet of each proposal
or quotation upon its receipt. The Government notice shall be completed
by adding the following to the end of the last sentence: ``HHSAR
paragraph 315.608-72.''
(f) The Department sometimes finds it necessary (and in some
instances is required by law) to seek evaluation of proposals outside
the Department (see 315.608(d)(6)). All conditions required by FAR
15.413-2(f) have been met and are covered in 315.608-72, Procedures for
handling and disclosing proposals. In regard to item (f)(1) of FAR
15.413-2, the Department has found that the procedure stated in the
first sentence of paragraph 315.608-72 is best and considers it in
compliance with the FAR requirement.
(g) See subpart 324.2 for detailed procedures concerning FOIA
requests.
[49 FR 13979, Apr. 9, 1984; 49 FR 36110, Sept. 14, 1984, as amended at
51 FR 44294, Dec. 9, 1986]
315.470 Review of RFP.
The principal official responsible for acquisition shall establish
procedures to ensure that an independent review of the RFP is made
between the time the synopsis is sent to the Commerce Business Daily
announcing the availability of the RFP and the release date of the RFP.
The individual selected to conduct the review must possess the
acquisition knowledge necessary to readily ascertain whether the RFP
contains the required information to be in conformance with all laws,
regulations, and internal procedures and instructions. The individual
selected to conduct the review must be a person other than the preparer
of the RFP.
[49 FR 13979, Apr. 9, 1984, as amended at 50 FR 23129, May 31, 1985; 50
FR 38004, Sept. 19, 1985]
315.471 Annual submission of representations and certifications.
Each Principal Official Responsible for Acquisition (PORA) shall
determine
[[Page 58]]
whether to allow the use of the annual submission of representations and
certifications by offerors. If allowed, the provisions of FAR 14.213
shall be followed.
[55 FR 13536, Apr. 11, 1990]
Subpart 315.5--Unsolicited Proposals
315.505 Content of unsolicited proposals.
(d) Certification by offeror--To ensure against contacts between
Department employees and prospective offerors which would exceed the
limits of advance guidance set forth in FAR 15.504 resulting in an
unfair advantage to an offeror, the principal official responsible for
acquisition (or designee) shall ensure that the following certification
is furnished to the prospective offeror and the executed certification
is included as part of the resultant unsolicited proposal:
Unsolicited Proposal Certification by Offeror
This is to certify, to the best of my knowledge and belief, that:
a. This proposal has not been prepared under Government supervision.
b. The methods and approaches stated in the proposal were developed
by this offeror.
c. Any contact with employees of the Department of Health and Human
Services has been within the limits of appropriate advance guidance set
forth in FAR 15.504.
d. No prior commitments were received from departmental employees
regarding acceptance of this proposal.
Date:__________________________________________________________________
Organization:__________________________________________________________
Name:__________________________________________________________________
Title:_________________________________________________________________
(This certification shall be signed by a responsible official of the
proposing organization or a person authorized to contractually obligate
the organization.)
315.506 Agency procedures.
(a) The principal official responsible for acquisition is
responsible for establishing procedures to comply with FAR 15.506(a).
(b) The principal official responsible for acquisition or his/her
designee shall be the point of contact for coordinating the receipt and
handling of unsolicited proposals. Contacts made outside the contracting
activity shall be promptly coordinated with the principal official
responsible for acquisition or the designee.
315.506-1 Receipt and initial review.
(d) An unsolicited proposal shall not be refused consideration
merely because it was initially submitted as a grant application.
However, contracts shall not be awarded on the basis of unsolicited
proposals which have been rejected for grant support on the ground that
they lack scientific merit.
315.509 Limited use of data.
The legend, Use and Disclosure of Data, prescribed in FAR 15.509(a)
is to be used by the offeror to restrict the use of data for evaluation
purposes only. However, data contained within the unsolicited proposal
may have to be disclosed as a result of a request submitted pursuant to
the Freedom of Information Act. Because of this possibility, the
following notice shall be furnished to all prospective offerors of
unsolicited proposals whenever the legend is provided in accordance with
FAR 15.504(b)(7):
The Government will attempt to comply with the ``Use and Disclosure
of Data'' legend. However, the Government may not be able to withhold a
record (data, document, etc.) nor deny access to a record requested by
an individual (the public) when an obligation is imposed on the
Government under the Freedom of Information Act, 5 U.S.C. 552, as
amended. The Government's determination to withhold or disclose a record
will be based upon the particular circumstances involving the record in
question and whether the record may be exempted from disclosure under
the Freedom of Information Act. Records which the offeror considers to
be trade secrets and commercial or financial information and privileged
or confidential must be identified by the offeror as indicated in the
referenced legend.
Subpart 315.6--Source Selection
315.602 Applicability.
(b) This subpart does not apply to contracts for architect-engineer
services or contracts awarded to the Small Business Administration under
section 8(a) of the Small Business Act.
[[Page 59]]
315.604 Responsibilities.
(d) Personnel participating in the evaluation process must not
discuss or reveal information concerning the evaluations except to an
individual participating in the same evaluation proceedings, and then
only to the extent that the information is required in connection with
the proceedings. Divulging information during the evaluation, selection,
and negotiation phases of the acquisition to offerors or to personnel
not having a need to know could jeopardize the resultant award.
Therefore, the contracting officer must instruct personnel participating
in the evaluations to observe these restrictions and insure that all
personnel understand that unauthorized disclosure of information, no
matter how innocent, could compromise the acquisition process and is
prohibited.
(e) Only the contracting officer or his/her authorized
representative within the contracting office shall conduct discussions
with offerors relative to any aspect of the acquisition.
315.605 Evaluation factors.
(e) The evaluation criteria included in the solicitation serve as
the standard against which all proposals are evaluated. Prospective
offerors rely upon the evaluation criteria in the solicitation in
developing proposals, and they must be assured that the evaluation is
conducted in accordance with those criteria. All personnel involved in
the evaluation process must make sure that the evaluation criteria
contained in the solicitation are the only criteria used in conducting
the evaluation. See FAR 15.406-5(c) and 315.406-5(c) for detailed
guidance on evaluation criteria.
315.607 Disclosure of mistakes before award.
(a) The contracting officer shall require that offerors'
clarifications are in writing.
(c)(3) The chief of the contracting office is authorized to make the
written determination permitting a correction of a mistake in a
proposal.
315.608 Proposal evaluation.
(a)(1) Cost of price evaluation. (See 315.608-77.)
(2) Technical evaluation. (See 315.608-75 and 76.)
(b) The determination required by FAR 15.608(b) shall be made by the
chief of the contracting office.
[50 FR 23130, May 31, 1985, and 50 FR 38004, Sept. 19, 1985, as amended
at 51 FR 44294, Dec. 9, 1986]
315.608-70 Technical evaluation plan.
(a) A technical evaluation plan may be required by the contracting
officer, at his/her discretion, when an acquisition is sufficiently
complex as to warrant a formal plan.
(b) The technical evaluation plan should include at least the
following:
(1) A list of technical evaluation panel members, their
organizations as well as a list of their major consulting clients (if
applicable), their qualifications, and curricula vitae (if available);
(2) A justification for using non-Government technical evaluation
panel members. (Justification is not required if non-Government
evaluators will be used in accordance with standard contracting activity
procedures or policies);
(3) A statement that there is no apparent or actual conflict of
interest regarding any panel member;
(4) A copy of each rating sheet, approved by the contracting
officer, to be used to assure consistency with the evaluation criteria;
and
(5) A brief description of the general evaluation approach.
(c) The technical evaluation plan must be signed by an official
within the program office in a position at least one level above the
project officer or in accordance with contracting activity procedures.
(d) The technical evaluation plan should be submitted to the
contracting officer for review and approval before the solicitation is
issued. The contracting officer shall make sure that the principal
factors relating to the evaluation are reflected in the evaluation
criteria when conducting the review of the plan.
[50 FR 23130, May 31, 1985, and 50 FR 38004, Sept. 19, 1985]