[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2011 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
Title 48
Federal Acquisition Regulations System
________________________
Chapters 3 to 6
Revised as of October 1, 2011
Containing a codification of documents of general
applicability and future effect
As of October 1, 2011
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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Table of Contents
Page
Explanation................................................. v
Title 48:
Chapter 3--Health and Human Services 3
Chapter 4--Department of Agriculture 139
Chapter 5--General Services Administration 209
Chapter 6--Department of State 349
Finding Aids:
Table of CFR Titles and Chapters........................ 435
Alphabetical List of Agencies Appearing in the CFR...... 455
List of CFR Sections Affected........................... 465
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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
The contents of the Federal Register are required to be judicially
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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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
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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
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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
April 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate
volumes. For the period beginning April 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
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``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
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This material, like any other properly issued regulation, has the force
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What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
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CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
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this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
The Federal Register Index is issued monthly in cumulative form.
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the revision dates of the 50 CFR titles.
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INQUIRIES
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Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2011.
[[Page ix]]
THIS TITLE
Title 48--Federal Acquisition Regulations System is composed of
seven 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 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, 2011.
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 first volume, containing chapter 1 (parts 1 to 51), includes an
index to the Federal acquisition regulations.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[Page 1]]
TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
(This book contains chapters 3 to 6)
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Part
chapter 3--Health and Human Services........................ 301
chapter 4--Department of Agriculture........................ 401
chapter 5--General Services Administration.................. 501
chapter 6--Department of State.............................. 601
[[Page 3]]
CHAPTER 3--HEALTH AND HUMAN SERVICES
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SUBCHAPTER A--GENERAL
Part Page
301 HHS Acquisition Regulation System........... 5
302 Definitions of words and terms.............. 17
303 Improper business practices and personal
conflicts of interest................... 21
304 Administrative matters...................... 22
SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
305 Publicizing contract actions................ 31
306 Competition requirements.................... 32
307 Acquisition planning........................ 35
308 Required sources of supplies and services... 42
309 Contractor qualifications................... 43
310 Market research............................. 45
311 Describing agency needs..................... 46
312 Acquisition of commercial items............. 48
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
313 Simplified acquisition procedures........... 49
314 Sealed bidding.............................. 50
315 Contracting by negotiation.................. 51
316 Types of contracts.......................... 69
317 Special contracting methods................. 71
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
319 Small business programs..................... 76
322 Application of labor laws to Government
acquisitions............................ 78
323 Environment, energy and water efficiency,
renewable energy technologies,
occupational safety, and drug-free
workplace............................... 78
324 Protection of privacy and freedom of
information............................. 79
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
327 Patents, data, and copyrights............... 82
328 Bonds and insurance......................... 82
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330 Cost accounting standards................... 82
331 Contract cost principles and procedures..... 82
332 Contract financing.......................... 83
333 Protests, disputes, and appeals............. 84
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
334 Major system acquisition.................... 89
335 Research and development contracting........ 91
337 Service contracting--general................ 92
339 Acquisition of information technology....... 93
SUBCHAPTER G--CONTRACT MANAGEMENT
342 Contract administration..................... 98
SUBCHAPTER H--CLAUSES AND FORMS
352 Solicitation provisions and contract clauses 103
353 Forms....................................... 129
SUBCHAPTERS I-L [RESERVED]
SUBCHAPTER M--HHS SUPPLEMENTATIONS
370 Special programs affecting acquisition...... 131
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SUBCHAPTER A_GENERAL
PART 301_HHS ACQUISITION REGULATION SYSTEM
Subpart 301.1_Purpose, Authority, and Issuance
Sec.
Sec. 301.101 Purpose.
Sec. 301.103 Authority.
Sec. 301.106 Office of Management and Budget approval under the
Paperwork Reduction Act.
Subpart 301.2_Administration
Sec. 301.270 Executive Committee for Acquisition.
Subpart 301.4_Deviations From the FAR
Sec. 301.403 Individual deviations.
Sec. 301.404 Class deviations.
Sec. 301.470 Procedure.
Subpart 301.6_Career Development, Contracting Authority, and
Responsibilities
Sec. 301.602 Contracting Officers.
Sec. 301.602-3 Ratification of unauthorized commitments.
Sec. 301.603 Selection, appointment, and termination of appointment of
Contracting Officers.
Sec. 301.603-1 General.
Sec. 301.603-2 Selection and appointment.
Sec. 301.603-3 Interim appointments.
Sec. 301.603-4 Termination of appointments.
Sec. 301.603-70 Delegation of Contracting Officer responsibilities.
Sec. 301.603-71 Waivers to warrant standards.
Sec. 301.603-72 FAC-C and HHS SAC certification requirements.
Sec. 301.603-73 Additional HHS training requirements.
Sec. 301.603-74 Requirement for retention of FAC-C and HHS SAC
certification.
Sec. 301.604 Training and certification of Contracting Officers'
Technical Representatives.
Sec. 301.604-70 General.
Sec. 301.604-71 HCA authorities and responsibilities.
Sec. 301.604-72 Requirements for certification maintenance.
Sec. 301.604-73 Certification policy exception.
Sec. 301.604-74 Additional COTR training requirements.
Sec. 301.605 Contracting Officer designation of Contracting Officer
Technical Representative.
Sec. 301.606 Training requirements for Project Officers.
Sec. 301.606-70 General.
Sec. 301.606-71 Project Officer training.
Sec. 301.606-72 Delegation of authority to HCAs.
Sec. 301.606-73 Requirements for continuous learning maintenance.
Sec. 301.606-74 Training policy exception.
Sec. 301.606-75 Additional Project Officer training requirements.
Sec. 301.607 Certification of Program and Project Managers.
Sec. 301.607-70 General.
Sec. 301.607-71 FAC-P/PM levels and requirements.
Sec. 301.607-72 Applicability.
Sec. 301.607-73 Certification waivers.
Sec. 301.607-74 Certification transfers.
Sec. 301.607-75 Maintenance of FAC-P/PM certification.
Sec. 301.607-76 FAC-P/PM application process.
Sec. 301.607-77 Governance.
Sec. 301.607-78 Contracting Officer designation of a Program/Project
Manager as the Contracting Officer's Technical Representative.
Sec. 301.608 Training requirements for purchase cardholders, Approving
Officials, and Agency/Organization Program Coordinators.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 301.1_Purpose, Authority, and Issuance
Sec. 301.101 Purpose.
(a) The Department of Health and Human Services (HHS) Acquisition
Regulation (HHSAR) establishes uniform HHS acquisition policies and
procedures that conform to the Federal Acquisition Regulations (FAR)
System.
(b) The HHSAR implements FAR policies and procedures and provides
additional policies and procedures that supplement the FAR.
(c) The HHSAR contains HHS policies and procedures that govern the
acquisition process or otherwise control acquisition relationships
between HHS' contracting activities and contractors.
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21509, Apr. 26, 2010]
Sec. 301.103 Authority.
(b) The Assistant Secretary for Financial Resources (ASFR)
prescribes the HHSAR under the authority of 5
[[Page 6]]
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.
(c) 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.''
Sec. 301.106 Office of Management and Budget approval under the
Paperwork Reduction Act.
(a) The Paperwork Reduction Act of 1980 (44 U.S.C 3501 et seq.)
imposes a requirement on Federal agencies to obtain approval from the
Office of Management and Budget (OMB) before collecting the same
information from 10 or more members of the public.
(b) The following OMB control numbers apply to the information
collection and recordkeeping requirements contained in this chapter:
------------------------------------------------------------------------
OMB control
HHSAR segment No. No.
------------------------------------------------------------------------
315.4...................................................... 0990-0139
342.7101................................................... 0990-0131
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
352.270-8.................................................. 0990-0128
352.270-9.................................................. 0990-0128
370.1...................................................... 0990-0129
370.2...................................................... 0990-0129
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(c) The Contracting Officer shall insert the clause in 352.201-70,
Paperwork Reduction Act, in solicitations, contracts, and orders that
include a requirement to collect the same information from 10 or more
persons.
Subpart 301.2_Administration
Sec. 301.270 Executive Committee for Acquisition.
(a) The Associate Deputy Assistant Secretary for Acquisition
(Associate DAS for Acquisition) has established the Executive Committee
for Acquisition (ECA) to facilitate the planning, development, and
implementation of HHS acquisition policies and procedures and to share
successful acquisition practices.
(b) The ECA consists of members and alternates from the following
organizations:
(1) ASFR/Office of Grants and Acquisition Policy and Accountability
(OGAPA)/Division of Acquisition (DA).
(2) Agency for Healthcare Research and Quality (AHRQ).
(3) Assistant Secretary for Preparedness and Response/Office of
Acquisitions Management, Contracts and Grants (ASPR/OAMCG).
(4) Centers for Disease Control and Prevention (CDC).
(5) Centers for Medicare and Medicaid Services (CMS).
(6) Food and Drug Administration (FDA).
(7) Health Resources and Services Administration (HRSA).
(8) Indian Health Service (IHS).
(9) National Institutes of Health (NIH).
(10) Program Support Center (PSC).
(11) Substance Abuse and Mental Health Services Administration
(SAMHSA).
(c) The Associate DAS for Acquisition is the Chair of the ECA. The
Chair will call all meetings and direct all ECA activities.
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21509, Apr. 26, 2010]
Subpart 301.4_Deviations From the FAR
Sec. 301.403 Individual deviations.
Contracting activities shall prepare requests for individual
deviations to either the FAR or HHSAR in accordance with 301.470.
Sec. 301.404 Class deviations.
Contracting activities shall prepare requests for class deviations
to either the FAR or HHSAR in accordance with 301.470.
Sec. 301.470 Procedure.
(a) Contracting activities shall prepare deviation requests in
memorandum form and forward them through the Head of the Contracting
Activity (HCA) to the Associate DAS for Acquisition. The Associate DAS
for
[[Page 7]]
Acquisition (non-delegable) is the official authorized to approve all
deviation requests. Contracting activities may request a deviation
telephonically or by e-mail in an exigent situation, but shall confirm
the request by memorandum as soon as possible.
(b) A deviation request shall clearly set forth the--
(1) Nature of the deviation, including what contract(s)/
contractor(s) is involved;
(2) Identification of the FAR or HHSAR citation from which the
deviation is needed;
(3) Circumstances under which the deviation will be used;
(4) Intended effect of the deviation;
(5) Period of applicability;
(6) Rationale for the deviation (Note: The Contracting Officer shall
include a copy of pertinent background papers, such as a contractor's
request, as part of the deviation request.); and
(7) Suggested wording for the deviation, if applicable.
Subpart 301.6_Career Development, Contracting Authority, and
Responsibilities
Sec. 301.602 Contracting Officers.
Sec. 301.602-3 Ratification of unauthorized commitments.
(b) Policy.
(1) The Government is not bound by agreements with, or contractual
commitments made to, prospective contractors by individuals who do not
have delegated contracting authority. However, an authorized official
may later ratify and execute otherwise proper contracts that were made
by individuals without contracting authority or by Contracting Officers
in excess of their delegated authority. The ratification shall be in the
form of a written document that clearly states that ratification of a
previously unauthorized act is intended.
(2) The HCA is the official authorized to ratify an unauthorized
commitment--but see paragraph (b)(3) of this section.
(3) The HCA may redelegate ratification authority for actions up to
$100,000 to the Chief of the Contracting Office (CCO). No other
redelegations are authorized.
(c) Limitations.
(5) The concurrence of legal counsel concerning an unauthorized
commitment is optional. If a contracting activity determines that a
legal review is necessary, the HCA or CCO shall coordinate the request
for ratification with the Office of General Counsel (OGC), General Law
Division (GLD).
(e) Procedures.
(1) The individual who is responsible for the unauthorized
commitment shall provide the reviewing Contracting Officer all records
and documents concerning the commitment and a complete written statement
of facts, including a description of the requirement; the estimated or
agreed upon price; the funds citation; an explanation of why the
contracting office was not used and why the proposed contractor was
selected; a list of other sources considered; and a statement as to
whether the contractor has commenced work or an item has been delivered.
(2) The Contracting Officer shall review the submitted material and,
if the Contracting Officer determines that the ratification request has
merit, prepare it for ratification. The Contracting Officer shall
forward the ratification document and related materials to the HCA or
CCO, as appropriate, with any comments or information which the
approving official should consider in evaluating the ratification
request.
(3) If the HCA or CCO approves the ratification request, the
Contracting Officer shall issue a purchase order or contract, as
appropriate, upon return of the approved ratification document and file.
Sec. 301.603 Selection, appointment, and termination of appointment of
Contracting Officers.
Sec. 301.603-1 General.
(a) The HCA (non-delegable) shall select, appoint, and terminate the
appointment of Contracting Officers--i.e., those individuals who are
authorized to obligate the Government to the expenditure of funds for
contracts and orders with dollar values that exceed (or
[[Page 8]]
are expected to exceed) the micro-purchase threshold. The procedures for
selecting and appointing Contracting Officers apply to HHS employees.
HCAs may not issue HHS Contracting Officer warrants to contractor
personnel. OPDIVs shall follow local procedures in the event that the
signature of another authorized official, in addition to that of the
HCA, is required to appoint or terminate the appointment of Contracting
Officers.
(b) The HCA shall use Standard Form (SF) 1402, ``Certificate of
Appointment,'' (also known as a warrant) to appoint personnel, whether
in the General Schedule (GS) 1102 series or other series, as Contracting
Officers. The SF 1402 shall indicate the Contracting Officer's warrant
level--i.e., maximum dollar signature authority (e.g., $1 million or
``unlimited'') and any other limitations or restrictions. The HCA shall
make changes to a Contracting Officer appointment (other than a
termination of an appointment as provided in 301.603-4) by issuing a
revised SF 1402. FAR 1.603-1 prescribes the requirements for preparing
and maintaining Contracting Officer warrants.
(c) Before an HCA may appoint an individual as a Contracting
Officer, the individual must be certified in accordance with either the
Federal Acquisition Certification in Contracting (FAC-C) program or the
HHS Simplified Acquisition Certification (SAC) program, as appropriate,
at the level required for the warrant authority requested. See 301.603-
72 and the HHS Contracting Workforce Training and Certification
Handbook.
(d) The dollar amount of an individual transaction determines
whether a Contracting Officer has the authority to sign it in accordance
with the delegated authority specified on the SF 1402. For new or
follow-on awards, the dollar amount of an individual transaction is the
amount obligated at the time of contract or order award plus any
potential option amounts or future funding amounts established by the
transaction. However, under an existing contract or order, when an
option is subsequently exercised or a contact or order is otherwise
modified to add funding, the dollar amount of the modification
(individual transaction) determines whether a Contracting Officer has
the necessary delegated authority to sign it.
(e) For individuals that will exercise acquisition authorities
(other than solely purchase card authorities) at or below the micro-
purchase threshold, the HCA may--
(1) Use a document other than the SF 1402, such as a memorandum,
that indicates a maximum dollar signature authority for individual
transactions; and
(2) Determine training requirements for individuals who will
exercise acquisition authorities at dollar levels below the micro-
purchase threshold level.
Sec. 301.603-2 Selection and appointment.
Contracting activities shall provide nominations for appointment of
Contracting Officers through appropriate acquisition channels to the HCA
for review. The HCA shall appoint an individual as a Contracting Officer
only when a valid organizational need is demonstrated and after
considering such factors as volume of actions, complexity of work, and
structure of the requesting organization. The HCA shall also ensure that
a Contracting Officer candidate meets the FAC-C or HHS SAC certification
requirements, as appropriate. Consistent with FAR 1.603-2, the HCA shall
determine the documentation required when the requested appointment and
authority will not exceed the micro-purchase threshold.
Sec. 301.603-3 Interim appointments.
If it is essential to appoint an individual as a Contracting Officer
who does not yet fully meet the FAC-C or HHS SAC certification
requirements for the signature authority sought, the HCA (non-delegable)
may make an interim appointment for up to 2 years. If an extension of
time has been granted, but the individual does not complete the
certification requirements by the extended date, the HCA's approval for
the interim appointment will automatically terminate on that date.
Sec. 301.603-4 Termination of appointments.
The HCA shall terminate or revoke Contracting Officer appointments
in accordance with FAR 1.603-4.
[[Page 9]]
Sec. 301.603-70 Delegation of Contracting Officer responsibilities.
(a) Contracting Officers may re-delegate their acquisition
responsibilities that do not involve the obligation or deobligation of
funds, but involve the expenditure of previously obligated funds (such
as approval of contractor scientific meeting travel and subcontract
consent) to acquisition staff (for example, those in the GS-1100 series)
by means of a written memorandum that clearly delineates the delegation
and its limits. See 301.604 for responsibilities that Contracting
Officers may delegate to technical personnel.
(b) Contracting Officers may designate individuals as ordering or
approving officials to make purchases or place/approve orders under
blanket purchase agreements (BPAs), indefinite-delivery, indefinite
quantity (IDIQ) contracts, or other pre-established mechanisms. Ordering
officials are not Contracting Officers.
Sec. 301.603-71 Waivers to warrant standards.
There may be an unusual circumstance that requires issuance of a
warrant to an individual who does not fully meet the FAC-C or HHS SAC
certification program requirements. Contracting activities shall provide
any request for a waiver of the FAC-C program requirements and policies
in writing to the Senior Procurement Executive (SPE), through the HCA,
for review and approval. The SPE (non-delegable) will either approve or
disapprove in writing the request for waiver. The HCA (non-delegable)
may approve or disapprove a waiver of the HHS SAC program requirements.
Sec. 301.603-72 FAC-C and HHS SAC certification requirements.
(a) The FAC-C certification program is available to all acquisition
staff who are/will be involved as Contracting Officers or Contract
Specialists in acquisitions exceeding the simplified acquisition
threshold. Personnel who, as part of prior certification programs, have
completed some or all of the required training or have attained
certification thereunder are not required to re-take training courses,
but shall follow FAC-C training requirements when considering additional
or required core training, if needed. See 301.603-74 for information
regarding retention of certification, including the requirement to earn
continuous learning points (CLPs). FAC-C certification also does not
apply to--
(1) The SPE;
(2) Senior level officials responsible for delegating acquisition
authority;
(3) Personnel who are not in the GS-1102 series whose warrants are
used to acquire emergency goods and services; or
(4) Personnel who are not in the GS-1102 series whose warrants are
so limited as to be outside the scope of this program, as determined by
the Chief Acquisition Officer (CAO). (Note: The HHS CAO has determined
that individuals with warrants which are limited to simplified
acquisitions are deemed to be outside the scope of the FAC-C program.)
(b) HHS does not require personnel with Contracting Officer warrants
issued prior to January 1, 2007 to be FAC-C certified unless they are
seeking a change in authority on or after that date. Individuals
applying for a new Contracting Officer warrant or an increase in warrant
authority on or after January 1, 2007, regardless of GS series, must be
FAC-C certified at the level appropriate for the warrant authority
sought. To obtain an unlimited warrant, FAC-C Level III certification is
required. (Note: New Contracting Officer warrants are defined in the
Office of Federal Procurement Policy's (OFPP's) FAC-C memorandum, dated
January 20, 2006, as warrants issued to employees for the first time at
a department or agency.)
(c) The FAC-C certification is based on three sets of requirements:
Education, training, and experience, and the requirements are
cumulative--i.e., an individual must meet the requirements of each
previous certification level before attaining a higher level
certification. The FAC-C certification requirements, including
additional HHS-specific training requirements for certain types of
acquisitions, are specified in the HHS Contracting Workforce Training
and Certification Handbook.
[[Page 10]]
(d) HHS SAC certification is based on three sets of requirements:
Training, experience, and satisfactory performance rating. Personnel who
are involved in the award of simplified acquisitions must meet the
appropriate HHS SAC certification requirements. (Note: While personnel
who are FAC-C certified are not required to obtain HHS SAC certification
in order to award simplified acquisitions, they should obtain
appropriate training before doing so.) The HHS SAC certification
requirements, including additional HHS-specific training requirements
for certain types of acquisitions, are specified in the HHS Contracting
Workforce Training and Certification Handbook.
Sec. 301.603-73 Additional HHS training requirements.
HHS acquisition personnel are required to complete, as applicable,
the additional training requirements specified below. These courses may
be used as electives for the purpose of satisfying FAC-C requirements or
as continuous learning for maintenance of FAC-C or SAC certifications.
(a) Earned value management training. Effective January 1, 2010, all
personnel in the GS-1102 series who are responsible for, or may become
responsible for, the award or administration of any contract to which
earned value management (EVM) is applied pursuant to 334.201(a) or (b)
must successfully complete an EVM training course before they commence
administration of the contract or are authorized to award the contract.
After completion of the initial course, a refresher course is required
every 2 years. This course is in addition to the training requirements
for FAC-C certification at the specified levels. Determination of course
suitability shall be made by the Operating Division (OPDIV) HCA, in
conjunction with HHS' Office of the Chief Information Officer (OCIO) or
Office of Facilities Management and Policy (OFMP), as appropriate. To be
eligible, the basic and refresher courses must each be 8 hours or more
in length.
(b) Performance based acquisition training. Effective January 1,
2010, all GS-1102s, who award or administer service contracts, are
required to complete a Performance-Based Acquisition (PBA) course prior
to assuming such responsibilities. Refresher training in PBA is required
every 4 years. To be eligible, a course must be 8 hours or more in
length. Determination of course suitability shall be made by the HCA.
(c) Federal appropriations law training. Effective January 1, 2010,
all GS-1102s and GS-1105s are required to complete both HHS University's
classroom-based and on-line Federal appropriations law course, by
January 1, 2011 (for current employees) and within 1 year of entering on
duty (for new employees). Employees are required to take the HHS
University on-line course as refresher training every year.
Determination of course equivalency shall be made by the HCA.
(d) Green purchasing training. Effective January 1, 2010, all GS-
1102s and GS-1105s are required to complete green purchasing training by
January 1, 2011 (for current employees) and within 1 year of entering on
duty (for new employees). Refresher training is required every 2 years.
To be eligible, a course must be 4 hours or more in length.
Determination of course suitability shall be made by the HCA.
(e) Section 508 training. When the HHS Office on Disability (OD) so
requires, all GS-1102s, GS-1105s and GS-1106s who award or administer
acquisitions that involve electronic information technology (EIT)
products or services (subject to Section 508 of the Rehabilitation Act
of 1973 and pertinent HHSAR provisions), must complete all applicable OD
sponsored training. For information on frequency, timing, and duration
of the training requirement, personnel shall consult with the HHS OD.
(f) Training policy exceptions--(1) EVM training. In the event that
there is an urgent requirement for a Contracting Officer/Contract
Specialist to award or administer a project to which EVM will be
applied, and the individual has not yet met the EVM training
requirement, the HCA (non-delegable) may authorize the individual to
perform the position duties, provided that the individual meets the
training requirement within 9 months from the date of assignment to the
contract. If the individual does not complete the training requirement
within 9 months, the
[[Page 11]]
HCA's approval for the individual's assignment to the contract will
automatically terminate on that date. The Contract Specialist is not
required to take the class as long as the Contract Specialist is working
under the direction of a Contracting Officer who has taken an EVM
course.
(2) Other additional HHS training. The HCA (non-delegable) may grant
a time extension of up to 9 months to an individual to complete the PBA,
Federal appropriations law, green purchasing, and Section 508 training
requirements, including completion of refresher training. If the
individual does not complete the training requirement within the
extension period, the HCA's approval will automatically terminate on
that date.
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21509, Apr. 26, 2010]
Sec. 301.603-74 Requirement for retention of FAC-C and HHS SAC
certification.
To maintain FAC-C certification, all warranted Contracting Officers,
regardless of series, as well as Contract Specialists, must earn 80 CLPs
every 2 years. To maintain HHS SAC certification, all individuals with
delegated Contracting Officer authority, including those in the GS-1102,
GS-1105, GS-1106, and non-1100 series, must earn a minimum of 40 hours
(CLPs) every 2 years after completing all mandatory training
requirements. FAC-C and HHS SAC certification will expire if the CLPs
are not earned every 2 years (from the date of initial certification or
re-certification) and, if applicable, may result in a loss of warrant
authority. (Note: The certification programs' continuous learning
requirement applies to all applicable personnel, including those who
were certified under prior certification programs.)
Sec. 301.604 Training and certification of Contracting Officers'
Technical Representatives.
Sec. 301.604-70 General.
In accordance with the Federal Acquisition Certification for
Contracting Officers' Technical Representatives (FAC-COTR) program, HHS
has established a training program for certification and designation of
personnel as COTRs--see HHS' Federal Acquisition Certification for
Contracting Officers' Technical Representatives Program Handbook (COTR
Handbook), dated January 2009, for information on the methods for
earning FAC-COTR certification. See also 302.101(c) for further
information regarding the definition of a COTR and when designation of a
COTR is appropriate. All references to COTRs also apply to their
alternates.
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21509, Apr. 26, 2010]
Sec. 301.604-71 HCA authorities and responsibilities.
(a) HCAs are authorized to determine (1) equivalencies for the Basic
Contracting Officer's Technical Representative Course; (2) course
prerequisites; and (3) approve completion of CLP continuous learning
activities, education, and training for maintenance of COTR
certification. This authority does not apply to EVM training--see
301.603-73. Course equivalencies must meet the Federal Acquisition
Institute's (FAI's) required COTR competencies. HCAs may re-delegate the
authorities in (1) and (2) to OPDIV Acquisition Career Managers (ACMs)
or other comparable officials.
(b) In addition to the authorities specified in 301.604-71(a), HCAs
or their designees (except where the authority is shown as non-
delegable) are responsible for--
(1) Reviewing a candidate's qualifications to be a COTR;
(2) Granting, suspending, denying, and revoking COTR certifications
and their continuance;
(3) Authorizing (non-delegable) an individual to perform COTR duties
on an interim basis for up to 90 days--see 301.604-73; and
(4) Determining (non-delegable) on a case-by-case basis whether to
postpone (for up to 90 days) withdrawal of any interim COTR delegation
for failure of a candidate to qualify for certification--see 301.604-73.
Sec. 301.604-72 Requirements for certification maintenance.
Maintaining HHS FAC-COTR certification requires at least 40 relevant
CLPs every 2 years. See Appendix A of
[[Page 12]]
OFPP's FAC-COTR memorandum, dated November 26, 2007, and HHS' COTR
Handbook for information on CLPs.
[75 FR 21509, Apr. 26, 2010]
Sec. 301.604-73 Certification policy exception.
(a) In the event that an individual who is not currently certified
under HHS' FAC-COTR program is urgently required to serve as a COTR, the
head of the sponsoring program office (Program Manager) or designee
(e.g., the immediate supervisor) may request, and the HCA (non-
delegable) may authorize, the individual to perform the designated
duties on an interim basis for up to 6 months, provided that--
(1) The individual agrees to become certified during that period and
provides evidence of training course registration; and
(2) Prior to assignment to the contract, the individual meets with
the cognizant Contracting Officer to discuss the role and specific
responsibilities of a COTR and the interrelationships, as applicable,
among the Project Officer, Contracting Officer, Program/Project Manager,
and COTR functions.
(b) If an extension has been granted, but the individual does not
complete the training by the extended date, the HCA's approval for the
individual's assignment to the contract will automatically terminate on
that date.
Sec. 301.604-74 Additional COTR training requirements.
(a) See HHS' COTR Handbook for information on additional COTR
training requirements.
(b) Training policy exceptions--(1) EVM training. In the event that
there is an urgent requirement for a COTR to administer a contract to
which EVM will be applied, and the individual has not yet met the EVM
training requirement, the HCA (non-delegable) may authorize the
individual to perform the position duties, provided that the individual
meets the training requirement within 9 months from the date of
assignment to the contract. If the individual does not complete the
training requirement within 9 months, the HCA's approval for the
individual's assignment to the contract will automatically terminate on
that date. In addition, during any extension period, the COTR must work
under the direction of a COTR, or Program/Project Manager who has taken
an EVM course.
(2) Other additional HHS training. The HCA (non-delegable) may grant
a time extension of up to 9 months to a COTR to complete the PBA,
Federal appropriations law, and green purchasing training requirements,
including completion of refresher training. If the individual does not
complete the training requirement within the extension period, the HCA's
approval will automatically terminate on that date.
[75 FR 21509, Apr. 26, 2010]
Sec. 301.605 Contracting Officer designation of Contracting Officer
Technical Representative.
The Contracting Officer shall ensure that a COTR candidate is
currently certified under HHS' FAC-COTR program before delegating
authority to that individual to act as a COTR. Even if an individual is
FAC-COTR-certified, a candidate becomes a COTR only when a Contracting
Officer provides in writing the authorities the individual may exercise
for a specified contract or order. Authority for such designations rests
solely with the Contracting Officer. The Contracting Officer shall
retain in the contract or order file the individual's active FAC-COTR
certificate. In the event that the HCA has granted an exception--see
301.604-73, the Contracting Officer shall include the HCA's approval in
the file.
Sec. 301.606 Training requirements for Project Officers.
Sec. 301.606-70 General.
HHS has established a program for training personnel for
certification and designation as Project Officers. See 302.101(g) for
further information regarding the definition of a Project Officer and
when designation of a Project Officer is appropriate. All references to
Project Officers also apply to their alternates. Program Managers or
their designees are authorized to designate individuals to serve as
Project Officers. (Note: If an individual will also serve as the COTR
for a proposed project, the
[[Page 13]]
individual shall comply with the training certification requirements for
COTRs--see 301.604.)
Sec. 301.606-71 Project Officer training.
Before an individual may perform the duties of a Project Officer,
including development of an Acquisition Plan (AP) or other acquisition
request documentation--see 307.71, for a proposed project, the Program
Manager or designee shall designate an individual as a Project Officer
in writing by means of a memorandum to the Project Officer candidate
with a copy to the cognizant Contracting Officer. A Project Officer must
successfully complete HHS University's Basic Contracting Officer's
Technical Representative Course or equivalent and any OPDIV-specific
course prerequisites. The Project Officer must provide a course
completion certificate to the Contracting Officer with any AP or other
acquisition request documentation submitted. See HHS' COTR Handbook for
additional information on the basic training requirement for Project
Officers and guidance on the training requirement for technical proposal
evaluators in 315.305(a)(3)(ii).
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21509, Apr. 26, 2010]
Sec. 301.606-72 Delegation of authority to HCAs.
HCAs are authorized to determine equivalencies for the Basic
Contracting Officer's Technical Representative Course and any OPDIV-
specific course prerequisites. This authority may be re-delegated to
OPDIV acquisition ACMs or other comparable officials.
Sec. 301.606-73 Requirements for continuous learning maintenance.
Designated Project Officers require at least 40 relevant CLPs every
2 years. See HHS' COTR Handbook for information on CLPs.
[75 FR 21510, Apr. 26, 2010]
Sec. 301.606-74 Training policy exception.
(a) In the event that an individual who has not successfully
completed the required training course is urgently required to serve as
a Project Officer, the Program Manager or designee may authorize the
individual to perform the designated duties on an interim basis for up
to 6 months, provided that--
(1) The individual agrees to take the Basic Contracting Officer's
Technical Representative course during that period and provides evidence
of course registration; and
(2) The individual meets, prior to assignment to the project, with
the cognizant Contracting Officer to discuss the specific role and
responsibilities of a Project Officer and the interrelationships, as
applicable, among the Project Officer, Contracting Officer, Program/
Project Manager, and COTR functions.
(b) If an extension of time has been granted, but the individual
fails to complete the training by the extended date, the Program
Manager's or designee's approval for the individual's assignment to the
project will automatically terminate on that date.
[74 FR 62398, Nov. 27, 2009. Redesignated at 75 FR 21509, Apr. 26, 2010]
Sec. 301.606-75 Additional Project Officer training requirements.
(a) See HHS' COTR Handbook for information on additional training
requirements.
(b) Training policy exceptions--(1) EVM training. In the event that
there is an urgent requirement to assign a Project Officer to a contract
project to which EVM will be applied, and the individual has not yet met
the EVM training requirement, the HCA (non-delegable) may authorize the
individual to perform the position duties, provided that the individual
meets the training requirement within 3 months from the date of
submission of the AP or other acquisition request documentation to the
contracting office. If the individual does not complete the training
requirement within the extension period, the HCA's approval for the
individual's assignment to the project will automatically terminate on
that date. In addition, during any extension period, the Project Officer
must work under the direction of a Project Officer, COTR, or Program/
Project Manager who has taken an EVM course.
(2) Other additional HHS training. The HCA (non-delegable) may grant
a time extension of up to 9 months to a Project Officer to complete the
PBA,
[[Page 14]]
Federal appropriations law, and green purchasing training requirements,
including completion of refresher training. If the individual does not
complete the training requirement within the extension period, the HCA's
approval will automatically terminate on that date.
[75 FR 21510, Apr. 26, 2010]
Sec. 301.607 Certification of Program and Project Managers.
Sec. 301.607-70 General.
In accordance with the Federal Acquisition Certification--Program
and Project Managers (FAC-P/PM) program, HHS has established a
certification program for Program or Project Managers. See HHS' Federal
Acquisition Certification--Program and Project Managers Handbook (P/PM
Handbook) for information on the methods for earning FAC-P/PM
certification.
Sec. 301.607-71 FAC-P/PM levels and requirements.
(a)(1) The FAC-P/PM certification program specifies three different
levels of certification, depending on the core competency, training, and
experience required to manage different types of acquisitions--
(i) Entry/Apprentice--Level I;
(ii) Mid-level/Journeyman--Level II; and
(iii) Senior/Expert--Level III.
(2) Each FAC-P/PM certification level is independent of the others--
i.e., applicants for the Senior/Expert level need not have been
certified at the Mid-level/Journeyman or Entry/Apprentice levels.
General and specific core competencies, training, and required
experience vary by certification level. (Note: Individuals certified
under the FAC-P/PM program meet the general competency and experience
standards for P/PM certification. However, IT Program and Project
Managers should attain/demonstrate IT-specific P/PM requirements. See
Appendix C, Federal Acquisition Certification--Program and Project
Managers--Information Technology Technical Competencies, in the P/PM
Handbook for additional information.
(b)(1) Competencies. An applicant can satisfy the competency
requirements through:
(i) Successful completion of training;
(ii) Completion of comparable education or certification programs;
(iii) Demonstration of knowledge, skills, and abilities; or
(iv) Any combination of these three.
(2) The FAI describes the following three sets of general core
competencies on its Web site:
(3) General Business Competencies: Includes decision-making,
interpersonal skills, oral communication, team-building, and writing.
(4) Technical Competencies: Includes contracting, financial
management, quality assurance, and risk management.
(5) Essential Competencies and Proficiencies: Includes management
processes, systems engineering, test and evaluation, contracting, and
business.
(6) Specific core competencies also apply to the three certification
levels. See Chapter 2, Federal Acquisition Certification--Program and
Project Managers--Requirements and Performance Accountability, in the P/
PM Handbook for additional information.
(c) Training. (1) Suggested training includes coursework, varying
from 16-24 hours in duration, in:
(i) Acquisition;
(ii) Project management;
(iii) leadership and interpersonal skills;
(iv) Government-specific training; and
(v) Earned value management and cost estimating.
(2) The depth of the training for each course required may vary by
certification level.
(d) Experience. Experience requirements vary by certification level.
For example, for certification at the Entry/Apprentice--Level I, at
least 1 year of project management experience within the last 5 years is
required. The Mid-level/Journeyman--Level II requires at least 2 years
of program or project management experience within the last 5 years. The
Senior/Expert--Level III requires at least 4 years of program and
project management experience on Federal projects within the last 5
years.
[[Page 15]]
(e) Additional OPDIV guidance. OPDIVs may issue supplemental
guidance and requirements for selection and assignment of Program and
Project Managers and require additional skills and competencies to meet
organizational or mission needs. However, OPDIVs may not reduce the
requirements specified in the P/PM Handbook.
Sec. 301.607-72 Applicability.
(a) The FAC-P/PM certification prerequisites and continuous learning
requirements apply to all HHS employees who seek to obtain a FAC-P/PM
certification. Although obtaining a FAC-P/PM certification qualifies
employees to serve as a Program or Project Manager, it does not ensure
their selection or designation as such. (Note: Contractors and their
employees are not eligible to be certified or to serve as Program or
Project Managers.)
(b) Mandatory certification is limited to major and non-major IT and
construction capital investment acquisitions. Consistent with OFPP
guidance, HHS requires FAC-P/PM Level III certification for Program and
Project Managers responsible for major IT and construction capital
investments--i.e., those requiring preparation of an OMB Exhibit 300,
HHS Form 300, or equivalent. An individual must obtain FAC-P/PM Level
III certification within 1 year from the date of being assigned to such
a major capital investment. Also, HHS requires that an individual obtain
FAC-P/PM Level II or I certification for non-major IT and construction--
i.e., tactical or supporting, capital investments, respectively, within
2 years from the date of being assigned to such a non-major capital
investment. See Appendix A, Federal Acquisition Certification--Program
and Project Managers--HHS Projects and Programs with Associated
Certification Levels, in the P/PM Handbook for additional information
regarding major and non-major IT and construction capital investments.
FAC-P/PM certification for other types of investments [e.g., advanced
research and development (R & D)] is encouraged, but is not mandatory.
Sec. 301.607-73 Certification waivers.
(a) Waivers to certification requirements may be approved in certain
situations. Waivers for additional time to complete certification
requirements are not necessary for the first year following an
assignment to a major IT or construction capital investment and for 2
years following an assignment to a non-major capital investment. For
waivers beyond those periods (for up to 1 additional year), the HHS
Chief Information Officer (CIO) (for IT programs and projects) and the
Deputy Assistant Secretary for Facilities Management and Policy (DASFMP)
(for construction programs and projects) are delegated authority to
approve waiver requests. The HHS CAO is the only individual authorized
to approve waiver requests for additional time beyond the initial 1-year
waiver period.
(b) Approval of a waiver request does not relieve an individual from
meeting the certification requirements. Also, unlike FAC-P/PM
certifications, waivers issued by other Federal departments and agencies
do not transfer to HHS, since a waiver is agency-specific.
Sec. 301.607-74 Certification transfers.
(a) HHS recognizes and accepts FAC-P/PM certifications issued by
other Federal departments and agencies. In addition, HHS complies with
FAI determinations as to which certifications by organizations outside
the Federal government are eligible for full or partial consideration
under FAC-P/PM. See FAI's Web site, and Chapter 3, Federal Acquisition
Certification--Program and Project Managers--Application and
Certification Procedures, in the P/PM Handbook for additional
information.
(b) A certification transfer should not be initiated when an
individual, who holds a current FAC-P/PM certification from another
Federal department or agency, becomes an HHS employee. Instead, the
individual must apply for recertification (which will result in issuance
of an HHS certification) at the time the candidate's immediate
supervisor performs the bi-annual assessment to determine whether the
individual has met the HHS FAC-P/PM CLP requirements.
[[Page 16]]
Sec. 301.607-75 Maintenance of FAC-P/PM certification.
(a) FAC-P/PM certification lasts for 2 years. To maintain FAC-P/PM
certification, HHS Program and Project Managers are required to earn 80
CLPs of skills currency every 2 years, starting from the date of their
initial certification or recertification, and document completion of all
training. If the required CLPs are not earned within each 2-year period,
a FAC-P/PM certification will lapse. Lapsed certifications may be
reinstated when 80 CLPs have been accumulated.
(b) Continuous learning activities related to FAC-P/PM include, but
are not limited to--
(1) Training activities, such as teaching, self-directed study, and
mentoring;
(2) Courses completed to achieve certification at the next higher
level;
(3) Professional activities, such as attending/speaking/presenting
at professional seminars/symposia/conferences, publishing papers, and
attending workshops;
(4) Educational activities, such as formal training and formal
academic programs; and
(5) Experience, such as developmental or rotational assignments.
See Appendix F, Federal Acquisition Certification--Program and
Project Managers--Guidance on Meeting Requirements for Continuous
Learning Points, in the P/PM Handbook for additional information.
Sec. 301.607-76 FAC-P/PM application process.
The P/PM Handbook contains application procedures and forms to be
completed for basic certification; certification transfer; certification
through fulfillment; recertification; and certification waiver.
Applicants for HHS FAC-P/PM certification actions shall comply with the
requirements and procedures specified in the P/PM Handbook and refer any
questions to their OPDIV ACM for resolution.
Sec. 301.607-77 Governance.
The Departmental ACM, in ASFR/OGAPA/DA, serves as the Departmental
FAC-P/PM Program Manager and is responsible for administering the
program. To support the overall management of the FAC-P/PM certification
program at the OPDIV level, Executive Officers and their HCAs may either
use their existing ACM or designate an additional ACM, whose
professional background includes program and project management. See
Appendix B, Federal Acquisition Certification--Program and Project
Managers--Roles and Responsibilities, in the P/PM Handbook for
additional information.
[74 FR 62398, Nov. 27, 2009. Redesignated at 75 FR 21510, Apr. 26, 2010]
Sec. 301.607-78 Contracting Officer designation of a Program/Project
Manager as the Contracting Officer's Technical Representative.
Personnel who are FAC-P/PM certified, at any level, meet the
requirements for FAC-COTR certification and are, therefore, not required
to obtain FAC-COTR certification to serve as a COTR for an HHS
acquisition. However, for those individuals serving as a Program or
Project Manager under a FAC-P/PM certification waiver--see 301.607-73,
the Contracting Officer shall ensure that the individual meets the
requirements of HHS' FAC-COTR program before delegating authority to
that individual to act as a COTR. See 301.605 for additional information
regarding the Contracting Officer's designation of a COTR.
[74 FR 62398, Nov. 27, 2009. Redesignated at 75 FR 21510, Apr. 26, 2010]
Sec. 301.608 Training requirements for purchase cardholders, Approving
Officials, and Agency/Organization Program Coordinators.
Training requirements for purchase cardholders, Approving Officials,
and Agency/Organization Program Coordinators are listed in the following
table:
HHS Purchase Card Training Program, by Authority Level
------------------------------------------------------------------------
Required training
Authority \a\ Program participant \b\
------------------------------------------------------------------------
Up to $3,000................ Prospective/newly Basic purchase card
appointed purchase training (HHS
cardholders and University course
Approving Officials. or an OPDIV
equivalent course).
Purchase card Yearly refresher
holders and purchase card
Approving Officials. training.
[[Page 17]]
$3,001 to $25,000........... Prospective/newly
appointed purchase Basic purchase card
cardholders and training (HHS
Approving Officials. University course
or an equivalent).
Basic simplified
acquisition
procedures (e.g.,
DAU's CON 237).
Advanced simplified
acquisition
procedures or
Appropriations law.
Purchase card Yearly refresher
holders and purchase card
Approving Officials. training.
$25,001 to $100,000......... Prospective/newly
appointed purchase Basic purchase card
cardholders and training (HHS
Approving Officials. University course
or an OPDIV
equivalent course).
Basic simplified
acquisition
procedures (e.g.,
DAU's CON 237).
Advanced simplified
acquisition
procedures or
Appropriations law.
CON 100 (Shaping
Smart Business
Arrangements).
CON 110 (Mission
Support Planning).
Purchase cardholders Yearly refresher
and Approving purchase card
Officials. training.
Not applicable.............. Prospective/newly
appointed Agency/ Basic purchase card
Organization training (HHS
Program University course
Coordinators. or an OPDIV
equivalent course).
Basic simplified
acquisition
procedures or DAU's
CON 237.
Advanced simplified
acquisition
procedures or
appropriations law.
CON 100 (Shaping
Smart Business
Arrangements).
CON 110 (Mission
Support Planning).
Agency/Organization Yearly refresher
Program purchase card
Coordinators. training
(attendance at
GSA's annual
training conference
satisfies refresher
training).
------------------------------------------------------------------------
\a\ Cardholders and Approving Officials with authorized increases in
delegation of procurement authority (DPA) have up to 3 months to
complete the training requirements for the new DPA.
\b\ CON 237, CON 100, and CON 110 are available at the DAU Web site at
http://www.dau.mil/registrar/enroll.asp. CON 100 is also offered
through HHS University (see Web site at: http://learning.hhs.gov).
PART 302_DEFINITIONS OF WORDS AND TERMS
Subpart 302.1_Definitions
Sec.
Sec. 302.101 Definitions.
Subpart 302.2_Definitions Clause
Sec. 302.201 Contract clause.
Subpart 302.70_Common HHSAR Acronyms and Abbreviations
Sec. 302.7000 Common HHSAR acronyms and abbreviations.
Subpart 302.71_HHS Standard Templates and Formats
Sec. 302.7100 HHS standard templates and formats
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 302.1_Definitions
Sec. 302.101 Definitions.
(a) Agency head or head of the Agency, unless otherwise stated,
means the head of the OPDIV for: AHRQ; CDC; CMS; FDA; HRSA; IHS; NIH;
SAMHSA; and ASFR for the Office of the Secretary (OS), including PSC.
The Assistant Secretary for Preparedness and Response (ASPR) is the head
of the agency for BARDA contracting functions.
(b) Chief of the Contracting Office is typically a mid-level
management official, usually an office director, division director, or
branch chief, who manages and monitors the daily contract operations of
an OPDIV or major component of an OPDIV. The CCO is subordinate to the
HCA, except where the same individual is the HCA and CCO.
(c) Contracting Officer's Technical Representative is a Federal
employee whom a Contracting Officer has designated in writing to act as
the Contracting Officer's representative in monitoring and administering
specified aspects of contractor performance after award of a
[[Page 18]]
contract or order that exceeds the simplified acquisition threshold.
(Note: In accordance with local procedures, OPDIVs may designate COTRs
for contracts or orders estimated to be less than the simplified
acquisition threshold.) These activities may include verifying that:
(1) The contractor's performance meets the standards set forth in
the contract;
(2) The contractor meets the contract/order's technical requirements
by the specified delivery date(s) or within the period of performance;
and
(3) The contractor performs within the fixed price or cost ceiling
stated in the contract or order. COTRs must meet the training and
certification requirements specified in 301.604.
(d) Head of the contracting activity is an official who has overall
responsibility for managing a contracting activity--i.e., the
organization within an OPDIV or other HHS organization which has been
delegated broad authority regarding the conduct of acquisition
functions.
(1) The HHS HCAs are as follows:
AHRQ: Director, Division of Contracts Management.
ASPR: Director, Office of Acquisitions Management, Contracts and Grants.
CDC: Director, Procurement and Grants Office.
CMS: Director, Office of Acquisition and Grants Management.
FDA: Director, Office of Acquisitions and Grant Services.
HRSA: Director, Office of Acquisition Management and Policy.
IHS: Director, Division of Acquisition Policy.
NIH: Director, Office of Acquisition and Logistics Management.
PSC: Director, Strategic Acquisition Service.
SAMHSA: Director, Division of Contracts Management.
(2) Each HCA shall conduct an effective and efficient acquisition
program; establish adequate controls to ensure compliance with
applicable laws, regulations, procedures, and the dictates of good
management practices; and conduct periodic reviews to evaluate and
determine the extent of adherence to prescribed policies and regulations
and the need for guidance and training.
(3) HCAs may redelegate their authorities to the extent that
redelegation is not prohibited by the terms of their respective
delegations of authority, by law, by the FAR, by the HHSAR, or by other
regulations. To ensure proper control of redelegated acquisition
authorities, HCAs shall maintain a file containing successive
delegations of HCA authority through the Contracting Officer level.
(e) Program Manager is a federal employee whom an OPDIV official or
designee one level above the head of the sponsoring program office has
designated in writing to act as a Program Manager for a group of related
major or non-major IT or construction capital investments--see HHS' P/PM
Handbook. See also Appendix D, Relationship between Program Management
and Project Management, of OFFP memorandum entitled ``The Federal
Acquisition Certification for Program and Project Managers,'' dated
April 25, 2007. Program Managers must meet the FAC-P/PM certification
requirements in 301.607. A Program Manager may also be delegated
authority to act as the COTR for a major or non-major IT or construction
capital investment--see 301.604.
(f) Project Manager is a federal employee whom a head of the
sponsoring program office (Program Manager) or designee has designated
in writing to act as a Project Manager for a major or non-major IT or
construction capital investment--see HHS' P/PM Handbook. See also
Appendix D, Relationship between Program Management and Project
Management, of OFFP memorandum entitled ``The Federal Acquisition
Certification for Program and Project Managers,'' dated April 25, 2007.
Project Managers must meet the FAC-P/PM certification requirements in
301.607. A Project Manager may also be delegated authority to act as the
COTR for a major or non-major IT or construction capital investment--see
301.604.
(g) Project Officer is a Federal employee whom a head of the
sponsoring program office (Program Manager) or designee has designated
in writing to act as a Project Officer and provide guidance,
information, and assistance to the Contracting Officer for all technical
aspects of a proposed project before award of a contract or order that
is
[[Page 19]]
estimated to exceed the simplified acquisition threshold. (Note: In
accordance with local procedures, OPDIVs may designate Project Officers
for contracts or orders estimated to be less than the simplified
acquisition threshold.) Project Officers must meet the training
requirements in 301.606. Project Officers are often delegated authority
to also act as the COTR on a contract or order--see 301.604.
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21510, Apr. 26, 2010]
Subpart 302.2_Definitions Clause
Sec. 302.201 Contract clause.
The Contracting Officer shall insert the clause in FAR 52.202-1,
Definitions, in solicitations and contracts, except as cited below. This
is an authorized FAR deviation.
(a) In accordance with FAR 52.202-1(a)(1), the Contracting Officer
shall insert paragraph (a) in 352.202-1 in place of paragraph (a) of the
FAR clause.
(b) In accordance with FAR 52.202-1(a)(1), the Contracting Officer
shall insert paragraph (b), or its alternate in 352.202-1, to the end of
the FAR clause. The Contracting Officer shall insert paragraph (b) when
a fixed-priced contract is contemplated and the alternate to paragraph
(b) when a cost-reimbursement contract is contemplated.
Subpart 302.70_Common HHSAR Acronyms and Abbreviations
Sec. 302.7000 Common HHSAR acronyms and abbreviations.
(a) The HHSAR cites numerous acquisition-related and organizational
acronyms and abbreviations. Each of these is established where first
cited in the text, following the use of the unabbreviated term, and are
used in subsequent subparts of that part or any other part of the HHSAR.
(b) The table below cites, for reference purposes, the most commonly
used acronyms and abbreviations--i.e., those that have applicability to
multiple parts of the HHSAR, and where they are first cited. They are
listed alphabetically. The HHSAR also contains other acronyms and
abbreviations, which because they are cited only in one HHSAR part,
subpart, section, or in reference to a particular topic, are not listed
in the table. An example is DCIS (Departmental Contracts Information
System) cited in subpart 304.602.
----------------------------------------------------------------------------------------------------------------
Acronym/abbreviation Term Where first cited in the HHSAR
----------------------------------------------------------------------------------------------------------------
A & E................................... Architect and engineer 304.803-70(b).
(contracts).
AHRQ.................................... Agency for Healthcare Research 301.270(b).
and Quality.
AP...................................... Acquisition Plan................ 301.606-71.
ASFR.................................... Assistant Secretary for 301.103(b).
Financial Resources (in OS).
ASPR/OAMCG.............................. Assistant Secretary for 301.270(b).
Preparedness and Response,
Office of Acquisitions
Management, Contracts and
Grants.
Associate DAS for Acquisition........... Associate Deputy Assistant 301.270(a).
Secretary for Acquisition (in
OS/ASFR/OGAPA/DA).
BPA or BPAs............................. Blanket Purchase Agreement(s)... 301.603-70(b).
CA...................................... Competition Advocate............ 306.202(a).
CAO..................................... Chief Acquisition Officer (for 301.603-72(a)(4).
HHS).
CCO..................................... Chief of the Contracting Office. 301.602-3(b)(3).
CDC..................................... Centers for Disease Control and 301.270(b).
Prevention.
CFR..................................... Code of Federal Regulations..... 301.103(c).
CIO..................................... Chief Information Officer (for 301.607-73(a).
HHS).
CMS..................................... Centers for Medicare and 301.270(b).
Medicaid Services.
COTR.................................... Contracting Officer's Technical 301.604-70.
Representative.
D&F..................................... Determination and Findings...... 306.202(b)(1).
DA...................................... Division of Acquisition (in 301.270(b).
ASFR) in OS.
DASFMP.................................. Deputy Assistant Secretary for 301.607-73(a).
Facilities Management and
Policy.
DAS/GAPA................................ Deputy Assistant Secretary for 309.403.
Grants and Acquisition Policy
and Accountability.
EIT..................................... Electronic information 301.603-73(e).
technology.
EVM..................................... Earned value management......... 301.603-73(a).
FAR..................................... Federal Acquisition Regulation.. 301.101(a).
FDA..................................... Food and Drug Administration.... 301.270(b).
FedBizOpps.............................. Federal Business Opportunities.. 305.205(a).
FSS..................................... Federal Supply Schedule......... 304.803-70(b).
GLD..................................... General Law Division (typically 301.602-3(c)(5).
referred to with ``OGC'').
GSA..................................... General Services Administration. 304.803-70(b).
[[Page 20]]
GWAC.................................... Government-wide acquisition 304.803-70(b).
contract.
HCA..................................... Head of the Contracting Activity 301.470(a).
HHS..................................... (Department of) Health and Human 301.101(a).
Services.
HHSAR................................... Health and Human Services 301.101(a).
Acquisition Regulation.
HRSA.................................... Health Resources and Services 301.270(b).
Administration.
HUBZone................................. Historically Underutilized 305.205(a)(2).
Business Zone.
IDIQ.................................... indefinite-delivery, indefinite- 301.603-70(b).
quantity (contract type).
IHS..................................... Indian Health Service........... 301.270(b).
IT...................................... information technology.......... 301.604-74(a).
JOFOC................................... Justification for Other than 306.303-1(b)(1).
Full and Open Competition.
NIH..................................... National Institutes of Health... 301.270(b).
OCIO.................................... Office of the Chief Information 301.603-73(a).
Officer (for HHS).
OFMP.................................... Office of Facilities Management 301.603-73(a).
and Policy (for HHS).
OGAPA................................... Office of Grants and Acquisition 301.270(b).
Policy and Accountability.
OGC..................................... Office of the General Counsel... 301.602-3(c)(5).
OIG..................................... Office of the Inspector General. 303.104-7(a)(2)(i).
OMB..................................... Office of Management and Budget. 301.106.
OPDIV................................... Operating Division.............. 301.603-73(a).
OS...................................... Office of the Secretary......... 302.101(a).
OSDBU................................... Office of Small and 307.104(a)(4).
Disadvantaged Business
Utilization (in OS).
Pub. L.................................. Public Law...................... 304.604.
PWS..................................... performance work statement 304.1300(c).
(typically cited with SOW).
PSC..................................... Program Support Center (in OS).. 301.270(b).
R&D..................................... research and development........ 301.607-72(b).
RFI..................................... Request for Information......... 305.205(a).
SAMHSA.................................. Substance Abuse and Mental 301.270(b).
Health Services Administration.
SBS..................................... Small Business Specialist (in 307.104(a)(4).
OSDBU).
SF...................................... Standard Form................... 301.603-1(b).
SOW..................................... statement of work [inclusive of 304.1300(c).
specification(s)] and typically
cited with PWS.
SPE..................................... Senior Procurement Executive-- 301.603-71.
i.e., Associate DAS for
Acquisition.
STAFFDIV................................ Staff Division (in OS).......... 311.7001(b).
----------------------------------------------------------------------------------------------------------------
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21510, Apr. 26, 2010]
Subpart 302.71_HHS Standard Templates and Formats
Sec. 302.7100 HHS standard templates and formats.
HHS has developed standard templates and formats for preparation of
various acquisition documents, reports, and plans. The templates and
formats, which contain instructions for their completion, may be
accessed on the ASFR/OGAPA/DA Internet Web site. A complete listing of
the standard templates and formats and where they are referenced in the
text are cited in the table below:
------------------------------------------------------------------------
Title of template/format HHSAR reference
------------------------------------------------------------------------
Acquisition Plan...................... 307.7103.
Acquisition Plan Waiver Request....... 307.7101(b)(2).
Acquisition Strategy.................. 307.104-70.
Annual Acquisition Plan............... 307.104(a)(5).
Competition Advocate Report........... 306.502(b).
Contract File Checklists.............. 304.803-70.
FedBizOpps R & D Sources Sought Notice 305.205(a)(3).
FedBizOpps Request for Information.... 315.201(e)(4).
FedBizOpps Small Business Sources 319.202-2(a)(3).
Sought Notice.
FedBizOpps Sources Sought Notice...... 310.001(a)(3)(iv).
Justification for Other than Full and 306.303-1(b)(1).
Open Competition.
Limited Source Justification.......... 308.405-6(g)(1)(i).
Request for Information............... 315.201(e)(4).
------------------------------------------------------------------------
[[Page 21]]
PART 303_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
Subpart 303.1_Safeguards
Sec.
Sec. 303.101 Standards of conduct.
Sec. 303.101-3 Agency regulations.
Sec. 303.1047-7 Violations or possible violations of the Procurement
Integrity Act.
Sec. 303.1003 Requirements.
Subpart 303.2_Contractor Gratuities to Government Personnel
Sec. 303.203 Reporting suspected violations of the Gratuities clause.
Subpart 303.3_Reports of Suspected Antitrust Violations
Sec. 303.303 Reporting suspected antitrust violations.
Subpart 303.4_Contingent Fees
Sec. 303.405 Misrepresentations or violations of the Covenant Against
Contingent Fees clause.
Subpart 303.6_Contracts With Government Employees or Organizations Owned
or Controlled by Them
Sec. 303.602 Exceptions.
Subpart 303.7_Voiding and Rescinding Contracts
Sec. 303.704 Policy.
Subpart 303.8_Limitation on the Payment of Funds To Influence Federal
Transactions
Sec. 303.808-70 Solicitation provision and contract clause.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 303.1_Safeguards
Sec. 303.101 Standards of conduct.
Sec. 303.101-3 Agency regulations.
(a)(3) The HHS Standards of Conduct are prescribed in 45 CFR part
73.
Sec. 303.104-7 Violations or possible violations of the Procurement
Integrity Act.
(a)(1) The Contracting Officer shall submit to the HCA for review
and approval the determination (along with supporting documentation)
that a reported violation or possible violation of the statutory
prohibitions has no impact on the pending award or selection of a
contractor for award.
(2) The Contracting Officer shall refer the determination that a
reported violation or possible violation of the statutory prohibitions
has an impact on the pending award or selection of a contractor, along
with all related information available, to the HCA, if the HCA is in the
Senior Executive Service (SES), or to another SES official designated by
the OPDIV. That individual shall--
(i) Refer the matter immediately to the Associate DAS for
Acquisition for review, who may consult with OGC-GLD and the Office of
the Inspector General (OIG), as appropriate; and
(ii) Determine the necessary action in accordance with FAR 3.104-
7(c) and (d). The HCA shall obtain the approval or concurrence of the
Associate DAS for Acquisition before proceeding with an action.
(b) The HCA (non-delegable) shall act with respect to actions taken
under the FAR clause 52.203-10, Price or Fee Adjustment for Illegal or
Improper Authority.
Sec. 303.1003 Requirements.
(b) The Contracting Officer, when notified of a possible contractor
violation of Federal criminal law, in accordance with FAR 3.1003(b),
shall--
(1) Notify the OIG at http://www.oig.hhs.gov/fraud/hotline;
(2) Notify the HCA; and
(3) Cooperate with any investigation by the OIG; and in coordination
with the HCA, OIG, OGC and the affected program office, pursue
appropriate remedies.
(c)(2) The Contracting Officer shall specify the title of HHS'
hotline poster (``Report Fraud'') and the Web site where the poster can
be obtained (http://oig.hhs.gov/fraud/hotline/OIG--Hotline--Poster.pdf)
in subparagraph (b)(3) of the clause at FAR 52.203-14.
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21510, Apr. 26, 2010]
[[Page 22]]
Subpart 303.2_Contractor Gratuities to Government Personnel
Sec. 303.203 Reporting suspected violations of the Gratuities clause.
HHS personnel shall report suspected violations of the Gratuities
clause to the Contracting Officer, who will in turn report the matter to
the OGC Ethics Division for disposition. The OGC Ethics Division shall
identify, and notify the Contracting Officer of, the form and content of
the required report.
Subpart 303.3_Reports of Suspected Antitrust Violations
Sec. 303.303 Reporting suspected antitrust violations.
(h) The HCA shall provide a copy of the draft OPDIV report of
suspected antitrust violations to the SPE. If the SPE concurs with the
draft report, the SPE will provide it to the OGC-GLD for its review. If
the OGD-GLD concurs with the draft report, the SPE will provide the
signed OGC-approved report to the Attorney General.
Subpart 303.4_Contingent Fees
Sec. 303.405 Misrepresentations or violations of the Covenant Against
Contingent Fees clause.
(a) HHS personnel shall promptly report suspected misrepresentations
or violations of the Covenant Against Contingent Fees clause to the
Contracting Officer.
(b)(4) The HCA shall provide a copy of the draft OPDIV report of
suspected covenant against contingency fees misrepresentations or
violations to the SPE. If the SPE concurs with the draft report, the SPE
will provide it to the OGC-GLD for its review. If the OGD-GLD concurs
with the draft report, the SPE will provide the signed OGC-approved
report to the Attorney General.
Subpart 303.6_Contracts With Government Employees or Organizations Owned
or Controlled by Them
Sec. 303.602 Exceptions.
The HCA (non-delegable) is the official authorized to approve an
exception to the policy stated in FAR 3.601.
Subpart 303.7_Voiding and Rescinding Contracts
Sec. 303.704 Policy.
(a) For purposes of implementing FAR subpart 3.7, the HCA (non-
delegable) shall exercise the authorities granted to the ``agency head
or designee.''
Subpart 303.8_Limitation on the Payment of Funds To Influence Federal
Transactions
Sec. 303.808-70 Solicitation provision and contract clause.
The Contracting Officer shall insert the clause in 352.203-70, Anti-
lobbying, in solicitations and contracts that exceed the simplified
acquisition threshold.
PART 304_ADMINISTRATIVE MATTERS
Subpart 304.6_Contracting Reporting
Sec.
Sec. 304.602 General.
Sec. 304.604 Responsibilities.
Subpart 304.8_Government Contract Files
Sec. 304.803-70 Contract/order file organization and use of checklists.
Sec. 304.804-70 Contract closeout audits.
Subpart 304.13_Personal Identity Verification
Sec. 304.1300 Policy.
Subpart 304.70_Acquisition Instrument Identification Numbering System
Sec. 304.7000 Scope of subpart.
Sec. 304.7001 Numbering acquisitions.
[[Page 23]]
Subpart 304.71_Review and Approval of Proposed Contract Awards
Sec. 304.7100 Policy.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 304.6_Contract Reporting
Sec. 304.602 General.
HHS' Departmental Contracts Information System (DCIS) captures and
stores HHS' Individual Contract Award Reports (ICARs) and forwards
copies of them to the Federal Procurement Data System--Next Generation
(FPDS-NG). All HHS contracting activities shall use the DCIS, in
accordance with the most current version of the ``User Manual for the
Enhanced Departmental Contracts Information System,'' (DCIS Users'
Manual) available at http://dcis.hhs.gov. For the purposes of this
policy, reporting shall include inputting and submitting report data
through DCIS into FPDS-NG.
Sec. 304.604 Responsibilities.
In order for HHS to meet its reporting requirements and ensure
compliance with the Federal Funding Accountability and Transparency Act
(Transparency Act), Public Law (Pub. L.) 109-282, HHS acquisition
officials and staff must report their contract information accurately
and timely. Ensuring accuracy and timeliness also requires effective and
efficient data verification and validation at the time of and following
reporting.
Following are descriptions of the organizational roles and
responsibilities associated with contract reporting, including data
input, oversight, and quality control; training of acquisition staff on
reporting responsibilities; and operating, managing, and maintaining
DCIS.
(a) ASFR/OGAPA/DA. The ASFR/OGAPA/DA shall do the following:
(1) Oversee and provide policy guidance for OPDIV contract reporting
by--
(i) Establishing and implementing an effective HHS-wide ICAR data
verification and validation program; and
(ii) Identifying cross-cutting trends through periodic testing of
selected ICAR data, including Transparency Act data fields.
(2) Ensure that DCIS is properly managed and maintained, including--
(i) Verifying that data included therein meets FPDS-NG and
Transparency Act accuracy and timeliness standards;
(ii) Updating the DCIS Users' Manual periodically; and
(iii) Prescribing standard HHS-wide DCIS training.
(3) Certify annually that HHS ICAR information is complete and
accurate.
(b) HCA. Each HCA (non-delegable) shall--
(1) Ensure that all reportable ICAR information is collected,
submitted, and received within the time frames and under the
circumstances specified in FAR Subpart 4.6.
Note: Each CCO shall prepare and submit accurate ICAR data in
accordance with HCA guidance.;
(2) Provide continuing oversight, including implementing an OPDIV-
level data verification and validation program, to ensure ICAR data
quality and timeliness;
(3) Establish a continuous training program for acquisition staff to
ensure the quality and timeliness of ICAR data; and
(4) Certify annually to HHS' SPE that OPDIV ICAR information is
complete and accurate.
(c) Contracting Officer. As part of a normal file review, required
under 304.7101, the Contracting Officer shall--
(1) Ensure that all reportable contracts and orders, including BPA
orders and modifications thereto, are reported;
(2) Review and approve proposed ICAR data for completeness and
accuracy prior to signing contracts/orders and modifications; and
(3) Correct all DCIS data discrepancies before signing the
associated contract, order, or modification.
(d) OPDIV DCIS coordinator/focal point. The OPDIV DCIS coordinator/
focal point shall--
(1) Identify data errors and ensure their timely correction as part
of the DCIS quality control process;
[[Page 24]]
(2) Conduct remedial staff training, as appropriate, to improve data
accuracy and timeliness; and
(3) Represent the OPDIV as a member of the DCIS Configuration
Committee.
(e) DCIS Configuration Committee. The DCIS Configuration Committee
is composed of the HHS DCIS manager, other ASFR/OGAPA/DA acquisition
management staff, as required; and each OPDIV's DCIS coordinator/focal
point. The Committee shall ensure that the DCIS is properly maintained
and shall evaluate and recommend changes to DCIS to improve its
functionality, features, and quality control, as appropriate.
Subpart 304.8_Government Contract Files
Sec. 304.803-70 Contract/order file organization and use of checklists.
(a) To provide a consistent approach to the organization and content
of HHS contract and order files, OPDIVs shall use the folder filing
system and accompanying file checklists specified in 304.803-70(b), in
accordance with the guidance therein and the instructions specified as
``Contract and Order File Folders, Checklists, and Instructions. The
checklists are available on the ASFR/OGAPA/DA Internet.
(b) The checklist requirements apply to files for (i) negotiated,
sealed-bid, and Architect-Engineer (A & E) acquisitions; (ii) orders
awarded and BPAs established under General Services Administration (GSA)
Federal Supply Schedule (FSS) contracts; (iii) orders placed under all
types of indefinite-delivery contracts, including task orders under
Government-wide Acquisition Contracts (GWACs); and (iv) modifications
under the types of acquisitions specified in (i), (ii), and (iii).
Simplified acquisitions, including those for commercial items, are
exempt from these checklist requirements. However, HHS contracting
activities shall adhere to the simplified acquisition file documentation
and retention requirements of FAR 13.106-3(b). For commercial item
acquisitions using the negotiated or sealed bid methods, HHS contracting
activities shall use the applicable checklist.
(1) A complete contract or order file may consist of the following
folders that are titled as indicated below for the specified acquisition
methods:
----------------------------------------------------------------------------------------------------------------
Acquisition method Folder title Folder title Folder title Folder title
----------------------------------------------------------------------------------------------------------------
Negotiated...................... Presolicitation to Unsuccessful Administration and Reports and
Award. Proposals. Closeout. Deliverables.
Sealed-bid...................... Presolicitation to Unsuccessful Bids. Administration and N/A.
Award. Closeout.
A & E........................... Preannouncement to Unsuccessful Administration and Reports and
Award. Qualifications Closeout. Deliverables.
Statements.
Task orders..................... Presolicitation to Unsuccessful Administration and Reports and
Award. Proposals. Closeout. Deliverables.
GSA FSS......................... Presolicitation to Unsuccessful Administration and N/A.
Award. Quotations/Oral Closeout.
Presentations.
----------------------------------------------------------------------------------------------------------------
(2) Although the use of the checklists is mandatory, each OPDIV
contracting office is permitted to make certain checklist changes or
additions as specified in ``Use and modification of checklists'' under
``File checklists and tab dividers'' in the instructions.
(3) OPDIVs using or planning to use electronic filing capabilities
shall adhere to the folder and tab nomenclature requirements identified
herein to the maximum extent practicable.
Sec. 304.804-70 Contract closeout audits.
(a) Contracting Officers shall rely, to the maximum extent possible,
on single audits to close physically completed cost-reimbursement
contracts with colleges and universities, hospitals, non-profit
organizations, and State and local governments. In addition, where
appropriate, a sample of these contracts or an individual contract may
be selected for audit, in accordance with paragraph (b) of this section.
[[Page 25]]
(b) Contracting Officers shall request contract closeout audits on
physically completed, cost-reimbursement, contracts with for-profit
organizations in accordance with the following:
(1) The OIG and the Associate DAS for Acquisition, in conjunction
with the OPDIV's cost advisory/audit focal point, determine which
contracts or contractors will be audited, which audit agency will
perform the audit, and the type and scope of closeout audit to be
performed. These decisions are based on the needs of the customer, risk
analysis, return on investment, and the availability of audit resources.
When an audit is warranted prior to closing a contract, the Contracting
Officer shall submit the audit request to the OIG's Office of Audit
Services, through the OPDIV's cost advisory/audit focal point.
(2) Except where a Contracting Officer suspects misrepresentation or
fraud, the Contracting Officer shall not request contract closeout field
audits, if the cost of performance is likely to exceed the potential
cost recovery. Contracting Officers may close contracts that are not
selected for a field audit on the basis of a desk review, subject to any
later on-site audit findings. In those situations, the release executed
by the contractor shall contain the following statement: ``The
Contractor agrees, pursuant to the clause in this contract entitled
``Allowable Cost'' or ``Allowable Cost and Fixed Fee,'' as appropriate,
that it will refund to the Government the amount of any sustained audit
exceptions resulting from any audit made after final payment.''
Subpart 304.13_Personal Identity Verification
Sec. 304.1300 Policy.
(a) Definitions. The following definitions apply to this subpart:
(1) Access: ``Physical'' entry to and/or exit from a facility/area
of a facility (such as a building or room in a building) or ``logical''
entry into an information system, such as a researcher up-loading data/
information through a secure Web site or a contractor accessing an HHS-
controlled information system from its own facility. It does not include
access to a public Web site, whether by an HHS contractor or member of
the public, because such Web sites do not require permission to access.
In the case of sensitive data/information that exists in hard copy,
``access'' means providing a contractor the right to view or use
written/typed data or information for the purpose described in a
contract.
(2) Long-term: Greater than 6 months in duration.
(3) Routine: On a regular, non-intermittent basis, which is at least
once per week during the contract or order period of performance.
(4) Sensitive data/information: As defined by the Computer Security
Act of 1987, any data/information, ``the loss, misuse, or unauthorized
access to or modification of which, could adversely affect the national
interest or the conduct of Federal programs, or the privacy to which
individuals are entitled under section 552a of the Title 5 of U.S.C.
(the Privacy Act), but which has not been specifically authorized under
criteria established by an Executive order or an act of Congress to be
kept secret in the interest of national defense or foreign policy.''
Examples include individuals' social security numbers; other personal
identification information, such as individuals' health, medical, or
psychological information; proprietary research data; and confidential
legal data.
(5) Short-term: Six (6) months or less in duration.
(b) Homeland Security Presidential Directive (HSPD-12), entitled,
``Policy for a Common Identification Standard for Federal Employees and
Contractors,'' was issued on August 27, 2004, to enhance security and
reduce identity fraud related to contractor physical access to
Federally-controlled facilities and/or logical access to Federally-
controlled information systems.
(1) The HSPD-12 requirements related to routine, long-term physical
access to HHS-controlled facilities and logical access to HHS-controlled
information systems, including contractor personnel background checks/
investigations (termed herein as ``more stringent'' access procedures),
apply to all solicitations and new contracts or orders for services,
including services
[[Page 26]]
incidental to supply contracts/orders, regardless of dollar amount,
where the contractor will require such access (FAR 4.1303). In addition,
HHS has determined that, when a contractor has routine, long-term access
to sensitive data/information, whether it exists in an HHS-controlled
information system or in hard copy, that data/information must also be
protected and controlled in accordance with HSPD-12's more stringent
access procedures--see 304.1300(e).
(2) When a contractor's access to HHS-controlled facilities,
information systems, and/or sensitive data/information is of routine but
short-term duration, an OPDIV shall use the applicable guidance cited in
OMB memorandum M-05-24 related to ``short-term'' access to determine
appropriate protections and limit/control contractor access--see
304.1300(f)]. However, if the Project Officer determines greater access
controls are necessary, an OPDIV may protect and control facilities,
information systems, and/or sensitive data information in accordance
with HSPD-12's more stringent access procedures.
(3) When a contractor's access to HHS-controlled facilities,
information systems, and/or sensitive data/information is not routine,
regardless of duration, HHS has determined that OPDIVs shall use the
applicable guidance cited in OMB memorandum M-05-24 related to
``occasional visitors'' to determine appropriate protections and limit/
control contractor access--see 304.1300(g).
(4) Summary table of contractor access circumstances and HSPD-12
requirements.
------------------------------------------------------------------------
HSPD-12 security
HSPD-12 access notice required in
Type of access procedures solicitation/
required contract SOW/PWS?
[see 304.1300(e)]
------------------------------------------------------------------------
Routine, long-term, physical More stringent YES.
access to HHS-controlled access procedures
facilities. apply.
Routine, long-term logical More stringent YES.
access to an HHS-controlled access procedures
information system that does apply.
not contain sensitive HHS data/
information.
Routine, long-term access to More stringent YES.
sensitive HHS data/information, access procedures
whether it exists in an HHS- apply.
controlled information system
(logical access) or in hard
copy.
Routine, short-term access to If greater access YES.
HHS-controlled facilities, controls are
information systems, and/or deemed necessary,
sensitive HHS data/information. more stringent
access procedures
apply.
If greater access controls are NO, but contractor
not deemed necessary, staff must be
applicable guidance cited in provided with the
OMB memorandum M-05-24 related OPDIV
to ``short-term'' access to documentation on
determine appropriate the rules of
protections and limit/control behavior and
contractor access. consequences for
violation [see
304.1300(f)].
Non-routine access, regardless Applicable NO, but contractor
of duration, to HHS-controlled guidance cited in staff must be
facilities, information OMB memorandum M- provided with the
systems, and/or sensitive HHS 05-24 related to OPDIV
data/information. ``occasional ``occasional
visitors'' to visitor'' policy
determine and procedures
appropriate [see
protections and 304.1300(g)].
limit/control
contractor access.
------------------------------------------------------------------------
(c) As part of the acquisition planning process, the Project Officer
shall determine whether, based on the nature of the requirement,
contractor personnel may require access to HHS-controlled facilities
and/or information systems, including sensitive data/information, in
order to perform the contract/order Statement of Work (SOW)/Performance
Work Statement (PWS). If contractor access is required, the Project
Officer must assess, based on information available at that point in the
process, the type, frequency, and duration of such access. Following
that determination, the Project Officer shall consult with OPDIV and/or
local building and IT security officials/staff, and officials/staff
involved with personnel security, including the designated personnel
security representative, to determine appropriate security requirements
and, as necessary, adjust project requirements to minimize security and
access issues. The Project Officer shall comply with HSPD-12 and the
[[Page 27]]
following implementing guidance in making these judgments and
determinations:
(1) OMB memorandum M-05-24, Implementation of Homeland Security
Presidential Directive (HSPD) 12--Policy for a Common Identification
Standard for Federal Employees and Contractors, dated August 5, 2005.
(2) National Institutes of Standards and Technology Federal
Information Processing Standard Publication (FIPS PUB) 201), dated
February 25, 2005, which can be accessed at: http://csrc.nist.gov/
publications/.
(3) FAR (FAR 4.13 and 52.204-9).
(4) Any HHS and OPDIV implementation thereof.
(d) If, as part of the acquisition planning process, the Project
Officer determines that contractor access will not be required, the
Project Officer should so state in the AP (or other acquisition request
document)--see 307.7101. If an AP does not address access issues or
indicates contractor access is not required, and it appears an
acquisition may involve access requirements, the Contracting Officer
shall request that the Project Officer address or reconsider the initial
access determination. The Project Officer's determination shall be
final.
(e) If HSPD-12's more stringent access procedures are expected to
apply, because access will be routine and of long-term duration, or is
routine and of short-term duration, but greater access controls are
deemed necessary, the Project Officer shall include the following ``HHS-
Controlled Facilities and Information Systems Security'' notice in a
separate, clearly designated ``Security'' section of the SOW/PWS. (Note:
The Contracting Officer is responsible for tailoring the language in the
solicitation and contract/order in accordance with the instructions
provided below.)
``XXX Security.
HHS-Controlled Facilities and Information Systems Security
(a) To perform the work specified herein, Contractor personnel are
expected to have routine (1) physical access to an HHS-controlled
facility; (2) logical access to an HHS-controlled information system;
(3) access to sensitive HHS data or information, whether in an HHS-
controlled information system or in hard copy; or (4) any combination of
circumstances (1) through (3). (b) To gain routine physical access to an
HHS facility, logical access to an HHS-controlled information system,
and/or access to sensitive data or information, the Contractor and its
employees shall comply with Homeland Security Presidential Directive
(HSPD)-12, Policy for a Common Identification Standard for Federal
Employees and Contractors; Office of Management and Budget memorandum
(M-05-24); and Federal Information Processing Standards Publication
(FIPS PUB) Number 201; and with the personal identity verification and
investigation procedures contained in the following documents:
(1) HHS Information Security Program Policy.
(2) HHS Office of Security and Drug Testing, Personnel Security/
Suitability Handbook, dated February 1, 2005.
(3) HHS HSPD-12 Policy Document, v. 2.0.
(4)
Note: Based upon information provided by the Project Officer, the
Contracting Officer shall insert references to OPDIV and/or local
procedural guideline(s), if any; indicate if they are readily accessible
to the public; and, if so, specify where they may be found. If they are
not readily accessible, the Contracting Officer shall attach a copy to
the solicitation and contract and reference the guideline(s) here.
(c) This contract/order will entail the following position
sensitivity level(s): --------------------.
Note: At the time of solicitation, based upon information provided
by the Project Officer, the Contracting Officer shall specify all known
levels. If the position sensitivity levels are not known at that time,
the Contracting Officer shall insert the words ``To Be Determined at the
Time of Award.'' However, the Contracting Officer must include the
definitive position sensitivity levels in the awarded contract/order.
(d) The personnel investigation procedures for Contractor personnel
require that the Contractor prepare and submit background check/
investigation forms based on the type of investigation required. The
minimum Government investigation for a non-sensitive position is a
National Agency Check and Inquiries (NACI) with fingerprinting. More
restricted positions--i.e., those above non-sensitive, require more
extensive documentation and investigation.
Note: The Contracting Officer shall include the following sentence
in each solicitation as the concluding sentence in paragraph (d)): ``As
part of its proposal, and if the anticipated position sensitivity levels
are specified in paragraph (c) above, the Offeror shall notify the
Contracting Officer of (1) its proposed personnel who will be subject to
a background check/investigation and (2) whether any of its proposed
personnel who
[[Page 28]]
will work under the contract have previously been the subject of
national agency checks or background investigations.''
(The Contracting Officer shall include the following sentence in
each contract/order as the concluding sentence in paragraph (d) in lieu
of the solicitation language: ``The Contractor shall notify the
Contracting Officer in advance when any new personnel, who are subject
to a background check/investigation, will work under the contract and if
they have previously been the subject of national agency checks or
background investigations.'')
(e) Investigations are expensive and may delay performance,
regardless of the outcome of the investigation. Delays associated with
rejections and consequent re-investigations may not be excusable in
accordance with the FAR clause, Excusable Delays--see FAR 52.249-14.
Note: The Contracting Officer shall include the following sentence
in each solicitation as the concluding sentence in paragraph (e):
``Accordingly, if position sensitivity levels are specified in paragraph
(c), the Offeror shall ensure that the employees it proposes for work
under this contract have a reasonable chance for approval.'' The
Contracting Officer shall include the following sentence in each
contract/order as the concluding sentence in paragraph (e) in lieu of
the solicitation language: ``Accordingly, the Contractor shall ensure
that any additional employees whose names it submits for work under this
contract have a reasonable chance for approval.''
(f) Typically, the Government investigates personnel at no cost to
the Contractor. However, multiple investigations for the same position
may, at the Contracting Officer's discretion, justify reduction(s) in
the contract price of no more than the cost of the additional
investigation(s).
(g) The Contractor shall include language similar to this ``HHS-
Controlled Facilities and Information Systems Security'' language in all
subcontracts that require subcontractor personnel to have the same
frequency and duration of (1) physical access to an HHS-controlled
facility; (2) logical access to an HHS-controlled information system;
(3) access to sensitive HHS data/information, whether in an HHS-
controlled information system or in hard copy; or (4) any combination of
circumstances (1) through (3).
(h) The Contractor shall direct inquiries, including requests for
forms and assistance, to the Contracting Officer or designee.
(i) Within 7 calendar days after the Government's final acceptance
of the work under this contract, or upon termination of the contract,
the Contractor shall return all identification badges to the Contracting
Officer or designee.''
(f) When a contractor's access to HHS-controlled facilities,
information systems, and/or sensitive data/information is of routine,
but short-term duration, and greater access controls are not deemed
necessary, the Contracting Officer and Project Officer shall use the
applicable guidance cited in OMB memorandum M-05-24, dated August 5,
2005, specifically Attachment A, ``HSPD-12 Implementation Guidance for
Federal Departments and Agencies,'' to ensure that--
(1) Adequate OPDIV access controls are applied, and a contractor is
granted only limited/controlled access to facilities, systems, and/or
sensitive data/information, consistent with the requirements of the
acquisition;
(2) Contractor staff are provided with clear OPDIV documentation on
the rules of behavior and consequences of their violation before being
granted access to facilities, systems, and/or sensitive data/
information;
(3) Contractor security violations are documented and reported to
the appropriate OPDIV authority within 24 hours of their occurrence; and
(4) Identity credentials issued to contractor staff are visually and
electronically distinguishable from credentials issued to individuals to
whom the more stringent HSPD-12 access procedures apply.
Note to paragraph (f): However, as indicated in 304.1300(e), if the
Project Officer determines greater access controls are necessary, an
OPDIV may protect and control facilities, information systems, and/or
sensitive data information in accordance with HSPD-12's more stringent
access procedures.
(g) When a contractor's access to HHS-controlled facilities,
information systems, and/or sensitive data/information is not routine,
regardless of duration, the Contracting Officer and Project Officer
shall use the applicable guidance cited in OMB memorandum M-05-24, dated
August 5, 2005, specifically Attachment A, ``HSPD-12 Implementation
Guidance for Federal Departments and Agencies,'' related to ``occasional
visitors'' to determine appropriate protections and limit/control
contractor access to ensure that--
(1) Adequate OPDIV access controls are applied, and the contractor
is granted only limited/controlled access to facilities, systems, and/or
sensitive
[[Page 29]]
data/information, consistent with the requirements of the acquisition;
and
(2) OPDIV visitor policies, including contractor personnel identity
badging requirements, are enforced and are provided to the contractor.
Subpart 304.70_Acquisition Instrument Identification Numbering System
Sec. 304.7000 Scope of subpart.
This subpart prescribes policy and procedures for assigning
identification numbers to contracts and related instruments, including
solicitation documents, purchase orders, and delivery orders. The HCA
(non-delegable) shall establish a numbering system within an OPDIV.
Sec. 304.7001 Numbering acquisitions.
(a) Acquisitions which require numbering. Contracting activities
shall number the following acquisitions and related instruments in
accordance with the system prescribed in paragraphs (b), (c) and (d) of
this section:
(1) Contracts, including letter contracts, that exceed the micro-
purchase threshold or the acquisition of personal property or
nonpersonal services. (Note: The Contracting Officer shall also assign
the letter contract number to the superseding definitized contract.)
(2) Basic ordering agreements (BOAs) and BPAs.
(3) Requests for proposals and invitations for bids.
(4) Requests for quotations.
(b) Numbering system for contracts. The Contracting Officer shall
assign a number consisting of the following to all contracts which
require numbering (paragraph (a)(1) of this section):
(1) The three-digit identification code (HHS) of the Department.
(2) A one-digit alphabetic identification code of the servicing
agency.
AHRQ: A
ASPR/OAMCG: O
CDC: D
CMS: M
FDA: F
HRSA: H
IHS: I
NIH: N
PSC: P
SAMHSA: S
(3) The three-digit numeric identification code assigned by ASFR/
OGAPA/DA to the contracting office within the servicing agency.
(4) A four-digit fiscal year designation (e.g., 2009, 2010).
(5) A five-digit alphanumeric tracking number, the content of which
is determined by the contracting office within the servicing agency.
(6) A one-digit code describing the type of contract action. For
example, the National Cancer Institute, NIH, may number its first
contract for fiscal year 2009 as HHSN261200900001C. (Note: When more
than one code may apply in a specific situation, or for additional
codes, refer to the DCIS Users' Manual or consult with the cognizant
DCIS coordinator/focal point for guidance on which code governs.):
A Commercial Item Acquisitions (including purchases using simplified
acquisition procedures in accordance with the FAR subpart 13.5 Test
program)
C New Definitive Contract
P Purchases using simplified acquisition procedures (other than
commercial items)
I IDC
O BOA
B BPA
F Facilities Contract
U Contracts placed with or through other Government departments, GSA
contracts, or against mandatory source contracts such as AbilityOne and
Federal Prison Industries (UNICOR)
L Lease Agreement
W Government-wide Acquisition Contract (GWAC)
E Letter Contract
G Federal Supply Schedule
M Micro-purchase
Q Multi-agency contract
(c) Numbering system for orders. The Contracting Officer shall
assign order numbers (e.g., task order numbers) to orders issued under
contracts. The order number shall be up to a seventeen-digit number
consisting of the following:
(1) The three-digit identification code (HHS) of the Department.
(2) A one-digit numeric identification code of the servicing agency:
AHRQ: A
ASPR/OAMCG: O
CDC: D
CMS: M
FDA: F
HRSA: H
[[Page 30]]
IHS: I
NIH: N
PSC: P
SAMHSA: S
(3) The three-digit numeric identification code assigned by ASFR/
OGAPA/DA to the contracting office within the servicing agency.
(4) An alphanumeric tracking number, up to ten characters, the
content of which is determined by the contracting office within the
servicing agency.
(d) Numbering system for solicitations. The HCA is responsible for
developing a numbering system for solicitations listed in paragraphs
(a)(3) and (a)(4) of this section.
(e) Assignment of identification codes. ASFR/OGAPA/DA shall assign
each contracting office a three-digit identification code. HCAs shall
request from ASFR/OGAPA/DA the assignment of codes for newly established
contracting offices. A listing of the contracting office identification
codes currently in use is contained in the DCIS Users' Manual, available
at http://dcis.hhs.gov.
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21510, Apr. 26, 2010]
Subpart 304.71_Review and Approval of Proposed Contract Actions
Sec. 304.7100 Policy.
(a) The HCA (non-delegable) shall establish review and approval
procedures for proposed contract actions to ensure that--
(1) Contractual documents are in conformance with law, established
policies and procedures, and sound business practices;
(2) Contract awards properly reflect the mutual understanding of the
parties; and
(3) The Contracting Officer is informed of deficiencies and items of
questionable acceptability, and takes corrective action.
(b) The HCA shall designate acquisition officials to serve as
reviewers. Each HCA shall establish the criteria for determining which
contracts to review.
(c) Officials assigned responsibility for review and approval of
contract actions shall possess qualifications in the field of
acquisition commensurate with the level of review performed. However, if
an official is to serve as the Contracting Officer and sign the
contractual document, an appropriate official at least one level above
the Contracting Officer shall perform the review and approval function.
(d) The Contracting Officer shall review all contractual documents,
regardless of dollar value, prior to award to ensure the requirements of
paragraph (a) of this section are met.
[[Page 31]]
SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING
PART 305_PUBLICIZING CONTRACT ACTIONS
Subpart 305.2_Synopsis of Proposed Contract Actions
Sec.
Sec. 305.202 Exceptions.
Sec. 305.205 Special situations.
Subpart 305.3_Synopses of Contract Awards
Sec. 305.303 Announcement of contract awards.
Subpart 305.5_Paid Advertisements
Sec. 305.502 Authority.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 305.2_Synopsis of Proposed Contract Actions
Sec. 305.202 Exceptions.
(b) When the Contracting Officer deems an advance notice is not
appropriate or reasonable, the Contracting Officer shall prepare a
memorandum citing all pertinent facts and details and send it through
appropriate acquisition channels, including the HCA, to Associate DAS
for Acquisition requesting an exception to synopsizing. The Associate
DAS for Acquisition shall review the request and decide whether an
exception is appropriate and reasonable. If it is, the Associate DAS for
Acquisition shall take the necessary coordinating actions required by
FAR 5.202(b). ASFR/OGAPA/DA shall promptly notify the contracting office
of the Associate DAS for Acquisition's determination on the request.
Sec. 305.205 Special situations.
(a) An OPDIV may issue an advance notice, entitled ``Research and
Development Sources Sought,'' in Federal Business Opportunities
(FedBizOpps), in accordance with the requirements of FAR 5.205(a). The
primary purpose of an R & D Sources Sought notice is to identify all
potential sources, regardless of organizational type and size
classification, and determine their capabilities to fulfill a potential
Government requirement. The notice is not intended to solicit technical,
scientific, or business information for project planning purposes
regarding existing or possible solutions. In the latter instance, a
Request for Information (RFI) may be used--see FAR 15.201(e) and
315.201(e).
(1) When using an R & D Sources Sought notice, an OPDIV shall not
request that potential sources provide more than the minimum information
necessary--see FAR 10.001(b), to determine whether they have the
apparent capability to perform a requirement and, therefore, whether
they should be included in any future competition. The notice and the
information received shall not be used to determine how well respondents
can perform a requirement, which can only be evaluated in response to a
solicitation. Accordingly, the notice shall not be used to--
(i) Obtain capability statements that are evaluated and determined
acceptable or unacceptable;
(ii) Require cost/price proposals or detailed technical solutions;
(iii) Identify a prospective sole source; or
(iv) Exclude small business concerns.
(2) While not the primary intent of an R & D Sources Sought notice,
in addition to seeking information regarding all potential qualified R &
D sources, the notice may request that respondents provide information
regarding their organizational size classification. For example, the
notice may ask respondents to identify whether they are small
businesses; Historically Underutilized Business (HUB) Zone small
businesses; service-disabled, veteran-owned small businesses; 8(a) small
businesses; veteran-owned small businesses; woman-owned small
businesses; or small disadvantaged businesses in order to determine the
appropriate acquisition method, including whether a set-aside is
possible. However, such a
[[Page 32]]
notice shall not be used solely to determine the size classification of
respondents for a proposed R & D acquisition. In such instances, a
``Small Business Sources Sought'' notice may be used (see 319.202-2), in
lieu of the procedures in this section.
(3) OPDIVs shall follow the standard HHS instructions for completing
an R & D Sources Sought notice. The template for the notice is available
on the ASFR/OGAPA/DA Internet Web site. The Contracting Officer shall
post the notice in FedBizOpps by selecting and completing a Sources
Sought notice, accessible on the FedBizOpps ``Notices'' page at: http://
www.fedbizopps.gov. Additional information may be included in the notice
in accordance with OPDIV procedures. The Contracting Officer shall
document, in the form of a memorandum to the file, the results of the
review by technical personnel of information submitted in response to
the notice, including whether each respondent appears to be capable of
performing the requirement. The Contracting Officer shall attach a copy
of the analysis provided by the technical personnel to the memorandum.
(4) In instances where a sufficient number of sources has not been
identified to compete for a non-R & D project, an OPDIV may use the
procedures specified in 310.001, including the issuance of a ``Sources
Sought'' notice, as appropriate, in lieu of the procedures in this
section.
Subpart 305.3_Synopses of Contract Awards
Sec. 305.303 Announcement of contract awards.
(a) Public announcement. The Contracting Officer shall report awards
over $3.5 million, not otherwise exempt under FAR 5.303, to the Office
of the Assistant Secretary for Legislation (OASL) (Congressional
Liaison). The Contracting Officer shall e-mail a copy of the contract or
award document face page to [email protected] prior to the day of award
or in sufficient time to allow OASL to make an announcement by 5 p.m.
Washington, DC time on the day of award.
[75 FR 21510, Apr. 26, 2010]
Subpart 305.5_Paid Advertisements
Sec. 305.502 Authority.
The Contracting Officer may advertise or place notices in newspapers
and periodicals to announce that the contracting office is seeking
proposals, quotations, or bids, as appropriate.
PART 306_COMPETITION REQUIREMENTS
Subpart 306.2_Full and Open Competition After Exclusion of Sources
Sec.
Sec. 306.202 Establishing or maintaining alternative sources.
Subpart 306.3_Other Than Full and Open Competition
Sec. 306.302 Circumstances permitting other than full and open
competition.
Sec. 306.302-1 Only one responsible source and no other supplies or
services will satisfy agency requirements.
Sec. 306.302-7 Public interest.
Sec. 306.303 Justifications.
Sec. 306.303-1 Requirements.
Sec. 306.304 Approval of the justification.
Subpart 306.5_Competition Advocates
Sec. 306.501 Requirement.
Sec. 306.502 Duties and responsibilities.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 306.2_Full and Open Competition After Exclusion of Sources
Sec. 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 (CA) cited in 306.501.
(b)(1) The Contracting Officer shall prepare the required
determination and
[[Page 33]]
findings (D & F) based on the data provided by program personnel. The
appropriate CA (non-delegable) shall sign the D & F.
Subpart 306.3_Other Than Full and Open Competition
Sec. 306.302 Circumstances permitting other than full and open
competition.
Sec. 306.302-1 Only one responsible source and no other supplies or
services will satisfy agency requirements.
(a)(2)(iv) Follow-on contracts for the continuation of R & D studies
on long-term social and health programs, research studies, or clinical
trials 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 HHS' or the OPDIV's requirements.
(b) Application.
(5) when the head of the sponsoring program office has determined
that the activity must acquire only specified makes or models of
technical equipment or parts to meet the activity's program
responsibility to test and evaluate certain kinds and types of products,
and only one source is available. (Note: This criterion is limited to
testing and evaluation purposes only and not for initial outfitting or
repetitive acquisitions. Project Officers shall support the use of this
criterion with citations from their agency's legislation and the
technical rationale for the item of equipment required.)
Sec. 306.302-7 Public interest.
(a) Authority.
(2) Agency head, in this instance, means the Secretary.
(c) Limitations. The Contracting Officer shall prepare a written
request for approval and provide it through appropriate acquisition
channels, including the HCA and Associate DAS for Acquisition, to the
Secretary. The request shall include a D & F for the Secretary's
signature that contains all pertinent information to support the
justification for exercising the exemption to competition and a letter
for the Secretary's signature notifying Congress of the determination to
award a contract under the authority of 41 U.S.C. 253(c)(7).
Sec. 306.303 Justifications.
Sec. 306.303-1 Requirements.
(b) The responsible Program Office must provide a written
justification whenever it requests that goods or services be acquired
without obtaining full and open competition. The justification must be
submitted with the AP or other acquisition request document--see Subpart
307.71. The Project Officer has responsibility for preparing the
justification with assistance, as necessary, from the Contracting
Officer.
(1) Justifications for acquisitions at or below the simplified
acquisition threshold may be in the form of a paragraph or paragraphs
contained in the requisition or other acquisition request document.
Justifications for acquisitions in excess of the simplified acquisition
threshold shall be in the form of a separate, self-contained document,
prepared in accordance with FAR 6.303 and 306.303, and titled
``Justification for Other Than Full and Open Competition'' (JOFOC). HHS
requires use of a standard format for a JOFOC. The template for the
justification is available on the ASFR/OGAPA/DA Internet Web site.
Additional information may be included in the JOFOC template in
accordance with OPDIV procedures.
(2) Regardless of the dollar amount of the acquisition,
justifications shall--
(i) Fully describe what is to be acquired;
(ii) Provide a specific explanation of why it is not feasible to
obtain full and open competition;
(iii) Be supported by verifiable facts, rather than untested or
unsubstantiated opinions or conclusions; and
(iv) Be written in a manner to permit an individual without
technical knowledge of the requirement to understand the supporting
rationale.
(3) Preliminary arrangements with, or verbal or written commitments
to, a proposed sole-source contractor shall be avoided given the
statutory requirement to obtain full and open competition to the maximum
extent practicable.
[[Page 34]]
(4) Justifications for orders to be placed under FSS contracts that
limit consideration of contractors shall comply with FAR 8.405-6 and
308.405-6.
Sec. 306.304 Approval of the justification.
Certification, concurrence, and approval requirements. The Project
Officer, the Project Officer's immediate supervisor, the head of the
sponsoring program office, and the Contracting Officer shall certify
that the justification is accurate and complete by signing the JOFOC.
For acquisitions in the dollar amount cited in FAR 6.304(a)(2) through
(a)(4), the CCO, if applicable, and the HCA shall indicate their review
of, and concurrence with, the justification by signing the JOFOC.
(a) The approving officials for JOFOCs are as follows:
(1) The Contracting Officer shall exercise this approval authority
unless a higher approval level is required by OPDIV procedures.
(2) The CAs are listed in 306.501. This approval authority is not
delegable.
(3) The CA shall exercise this approval authority, except where the
individual designated as the CA does not meet the requirements of FAR
6.304 (a)(3)(ii). This approval authority is not delegable.
(4) HHS' SPE is the Associate DAS for Acquisition.
(c) A class justification shall be processed in the same manner as
an individual justification. A class justification may consist of
contracts/orders for the same or related supplies and services or other
contract/order actions that require essentially identical
justifications.
Subpart 306.5_Competition Advocates
Sec. 306.501 Requirement.
The HHS CA is the Director, Strategic Acquisition Service, PSC. The
CAs for each of HHS' contracting activities are as follows:
AHRQ: Director, Office of Performance Accountability, Resources and
Technology
ASPR/OAMCG: Chief of Acquisition Policy
CDC: Chief Information Officer
CMS: Chief Operating Officer
FDA: Deputy Commissioner for Administration
HRSA: Associate Administrator, Office of Operations
IHS: Director, Office of Management Services
NIH: Senior Scientific Advisor for Extramural Research, Office of
Extramural Research (R&D) and Senior Advisor to the Director (other than
R&D)
PSC: Director, Strategic Acquisition Service
SAMHSA: Executive Officer
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21510, Apr. 26, 2010]
Sec. 306.502 Duties and responsibilities.
(a) Each OPDIV CA shall prepare an annual Competition Advocate
Report (CAR), covering the prior fiscal year, in accordance with the
requirements of FAR 6.502(b)(2) and 306.502(b), and provide it to the
HHS CA not later than November 16 of each year or the next business day,
if the due date falls on a non-business day. NIH's two CAs shall prepare
and sign a joint report covering their respective areas of
responsibility.
(b) HHS requires that each CAR be prepared in a standard format. The
template for the report is available on the ASFR/OGAPA/DA Internet Web
site. As long as the standard headings are included and required
information is addressed, the OPDIV may include additional information
in accordance with OPDIV procedures.
(1) The CAR shall be based on information and data for all
acquisitions that exceed the micro-purchase threshold for the applicable
fiscal year, unless otherwise noted in the standard format.
(2) Each OPDIV CA shall obtain the information and data needed for
preparation of the CAR from the responsible HCA and/or the CCO, as
appropriate, who shall assist the CA in preparing the CAR.
(3) Prior to forwarding the CAR to the HHS CA, each OPDIV CA shall
provide the CAR to the responsible HCA, who shall review and approve it
for accuracy and completeness.
(c) The HHS CA shall consolidate all OPDIV CARs and provide an HHS-
wide CAR that addresses all requirements of FAR 6.502(b) to the HHS SPE
and the CAO by December 20 of each year or the next business day, if the
due date falls on a non-business day.
[[Page 35]]
PART 307_ACQUISITION PLANNING
Subpart 307.1_Acquisition Planning
Sec.
Sec. 307.104 General procedures.
Sec. 307.104-70 Acquisition strategy.
Sec. 307.104-71 Purpose and timing.
Sec. 307.105 Contents of written acquisition plans.
Sec. 307.108-70 Telecommuting of contractor employees.
Subpart 307.70_Considerations in Selecting an Award Instrument.
Sec. 307.7000 Scope of subpart.
Sec. 307.7001 Distinction between acquisition and assistance.
Sec. 307.7002 Procedures.
Subpart 307.71_Acquisition Plan.
Sec. 307.7100 Scope of subpart.
Sec. 307.7101 Policy.
Sec. 307.7102 Content.
Sec. 307.7103 Format.
Sec. 307.7104 Review and certification.
Sec. 307.7105 Transmittal.
Sec. 307.7106 Acquisition milestones.
Sec. 307.7107 Responsibilities.
Sec. 307.7108 Statement of work.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 307.1_Acquisition Planning
Sec. 307.104 General procedures.
(a) Each contracting activity shall prepare an Annual Acquisition
Plan (AAP) as far in advance of each fiscal year as possible, in
accordance with the following:
(1) The AAP shall contain all anticipated acquisition actions for
the coming fiscal year that exceed the simplified acquisition threshold,
including new acquisitions and contract/order modifications. The AAP
must include--
(i) The aggregate dollars planned for simplified acquisitions by
quarter;
(ii) Any long lead-time acquisitions that will be awarded in future
fiscal years (see paragraph (c) below); and
(iii) Proposed multi-agency and intra-agency contracts--see 317.70.
(2) The HCA or the CCO, as appropriate, shall prepare the AAP and
obtain the information needed for its preparation from the responsible
program planning/budget office and/or the program offices.
(3) Contracting activities shall use the AAP for reporting purposes
and workload scheduling and monitoring.
(4) The HCA/CCO and Small Business Specialist (SBS) in the Office of
Small and Disadvantaged Business Utilization (OSDBU) shall review the
AAP at least quarterly, with input from the cognizant program office,
and modify it, as appropriate, during the fiscal year, with updated
information, particularly regarding the specific acquisition method the
contracting activity plans to use.
(5) HHS requires use of a standard format for an AAP. The template
for the plan is available on the ASFR/OGAPA/DA Internet Web site. For
the data elements specified in the AAP format, the HCA/CCO may include
information in addition to that required by the standard instructions
accompanying the format.
(b) As early as possible following completion of the AAP, the
Contracting Officer shall initiate discussions with the assigned Project
Officer, in consultation with the OSDBU SBS, for each action that
exceeds the simplified acquisition threshold. As appropriate, the
discussions shall include--
(1) Determining the intended acquisition strategy and contract/order
type, including the use of options;
(2) Reviewing the SOW, if available, for adequacy and ensuring that
a PWS is used for services, where practicable;
(3) Evaluating the potential for, and maximizing the use of,
competitive procedures;
(4) Performing market research, identifying potential sources, and
determining set-aside potential and small business subcontracting
opportunities;
(5) Assessing the availability of commercial items;
(6) Determining required clearances/approvals and supporting
documentation; and
(7) Preparing an acquisition milestone schedule;
(8) Determining the best multi- or intra-agency contracting activity
to assist in awarding a contract on the requiring organization's behalf,
if applicable; and
[[Page 36]]
(9) Determining in the case of direct ordering that the chosen
acquisition vehicle is the best way to obtain the required product or
service, if a vehicle other than those listed in 317.7002(b) is
proposed.
(c) The HCA or designee (not lower than the CCO) shall establish
standard lead-times for processing various types of acquisitions and
applicable fiscal year deadlines for receipt of requirements to allow
for well-planned and timely awards. The Project Officer shall initiate
planning, to the extent possible, for certain requirements, such as
major capital IT investments, major capital construction investments,
and R & D projects that require peer review, at least 24 months before
planned award, given the clearance/approval requirements and lead-time
required for such complex acquisitions.
(d) The outcome of the discussions referenced in paragraph (b) above
shall be an agreement concerning the acquisition approach and
documentation required. For those actions that require development of a
written AP--see 307.7101, for which the Project Officer has ultimate
responsibility, these discussions shall also result in an agreement
concerning--
(1) Which elements of the AP the Contracting Officer will assist the
Project Officer in preparing; and
(2) The date (as specified in the milestone schedule) the Project
Officer will provide the AP to the CCO or designee.
Sec. 307.104-70 Acquisition strategy.
Program and Project Managers responsible for major IT capital
investments (and for any other investments designated by the HHS CIO,
DASFMP, the CAO, or the cognizant HCA) shall prepare an acquisition
strategy using the HHS acquisition strategy template. The template for
the acquisition strategy is available on the ASFR/OGAPA/DA Internet Web
site. Program and Project Managers must initiate the acquisition
strategy for major IT capital investments as part of the planned
investment's business case, usually during the Enterprise Performance
Life Cycle concept phase.
Sec. 307.104-71 Purpose and timing.
(a) The purpose of an acquisition strategy is to describe the
overall approach for acquiring capabilities needed to fulfill
investment/programmatic objectives. Acquisition strategy development
requires identification of issues and risks that might impact an
acquisition(s) to allow early action to eliminate or mitigate the issues
and risks.
(b) An acquisition strategy differs from an AP with respect to the
timing of its development and the level of detail required.
(1) An acquisition strategy is established at the inception (concept
phase) of an investment/acquisition to support the business case,
identify and mitigate risks, and begin the acquisition planning process.
An acquisition strategy addresses the major issues surrounding business
objectives, competitive forces, and various risks that need to be
considered.
(2) An acquisition strategy is a living document used throughout the
investment's life-cycle. It should be continuously updated with the
active involvement of the Program or Project Manager and the Contracting
Officer at appropriate points, as plans for the investment/acquisition
mature. An acquisition strategy ultimately will result in an AP--see
307.71.
(3) An AP, which is required to support proposed acquisitions
expected to exceed $500,000 (inclusive of options, with certain
exceptions)--see 307.7101, is developed closer to the time of
solicitation. The AP addresses not only those issues in the acquisition
strategy, but also the tactical details of how the acquisition will be
executed.
Sec. 307.105 Contents of written acquisition plans.
FAR 7.105 specifies the content requirements of a written AP.
Subpart 307.71 incorporates and supplements those requirements.
Sec. 307.108-70 Telecommuting of contractor employees.
(a) SOWs/PWSs shall permit offerors or contractors to specify their
own place(s) of performance (hence authorize their employees to
telecommute), except as follows:
[[Page 37]]
(1) The Project Officer may restrict place of performance (hence
restrict an offeror's or contractor's telecommuting) for any part of an
SOW/PWS, after determining that the work or any portion thereof must be
performed at a specified place of performance; or security would be
compromised. The Project Officer must document this determination in
writing and send a copy of the determination, along with the SOW/PWS, to
the Contracting Officer. The Project Officer must also address in an HHS
AP (or other acquisition request document) any performance requirements
or security considerations that restrict place of performance--see
307.71.
(2) In accordance with FAR 7.108(a), if the Contracting Officer
concurs with the Project Officer's determination in (a)(1) above, then
the Contracting Officer must sign the Project Officer's determination;
include it in the official contract file; and specify any prohibition
against telecommuting in the solicitation and resultant contract.
(3) In accordance with FAR 7.108(a), if the Contracting Officer
decides to restrict a place of performance that the Project Officer did
not restrict, then the Contracting Officer must document in writing the
determination to preclude telecommuting in part or in whole; include the
determination in the official contract file; and specify any prohibition
against telecommuting in the solicitation and resultant contract.
(b) If the Contracting Officer disagrees with the Project Officer's
determination in (a)(1) above, then the Contracting Officer shall return
both the SOW/PWS and determination to the Project Officer for further
consideration.
(c) The Contracting Officer shall ensure that authorized
telecommuting of contractor employees does not result in increased cost
or price to the Government.
Subpart 307.70_Considerations in Selecting an Award Instrument
Sec. 307.7000 Scope of subpart.
This subpart provides guidance on the appropriate selection of award
instruments to fulfill program needs consistent with 31 U.S.C. 6301-
6308. This subpart explains the use of the contract as the award
instrument for acquisition relationships and a grant or cooperative
agreement as instruments for financial assistance relationships.
Sec. 307.7001 Distinction between acquisition and assistance.
(a) 31 U.S.C. 6301-6308 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 eligible entities to accomplish a public purpose
of support or stimulation authorized by Federal statute.
(b) OPDIVs shall use a contract as the legal instrument to reflect a
relationship between the Government and an entity whenever the--
(1) 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 Government; or
(2) Government determines 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 requires the Associate DAS
for Acquisition's prior approval.
(c) OPDIVs shall use a grant or cooperative agreement as the legal
instrument to reflect a relationship between the Government and an
entity whenever the principal purpose of the relationship is the
transfer of money, property, services, or anything of value to
accomplish a public purpose of support or stimulation authorized by
Federal statute.
(1) OPDIVs shall use a grant when no substantial programmatic
involvement is anticipated between the Government and the recipient
during performance of the contemplated activity.
(2) OPDIVs shall use a cooperative agreement when substantial
programmatic involvement is anticipated between the Government and the
recipient during performance of the contemplated activity.
[[Page 38]]
(d) As a general rule, OPDIVs shall use contracts 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) Production of publications or audiovisual materials the
Government requires primarily for the conduct of its direct operations.
(7) Design or development of items for Government use or pursuant to
agency definition or specifications.
(8) Conferences conducted on the Government's behalf.
(9) Generation of management information or other data for
Government use.
Sec. 307.7002 Procedures.
(a) OPDIV program officials shall use existing budget and program
planning procedures to propose new activities and major changes in
ongoing programs. OPDIV program officials shall meet with the HCA and
the Chief Grants Management Officer, or their designees, as necessary,
to determine whether award is to be made through the acquisition or
assistance process. This determination shall normally occur prior to the
time when the AAP is reviewed and approved so that the AAP will reflect
all known proposed contract actions. The HCA shall fully document a
shift from one award instrument to another in the appropriate files to
show a fundamental change in program purpose that unequivocally
justifies the rationale for the shift.
(b) The Contracting Officer shall confirm the appropriateness of the
use of the contract instrument when reviewing the AP or other
acquisition request document.
(c) OPDIVs shall ensure that the choice of instrument is in
accordance with 31 U.S.C. 6301-6308 and applicable HHS 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 instrument, OPDIVs shall obtain guidance from ASFR/OGAPA/DA,
through appropriate acquisition channels, including the HCA, before
proceeding with a determination.
(d) Any public notice, program announcement, solicitation, or
request for applications or proposals, or request for quotations shall
indicate whether the intended relationship will be one of acquisition or
financial assistance and specify the award instrument the OPDIV will
use.
Subpart 307.71_Acquisition Plan
Sec. 307.7100 Scope of subpart.
FAR 7.102 requires acquisition planning for all acquisitions. This
subpart establishes: (a) when a written AP is required; (b) its contents
and format; and (c) the need for review of the AP to certify that it is
accurate, complete, and in the proper format. This subpart also
establishes the documentation requirements for those acquisitions not
requiring an AP.
Sec. 307.7101 Policy.
(a) An AP is required for all acquisitions, to be placed by an HHS
contracting office, expected to exceed $500,000 (inclusive of options)
with the following exceptions:
(1) Letter contracts.
(2) Unsolicited proposals.
(3) Regulated utility services available from only one source.
(4) Proposals under the Small Business Innovative Research (SBIR)
and
[[Page 39]]
Small Business Technology Transfer (STTR) programs.
(5) Acquisition of commercial items/services--see FAR 2.101,
including orders placed under FSS contracts meeting the definition of a
commercial item/service, and not exceeding $5.5 million [$11 million for
acquisitions as described in FAR 13.500(e)].
(6) Task orders or delivery orders of any dollar amount placed
under--
(i) An IDIQ contract, other than a GWAC; or
(ii) A BPA, provided there is an approved acquisition planning
document for the original action, and there is no significant deviation
from that plan.
(7) Orders of any dollar amount placed under HHS-wide strategic
sourcing vehicles.
(8) Contract/order modifications that--
(i) Exercise options;
(ii) Only provide additional funding; or
(iii) Make changes authorized by the Changes clause.
(9) Assisted acquisitions processed pursuant to an interagency
agreement. However, the OPDIV must comply with the requirements
specified in 317.5 Interagency Agreements under the Economy Act and
317.70, Multi-agency and Intra-agency Contracts.
(b) In urgent or other justifiable cases, such as an emergency
acquisition--see FAR Part 18, the HCA may waive, in writing, the
requirement for completion of an AP. An HCA shall not approve a waiver
request based on the lack of advance planning.
(1) The Project Officer, the Project Officer's immediate supervisor,
the head of the sponsoring program office, the Contracting Officer, and
other signatories shall sign the waiver request in accordance with OPDIV
policies. In OPDIVs where a CCO(s) is designated, as defined in 302.101,
the cognizant CCO also shall sign the waiver request.
(2) HHS has established a standard format for preparing an AP waiver
request. The template for the waiver request is available on the ASFR/
OGAPA/DA Internet Web site. Contracting activities shall use this format
when requesting a waiver.
(3) The OPDIV shall provide ASFR/OGAPA/DA a copy of any approved
waiver request within 5 business days after HCA approval.
(c) For those acquisitions not requiring an AP, other than assisted
acquisitions processed pursuant to an interagency agreement--see 317.5
and 317.70, the Project Officer shall provide an acquisition request
document (e.g., memorandum, requisition, or other form of transmittal)
to the CCO or designee, requesting completion of the required action.
The request must include, as applicable: a SOW/PWS (including
deliverables and reporting requirements); a certified funding document;
source selection strategy and criteria; necessary clearances, approvals,
and justifications (e.g., a JOFOC); a milestone schedule; and an
independent Government cost estimate.) In addition, OPDIVs shall use the
content requirements of the AP as a reference in determining what other
information and documentation is necessary to support the intended
acquisition. Alternatively, OPDIVs may prescribe use of an AP for
acquisitions excepted under 307.7101(a)(1) through (a)(8).
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21510, Apr. 26, 2010]
Sec. 307.7102 Content.
In accordance with 307.105, the FAR, HHSAR, and other Federal
requirements that OPDIVs must consider in developing an AP, as well as
its format, are stipulated in 307.7103. An AP shall address each
applicable element. As indicated in the instructions, elements that are
not applicable to an individual acquisition shall be marked ``N/A.'' The
scope and depth of an AP may vary depending on the nature, complexity,
and estimated cost of the proposed acquisition. As a result of new or
revised FAR requirements or other Federal directives, the--
(a) HCA or designee may make any needed interim changes to the AP;
(b) HCA or designee shall notify ASFR/OGAPA/DA of the need to revise
the AP; and
(c) ASFR/OGAPA/DA shall update the AP, which would supersede any
interim HCA (or designee) changes made
[[Page 40]]
to the acquisition plan for future acquisitions.
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21510, Apr. 26, 2010]
Sec. 307.7103 Format.
(a) HHS has established a standard format for preparing an AP. The
template for the AP is available on the ASFR/OGAPA/DA Internet Web site.
(b) OPDIVs may use the prescribed format without modification or use
it as a guideline, as long as the format used by the OPDIV complies with
the requirements specified in subparagraphs (c) and (d) below.
(c) An AP must consist of seven (7) parts with standard headings, as
follows:
Part I Transmittal and Approval Form.
Part II Summary Sheet.
Part III Project Considerations and Information.
Part IV Clearance/Approval Checklist.
Part V Acquisition Milestone Schedule.
Part VI Independent Government Cost Estimate.
Part VII Attachments.
(d) Within each of the seven parts, there are required components
that an OPDIV cannot modify and specific areas where OPDIVs can make
changes. The table in the Requirements and Responsibilities section of
the AP cites the titles, paragraph/subparagraph headings, narrative, and
other requirements that must appear in each part of an AP in the
specified format, as well as permissible modifications.
Sec. 307.7104 Review and certification.
Before the Project Officer transmits the AP to the CCO or designee--
see 307.7105, the head of the sponsoring program office (typically a
Division Director or equivalent), Project Officer, Funds Certification
Official, Contracting Officer, and other signatories in accordance with
OPDIV policies, shall review the AP and certify that it provides all
required information in the prescribed format and the following:
(a) Vague and ambiguous language has been eliminated.
(b) A thorough technical review of the SOW/PWS has been completed.
(c) The project is structured by phases or tasks, as appropriate.
(d) Methods are available to assess the contractor's performance.
(e) The acquisition mechanism is appropriate--i.e., the principal
purpose of the project is to acquire supplies or services for the direct
benefit or use of the Government.
(f) The planned obligation of appropriated funds for the project
satisfies a bona fide need of the requiring office arising in the fiscal
year for which the appropriation was made.
Sec. 307.7105 Transmittal.
The Project Officer shall convey the signed AP to the CCO or
designee by providing a completed Part I--Transmittal and Approval Form,
with other parts of the AP attached, no later than the date agreed to in
the acquisition milestone schedule, unless the officials establish a
different date by mutual agreement.
Sec. 307.7106 Acquisition milestones.
The Contracting Officer shall retain the acquisition milestone
schedule in the contract file and update/revise it to track progress of
the acquisition. The milestone schedule signatories (see the
Requirements and Responsibilities section of the AP--Part V of the
table) shall mutually agree to any revisions to the milestone dates that
will impact meeting the scheduled award date. Milestone schedule
signatories shall report a failure to meet established milestones to a
higher level official in accordance with OPDIV procedures.
Sec. 307.7107 Responsibilities.
The following table summarizes the responsibilities of the various
organizations and officials for acquisition planning:
------------------------------------------------------------------------
Responsible
Acquisition planning organization/official HHSAR reference
------------------------------------------------------------------------
Make necessary interim changes OPDIV HCA or designee. 307.7102.
to the AP and notify ASFR/
OGAPA/DA of changes needed.
[[Page 41]]
Update the AP to reflect new ASFR/OGAPA/DA......... 307.7102.
or revised FAR and other
Federal directives.
Prepare the AAP and update it OPDIV-HCA/CCO......... 307.104,
quarterly, as appropriate. subparagraph
(a).
Establish standard acquisition OPDIV-HCA/CCO......... 307.104,
lead-times and deadlines for subparagraph
receipt of requirements for (d).
award in an applicable fiscal
year.
Identify and plan OPDIV-Project Officer. 307.104,
requirements, particularly subparagraph
complex, long lead-time (d).
acquisitions, well in advance
of the fiscal year in which
they are to be awarded.
(i) Participate in acquisition OPDIV-Project Officer. (i) 307.104,
planning; (ii) prepare the subparagraph
AP; and (iii) provide the AP (c);
to the Contracting Officer. (ii) 307.104,
subparagraph
(e); and (iii)
307.7105.
(i) Participate in acquisition OPDIV-Contracting (i) 307.104,
planning; and (ii) assist the Officer. subparagraph
Project Officer in AP (c);
preparation. (ii) 307.104,
subparagraph
(e).
Waive requirement for OPDIV-HCA............. 307.7101,
development of an AP when subparagraph
justified. (b).
Review and certify that an AP OPDIV-Head of the 307.7104
is complete, accurate, and in Sponsoring Program
the proper format. Office, Project
Officer, Funds
Certification
Official, Contracting
Officer, and other
signatories in
accordance with OPDIV
policies.
Meet established acquisition OPDIV-Project Officer 307.7106.
milestone dates. and Contracting
Officer.
------------------------------------------------------------------------
Sec. 307.7108 Statement of work.
(a) General. An SOW describes the work or services a contractor is
to perform in reaching an end result without describing the method that
the contractor shall use, unless the method of performance is critical
or required in order to obtain successful performance. An SOW shall be
clear and concise; completely define the responsibilities of both the
contractor and the Government; and be worded to make misinterpretation
virtually impossible.
(b) Term (level of effort)form and completion form SOWs. Term-form
(level of effort) SOWs essentially require the furnishing of technical
effort, which may include a report thereof, while completion-form SOWs
require development of tangible items designed to meet specific
performance and/or design characteristics--see FAR 16.306(d) for this
distinction.
(1) Term (or level of effort). A term or level of effort-form SOW is
appropriate for research where the objective is to discover the
feasibility of later development or to gather general information. A
term or level of effort-form SOW specifies 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.
(2) Completion. A completion-form SOW is appropriate for development
work where the feasibility of producing an end item is already known. A
completion-form SOW may describe what is to be achieved through the
contracted effort, such as development of new methods, new end items, or
other tangible results.
(c) 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 the contractor must complete and the
Contracting Officer approve before the contractor may proceed to the
next phase or stage. Phasing makes it necessary to develop methods and
controls, including reporting requirements for each phase of the
contract and criteria for evaluation of the report submitted, that will
provide, at the earliest possible time, appropriate data for making
decisions relative to future phases. A phased contract, such as one for
an R & D or demonstration project,
[[Page 42]]
may include stages of accomplishment. Within each phase, there may be a
number of tasks that the SOW should include. When phases of work can be
identified, the SOW shall provide for phasing and the solicitation shall
require offerors to submit proposed costs by phases. The resultant
contract shall reflect costs by phases, require the contractor to
identify incurred costs by phases, establish delivery schedules by
phase, and require the written acceptance of each phase. The Contracting
Officer shall not allow contractors to incur costs for phases that are
dependent upon successful completion of earlier phases until the
Contracting Officer provides written acceptance of the prior work.
(d) Elements of the SOW. The elements of the SOW may vary with the
objective, complexity, size, and nature of the acquisition. In general,
the SOW shall include the following:
(1) Purpose of the project. This includes a general description of
the objectives of the project and the desired results.
(2) Background information. This includes a brief history of the
project and the importance of the project to the overall program
objectives.
(3) A detailed description of the technical requirements. The SOW
shall provide sufficient detail to accurately reflect the Government's
requirement. It shall state what is to be accomplished without
prescribing the method the contractor is to use and shall include
performance standards, if applicable. See 307.104(b)(2) and FAR 37.602
for guidance on preparation of a PWS. An SOW may include tasks and
subtasks. The degree of breakout depends on the size and complexity of
the project. An SOW shall indicate whether the tasks are sequential or
concurrent.
(4) Reference material. This includes an explanation of all
reference material a contractor needs to carry out the project; the
applicability of the reference material; and a statement as to where
potential offerors can obtain the material.
(5) Level of effort. When a level of effort is necessary, the SOW
shall specify the number and type of personnel required, if known, and
the type and degree of expertise.
(6) Special requirements (as applicable). This includes providing,
in a separate section, any unusual or special contractual requirements
that may affect performance. For example, the SOW shall specify
separately the work requirements to implement information security
management requirements--see 339.71 for additional information.
(7) Deliverables and reporting requirements. This includes clearly
and completely describing all deliverables and reports, including the
time frame for completion, the format, and the required number of
copies.
PART 308_REQUIRED SOURCES OF SUPPLIES AND SERVICES
Subpart 308.4_Federal Supply Schedules
Sec.
Sec. 308.404 Use of Federal Supply Schedules.
Sec. 308.405-6 Limited source justification and approval.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 308.4_Federal Supply Schedules
Sec. 308.404 Use of Federal Supply Schedules.
(f) Technical Evaluation. When conducting a technical evaluation of
quotations or proposals received under FAR Part 8, the provisions of
315.305(a)(3) apply.
Sec. 308.405-6 Limited source justification and approval.
(g)(1) As required by FAR 8.405-1 or 8.405-2, the responsible
program office must provide a written justification whenever it requests
an acquisition under the FSS program that restricts consideration of the
number of schedule contractors or to an item peculiar to one
manufacturer. The justification must be submitted with the AP or other
acquisition request document--see 307.71. The Project Officer has
responsibility for preparing the justification with assistance, as
necessary, from the Contracting Officer.
(i) Justifications for orders at or below the simplified acquisition
[[Page 43]]
threshold may be in the form of a paragraph or paragraphs contained in
the requisition or other acquisition request document. Justifications
for orders in excess of the simplified acquisition threshold shall be in
the form of a separate, self-contained document, prepared in accordance
with FAR 8.405-6(g) and 308.405-6(g), and titled ``Limited Source
Justification'' (LSJ). HHS requires use of a standard format for an LSJ.
The template for the justification is available on the ASFR/OGAPA/DA
Internet Web site. Additional information may be included in the LSJ
template in accordance with OPDIV procedures.
(ii) Regardless of dollar amount of the acquisition, justifications
shall--
(A) Fully describe what is to be acquired;
(B) Cite specific reasons that explain why it is necessary to
restrict consideration of sources;
(C) Be supported by verifiable facts rather than untested or
unsubstantiated opinions or conclusions; and
(D) Be written in a manner to permit an individual without technical
knowledge of the requirement to understand the supporting rationale.
(iii) Preliminary arrangements with, or verbal or written
commitments to, a proposed contractor shall be avoided given the
requirement to obtain competition for FSS orders using the procedures in
FAR Subpart 8.4--see also FAR 6.102(d)(3).
(iv) Justifications for non-FSS orders to be awarded without full
and open competition shall comply with FAR 6.303 and 306.303.
(h) Justification approvals.
Certification, concurrence, and approval requirements. The Project
Officer, the Project Officer's immediate supervisor, the head of the
sponsoring program office, and the Contracting Officer shall certify
that the justification is accurate and complete by signing the LSJ. For
acquisitions in the dollar amount cited in FAR 8.405-6(h)(2) through
(h)(4), the CCO, if applicable, and the HCA shall indicate their review
of, and concurrence with, the justification by signing the LSJ. The
approving officials for LSJs are as follows:
(1) The Contracting Officer shall exercise this approval authority
unless a higher approval level is required by OPDIV procedures.
(2) The CAs are listed in 306.501. This approval authority is not
delegable.
(3) The CA shall exercise this approval authority, except where the
individual designated as the competition advocate does not meet the
requirements of FAR 8.405-6(h)(3)(ii). This approval authority is not
delegable.
(4) The HHS SPE is the Associate DAS for Acquisition.
PART 309_CONTRACTOR QUALIFICATIONS
Subpart 309.4_Debarment, Suspension, and Ineligibility
Sec.
Sec. 309.403 Definitions.
Sec. 309.404 List of parties excluded from Federal procurement and non-
procurement programs.
Sec. 309.405 Effect of listing.
Sec. 309.406 Debarment.
Sec. 309.406-3 Procedures.
Sec. 309.407 Suspension.
Sec. 309.407-3 Procedures.
Sec. 309.470 Reporting of suspected causes for debarment or suspension
or the taking of evasive actions.
Sec. 309.470-1 Situations where reports are required.
Sec. 309.470-2 Contents of reports.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 309.4_Debarment, Suspension, and Ineligibility
Sec. 309.403 Definitions.
Acquiring agency's head or designee, as used in the FAR, means,
unless otherwise stated in this subpart, the HCA. The HCA may make the
required justifications or determinations and take the necessary actions
specified in FAR 9.405, 9.406 and 9.407, only after obtaining the
written approval of the debarring or suspending official, as
appropriate.
Debarring official means the Deputy Assistant Secretary for Grants
and Acquisition Policy and Accountability (DAS/GAPA).
[[Page 44]]
Initiating official means the Contracting Officer, the HCA, the
Associate DAS for Acquisition, or the Inspector General (IG).
Suspending official means the DAS/GAPA.
Sec. 309.404 List of parties excluded from Federal procurement and non-
procurement programs.
(c) The ASFR/OGAPA/DA shall perform the actions required by FAR
9.404(c).
(4) The ASFR/OGAPA/DA shall maintain all documentation the
initiating official submits to recommend the debarment or suspension
action and all correspondence and other pertinent documentation
generated during the review.
Sec. 309.405 Effect of listing.
(a) The HCA (non-delegable) may, with the written concurrence of the
debarring or suspending official, make the determinations referenced in
FAR 9.405(a) regarding contracts.
(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 appropriate
acquisition channels to the HCA. The documentation shall include the
date by which approval is required and a compelling reason for the
proposed action. Compelling reasons for award of a contract or consent
to a subcontract with a debarred or suspended contractor include the
following:
(i) Only the cited contractor can provide the property or services.
(ii) The urgency of the requirement dictates that HHS conduct
business with the cited contractor.
(2) If the HCA decides to approve the requested action, the HCA
shall request the concurrence of the debarring or suspending official
and, if given, shall inform the Contracting Officer in writing of the
decision within the required time period.
Sec. 309.406 Debarment.
Sec. 309.406-3 Procedures.
(a) Investigation and referral. When an apparent cause for debarment
becomes known, the initiating official shall prepare a report containing
the information required by 309.470-2, along with a written
recommendation, and forward it through appropriate acquisition channels,
including the HCA, to the Associate DAS for Acquisition in accordance
with 309.470-1. The debarring official shall initiate an investigation.
(b) Decision making process. The debarring official shall review the
results of the investigation, if any, and make a written determination
whether or not debarment procedures shall commence. The ASFR/OGAPA/DA
shall promptly send a copy of the determination through appropriate
acquisition channels to the initiating official and the Contracting
Officer. If the debarring official determines that debarment procedures
shall commence, the debarring official shall consult with OGC-GLD and
then 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
action specified in FAR 9.406-3(b)(2). The debarring official shall also
ensure that written findings of facts are prepared and shall base the
debarment decisions on the facts as found, after considering information
and argument submitted by the contractor and any other information in
the administrative record. The OGC-GLD shall represent HHS at any fact-
finding hearing and may present witnesses for HHS and question any
witnesses presented by the contractor.
Sec. 309.407 Suspension.
Sec. 309.407-3 Procedures.
(a) Investigation and referral. When an apparent cause for
suspension becomes known, the initiating official shall prepare a report
containing the information required by 309.470-2 along with a written
recommendation and forward
[[Page 45]]
it through appropriate acquisition channels, including the HCA, to the
suspending official in accordance with 309.470-1. The suspending
official shall initiate an investigation.
(b) Decision making process. The suspending official shall review
the results of the investigation, if any, and make a written
determination whether or not suspension shall occur. ASFR/OGAPA/DA shall
send a copy of the determination through appropriate acquisition
channels to the initiating official and the Contracting Officer. If the
suspending official determines that suspension is necessary, the
suspending official shall consult with OGC-GLD and then 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 imposing the suspension, arrange for fact-finding hearings
and take the necessary actions specified in FAR 9.407-3(b)(2).
Sec. 309.470 Reporting of suspected causes for debarment or suspension
or the taking of evasive actions.
Sec. 309.470-1 Situations where reports are required.
The Contracting Officer shall forward a report, incorporating the
information required by 309.470-2, through appropriate acquisition
channels, including the HCA, to the Associate DAS for Acquisition
whenever a contractor--
(a) 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) Is suspected of attempting to evade the prohibitions of
debarment or suspension imposed under this subject, or any other
comparable regulation, by changes of address, multiple addresses,
formation of new companies, or by other devices.
Sec. 309.470-2 Contents of reports.
The Contracting Officer shall coordinate each report prepared under
309.470-1 with OGC-GLD and include the following information, when
available:
(a) Contractor name and address.
(b) Name of the principal officers, partners, owners, or managers.
(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 to 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 the 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 the 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 contractor's action, including an explanation of the
method used in making the estimate.
(k) The comments and recommendations of the Contracting Officer and
statements indicating whether the contractor should be suspended or
debarred, whether any limitations are necessary, 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.
PART 310_MARKET RESEARCH
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
[[Page 46]]
Sec. 310.001 Policy.
(a) OPDIVs are encouraged to conduct market research, to the maximum
extent practicable, consistent with the urgency, complexity, and dollar
value of a proposed acquisition, as well as their past experience with
the same or similar requirements.
(3)(i) An OPDIV may issue an advance notice, entitled ``Sources
Sought'' in FedBizOpps in accordance with the requirements of FAR Part
5, whenever a sufficient number of sources has not been identified to
obtain adequate competition for a non-R & D project. The primary purpose
of a Sources Sought notice is to identify all potential sources,
regardless of organizational type and size classification, and determine
their capabilities to fulfill a potential Government requirement. The
notice is not intended to solicit technical, scientific, or business
information for project planning purposes regarding existing or
potential solutions. In the latter instance, an RFI may be used--see FAR
15.201(e) and 315.201(e).
(ii) When using a Sources Sought notice, an OPDIV shall not request
that potential sources provide more than the minimum information
necessary--see FAR 10.001(b), to determine whether they have the
apparent capability to perform a requirement and, therefore, whether
they should be included in any future competition. The notice and the
information received shall not be used to determine how well respondents
can perform a requirement, which can only be evaluated in response to a
solicitation. Accordingly, the notice shall not be used to--
(A) Obtain capability statements that are evaluated and determined
acceptable or unacceptable;
(B) Require cost/price proposals or detailed technical solutions;
(C) Identify a prospective sole source; or
(D) Exclude small business concerns.
(iii) While not the primary intent of a Sources Sought notice, in
addition to seeking information regarding all potential qualified
sources, the notice may request that respondents provide information
regarding their organizational size classification. For example, the
notice may ask respondents to identify whether they are small
businesses; HUBZone small businesses; service-disabled, veteran-owned
small businesses; 8(a) small businesses; veteran-owned small businesses;
woman-owned small businesses; or small disadvantaged businesses in order
to determine the appropriate acquisition method, including whether a
set-aside is possible. However, such a notice shall not be used solely
to determine the size classification of respondents for a proposed non-R
& D acquisition. In such instances, a ``Small Business Sources Sought''
notice may be used--see 319.202-2, in lieu of the procedures in this
section.
(iv) OPDIVs shall follow the standard HHS instructions for
completing a Sources Sought notice. The Contracting Officer shall post
the notice in FedBizOpps by selecting and completing a Sources Sought
notice. The template for the notice is available on the ASFR/OGAPA/DA
Internet Web site. Additional information may be included in the notice
in accordance with OPDIV procedures. The Contracting Officer shall
document, in the form of a memorandum to the file, the results of the
review by technical personnel of information submitted in response to
the notice, including whether each respondent appears to be capable of
performing the requirement. The Contracting Officer shall attach a copy
of the analysis provided by the technical personnel to the memorandum.
(v) In instances where a sufficient number of sources has not been
identified to compete for an R & D project, OPDIVs may use the
procedures specified in 305.205, including the issuance of an ``R & D
Sources Sought'' notice, as appropriate, in lieu of the procedures in
this section.
[74 FR 62398, Nov. 27, 2009]
PART 311_DESCRIBING AGENCY NEEDS
Subpart 311.70_Section 508 Accessibility Standards
Sec.
Sec. 311.7000 Defining electronic information technology requirements.
[[Page 47]]
Sec. 311.7001 Section 508 accessibility standards for HHS Web site
content and communication materials.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 311.70_Section 508 Accessibility Standards
Sec. 311.7000 Defining electronic information technology requirements.
HHS staff that define agency needs for EIT products and services,
including EIT deliverables such as electronic documents and reports, and
perform market research to meet those needs, shall document EIT
requirements, identify the applicable Section 508 accessibility
standards, and document the market research. OPDIVs may develop
procedures for these activities, based on the level of agency investment
and risk, and shall ensure any procedures developed are in conformance
with FAR Part 10. Procedures for defining EIT requirements may, but are
not required to, include the use of the Buy Accessible Wizard (http://
www.buyaccessible.gov), managed by GSA, or other Federal agency tools.
Sec. 311.7001 Section 508 accessibility standards for HHS Web site
content and communications materials.
(a) Section 508 of the Rehabilitation Act of 1973 [29 U.S.C.
794(d)], as amended by the Workforce Investment Act of 1998, (Section
508) specifies the accessibility standards that apply to all new
solicitations and new or existing contracts or orders, regardless of
dollar amount, for communications products and services that require a
contractor or consultant to produce content in any format that is
specifically intended for publication on, or delivery via, an HHS-owned
or -funded Web site.
(b) Accordingly, before forwarding a request to the contracting/
ordering office for the acquisition of communications products and
services, including content in any format, such as reports, documents,
charts, posters, presentations (such as Microsoft PowerPoint), or video
material that is specifically intended for publication on, or delivery
via, an HHS-owned or -funded Web site, the Project Officer shall consult
with the OPDIV/STAFF Division (DIV) Section 508 Official or Coordinator,
as necessary, to determine the applicability of Section 508, identify
applicable Section 508 accessibility standards, and resolve any related
issues.
(c) Based on those discussions, the Project Officer shall provide a
statement in the AP (or other acquisition request document)--see
307.7101, as to the applicability of Section 508. If Section 508 applies
to an acquisition, the Project Officer shall include the following ``HHS
Section 508 Accessibility Standards Notice'' language in a separate,
clearly designated section of the SOW/PWS, and any additional
information applicable to the acquisition's Section 508 accessibility
standards [e.g., the list of applicable accessibility standards of the
Architectural and Transportation Barriers Compliance Board (Access
Board) Final Rule (36 CFR Part 1194)]. If an AP does not address these
issues, and it appears an acquisition involves Section 508, or if the
discussion of Section 508 applicability to the acquisition is inadequate
or incomplete, the Contracting Officer shall request that the Project
Officer modify the AP accordingly.
HHS Section 508 Accessibility Standards Notice (September 2009)
This contract is subject to Section 508 of the Rehabilitation Act
(the Act) of 1973 (29 U.S.C. 794d), as amended by the Workforce
Investment Act of 1998, and the Architectural and Transportation
Barriers Compliance Board (Access Board) Electronic and Information
Accessibility Provisions (36 CFR Part 1194). Section 508 of the Act
requires that, unless an exception applies, all communications products
and services that require a contractor or consultant to produce content
in any format that is specifically intended for publication on, or
delivery via, a Federally owned or Federally funded Web site permit the
following:
(1) Federal employees with disabilities to have access to and use
information and data that is comparable to the access and use of
information and data by Federal employees who are not individuals with
disabilities.
[[Page 48]]
(2) Members of the public with disabilities seeking information or
services from a Federal agency to have access to and use of information
and data that is comparable to the access and use of information and
data by members of the public who are not individuals with disabilities.
Note: Information about Section 508 of the Act is available at
http://www.section508.gov/. The complete text of Section 508 can be
accessed at http://www.access-board.gov/sec508/provisions.htm.
Accordingly, regardless of format, all Web content or communications
materials specifically produced for publication on, or delivery via, HHS
Web sites, including text, audio, or video, under this contract shall
conform to applicable Section 508 accessibility standards. Remediation
of any materials that do not comply with the applicable accessibility
standards of 36 CFR Part 1194 as set forth herein shall be the
responsibility of the Contractor.
The following Section 508 accessibility standards apply to the
content or communications material identified in this SOW or PWS:
Note: The Project Officer shall list the applicable accessibility
standards of the Access Board Final Rule (36 CFR Part 1194) (e.g., ``36
CFR 1194.21(a)-(j).'' Most Web-based text and communication must meet
the accessibility standards in 36 CFR 1194.22, ``Web-based intranet and
Internet information and applications.'' Additionally, 36 CFR 1194.41,
``Information, documentation and support,'' and 36 CFR 1194.24 ``Video
and multimedia products'' apply to all written, graphical, or broadcast
video materials or products produced for HHS, including training. 36 CFR
1194.41(c) specifies that support services for products shall
accommodate the communication needs of end-users with disabilities.
PART 312_ACQUISITION OF COMMERCIAL ITEMS
Subpart 312.1_Acquisition of Commercial Items_General
Sec.
Sec. 312.101 Policy
Subpart 312.2_Special Requirements for the Acquisition of Commercial
Items.
Sec. 312.202(d) Market research and description of agency need.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 312.1_Acquisition of Commercial Items_General
Sec. 312.101 Policy.
(a) It is HHS policy to leverage its buying power, reduce
acquisition administrative costs, and develop long-term, mutually
beneficial partnerships with best-in-class providers of products and
services. Accordingly, HHS has implemented a Strategic Sourcing Program
through which it awards BPAs or other contract vehicles to achieve
savings for commercial items and services across HHS and make the
acquisition process more efficient. OPDIVs shall use HHS' strategic
sourcing vehicles to the maximum extent possible--see the HHS strategic
sourcing portion of the ASFR/OGAPA/DA intranet site for further
information.
Subpart 312.2_Special Requirements for the Acquisition of Commercial
Items
Sec. 312.202(d) Market research and description of agency need.
Whenever an OPDIV/STAFFDIV requires EIT products and services
subject to Section 508 of the Rehabilitation Act of 1973, as amended,
commercially available products and services shall be acquired to the
maximum extent possible while ensuring Section 508 compliance.
Consistent with paragraph 4.3.1 of the HHS Section 508 policy--see
Section 508 policy on the HHS Office on Disability Web site, if products
and services are commercially available that meet some but not all of
the applicable Section 508 accessibility standards, and no commercially
available products or services meet all of the applicable Section 508
accessibility standards, an OPDIV/STAFFDIV shall acquire the products
and services that best meet the applicable Section 508 accessibility
standards. Commercial nonavailability exception determinations for EIT
products and services that do not meet some or all of the applicable
Section 508 accessibility standards shall be processed in accordance
with 339.203.
[[Page 49]]
SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES
PART 313_SIMPLIFIED ACQUISITION PROCEDURES
Sec.
Sec. 313.003 Policy.
Subpart 313.1_Procedures.
Sec. 313.106-2 Evaluation of quotations or offers.
Subpart 313.3_Simplified Acquisition Methods
Sec. 313.301 Government-wide commercial purchase card.
Sec. 313.303 Blanket purchase agreements.
Sec. 313.303-5 Purchases under blanket purchase agreements.
Subpart 313.5_Test Program for Certain Commercial Items
Sec. 313.501 Special documentation requirements.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Sec. 313.003 Policy.
EIT products and services, including EIT deliverables such as
electronic documents and reports, acquired pursuant to FAR Part 13 shall
comply with Section 508 of the Rehabilitation Act of 1973, as amended.
Consistent with paragraph 4.3.1 of the HHS Section 508 policy--see
Section 508 policy on HHS Office on Disability Web site, if products and
services, including commercially available items, meet some but not all
of the applicable Section 508 accessibility standards, and no
commercially available products or services meet all of the applicable
Section 508 accessibility standards, an OPDIV/STAFFDIV shall acquire the
products and services that best meet the applicable Section 508
accessibility standards. Commercial nonavailability exception
determinations for EIT products and services that do not meet some or
all of the applicable Section 508 accessibility standards shall be
processed in accordance with 339.203.
Subpart 313.1_Procedures
Sec. 313.106-2 Evaluation of quotations or offers.
(b)(5) Technical Evaluation. When conducting a technical evaluation
of quotations or proposals received under FAR Part 13, the provisions of
315.305(a)(3) apply.
Subpart 313.3_Simplified Acquisition Methods
Sec. 313.301 Government-wide commercial purchase card.
(b) HHS' procedures for the use and control of the Government-wide
commercial purchase card may be found in the HHS Purchase Card Program
Guide, available on the ASFR/OGAPA/DA Web site.
(1) ASFR/OGAPA/DA has overall responsibility for monitoring the
OPDIVs' implementation of the HHS purchase card program to foster
compliance with FAR 13.301; OMB Circular A-123, Appendix B, ``Improving
the Management of Government Charge Card Programs;'' GSA's SmartPay
Program guidance; and HHS Purchase Card program standards.
(2) The OPDIVs, through their designated Agency/Organization Program
Coordinators, are responsible for establishing the necessary local
procedures and appropriate training requirements to ensure effective
implementation of the HHS purchase card program.
(3) OPDIVs shall refer to 313.003 and the HHS Purchase Card Program
Guide for information regarding acquiring EIT products and services
subject to Section 508 of the Rehabilitation Act of 1973, as amended.
Sec. 313.303 Blanket purchase agreements.
Sec. 313.303-5 Purchases under blanket purchase agreements.
(e)(5) HHS personnel that sign delivery documents, invoices, etc.,
verifying the receipt of an item or service shall forward such documents
to the fiscal office or other paying office that the
[[Page 50]]
OPDIV designates. The fiscal or other paying officer shall use the
signed document, invoice, etc., as the basis for payment. Alternatively,
OPDIVs may use electronic methods to document, and transmit to the
paying office, the receipt, inspection, and acceptance of items or
services for payment purposes, provided such methods are authorized in
local fiscal procedures. Contracting offices shall establish procedures
to ensure that funds are available prior to placement of orders.
Subpart 313.5_Test Program for Certain Commercial Items
Sec. 313.501 Special documentation requirements.
(a)(1)
(i) The justification requirements of 306.303-1(b) and 306.303-
1(b)(1) through (b)(4) apply to proposed noncompetitive acquisitions
placed under FAR Subpart 13.5.
(ii) The HHS standard format for JOFOCs cited in 306.303-1(b)(1)
shall be used to support noncompetitive acquisitions in excess of the
simplified acquisition threshold placed under FAR Subpart 13.5.
(iii) The certification, concurrence, and approval requirements
cited in 306.304 for JOFOCs apply to applicable noncompetitive
acquisitions placed under FAR Subpart 13.5.
(2)
(i) The Contracting Officer shall exercise this approval authority
unless a higher approval level is required by OPDIV procedures.
(ii) The CAs are listed in 306.501. This approval authority is not
delegable.
(iii) The CA shall exercise this approval authority, except where
the individual designated as the competition advocate does not meet the
requirements of FAR 6.304(a)(3)(ii). This approval authority is not
delegable.
(iv) The HHS SPE is the Associate DAS for Acquisition.
PART 314_SEALED BIDDING
Subpart 314.1_Use of Sealed Bidding
Sec.
Sec. 314.103 Policy.
Subpart 314.2_Solicitation of Bids
Sec. 314.202 General rules for solicitation of bids.
Sec. 314.202-7 Facsimile bids.
Subpart 314.4_Opening of Bids and Award of Contract
Sec. 314.404 Rejection of bids.
Sec. 314.404-1 Cancellation of invitations after opening.
Sec. 314.407 Mistakes in bids.
Sec. 314.407-3 Other mistakes disclosed before award.
Sec. 314.407-4 Mistakes after award.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 314.1_Use of Sealed Bidding
Sec. 314.103 Policy.
EIT products and services, including EIT deliverables such as
electronic documents and reports, acquired using sealed-bid procedures
shall comply with Section 508 of the Rehabilitation Act of 1973, as
amended. Consistent with paragraph 4.3.1 of the HHS Section 508 policy--
see Section 508 policy on HHS Office of Disability Web site, if products
and services, including commercially available items, meet some but not
all of the applicable Section 508 accessibility standards, and no
commercially available products or services meet all of the applicable
Section 508 accessibility standards, an OPDIV/STAFFDIV shall acquire the
products and services that best meet the applicable Section 508
accessibility standards. Commercial nonavailability exception
determinations for EIT products and services that do not meet some or
all of the applicable Section 508 accessibility standards shall be
processed in accordance with 339.203.
Subpart 314.2_Solicitation of Bids
Sec. 314.202 General rules for solicitation of bids.
Sec. 314.202-7 Facsimile bids.
(c) If the HCA (non-delegable) determines that the contracting
activity will allow use of facsimile bids and proposals, the HCA shall
prescribe internal procedures, in accordance with the
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FAR 14.202-7, to ensure uniform processing and control.
Subpart 314.4_Opening of Bids and Award of Contract
Sec. 314.404 Rejection of bids.
Sec. 314.404-1 Cancellation of invitations after opening.
(c) The HCA or CCO (non-delegable) shall make the agency head
determinations specified in FAR 14.404-1.
Sec. 314.407 Mistakes in bids.
Sec. 314.407-3 Other mistakes disclosed before award.
(e) The CCO (non-delegable) has the authority to make determinations
under paragraphs (a), (b), (c), and (d) of FAR 14.407-3.
(f) OGC-GLD shall concur in each proposed determination.
(i) The CCO shall submit directly to OGC-GLD cases in which the
evidence is not clear and convincing or is otherwise doubtful.
Sec. 314.407-4 Mistakes after award.
(c) The HCA or the CCO (non-delegable), in consultation with OGC-
GLD, has the authority to make administrative determinations in
connection with mistakes in bid alleged after award.
(d) OGC-GLD shall concur in each proposed determination.
PART 315_CONTRACTING BY NEGOTIATION
Subpart 315.2_Solicitation and Receipt of Proposals and Information
Sec.
Sec. 315.201 Exchanges with industry before receipt of proposals.
Sec. 315.204-5 Part IV--Representations and instructions.
Sec. 315.208 Submission, modification, revision, and withdrawal of
proposals.
Sec. 315.209 Solicitation provisions and contract clauses.
Subpart 315.3_Source Selection.
Sec. 315.303-70 Policy.
Sec. 315.304 Evaluation factors and significant subfactors.
Sec. 315.305 Proposal evaluation.
Sec. 315.306 Exchanges with offerors after receipt of proposals.
Sec. 315.307 Proposal revisions.
Sec. 315.370 Finalization of details with the selected source.
Sec. 315.371 Contract preparation and award.
Sec. 315.372 Preparation of negotiation memorandum.
Subpart 315.4_Contract Pricing
Sec. 315.404 Proposal analysis.
Sec. 315.404-2 Information to support proposal analysis.
Sec. 315.404-4 Profit.
Subpart 315.6_Unsolicited Proposals
Sec. 315.605 Content of unsolicited proposals.
Sec. 315.606 Agency procedures.
Sec. 315.606-1 Receipt and initial review.
Sec. 315.609 Limited use of data.
Subpart 315.70_Acquisition of Electronic Information Technology
Sec. 315.7000 Section 508 accessibility standards.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 315.2_Solicitation and Receipt of Proposals and Information
Sec. 315.201 Exchanges with industry before receipt of proposals.
(e)(1) An OPDIV may issue an advance notice, entitled ``Request for
Information,'' in accordance with the requirements of FAR 15.201(e),
whenever it requires technical, scientific, and/or business information
and input from the marketplace for project planning purposes regarding
the availability of existing or potential solutions. An RFI may be used
for any type of requirement, but is particularly appropriate for complex
projects involving R & D, IT, construction, and other highly technical
requirements. An RFI may also be issued to identify issues about the
Government's requirements and the planned acquisition strategy. Use of
an RFI generally is appropriate under the following conditions:
(i) It is not clear whether the purpose and performance requirements
of a potential or planned project are feasible, achievable, and
complete.
(ii) It is not certain that a solution, technical approach, or
product needed to accomplish a potential or planned
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project exists or can be developed, particularly in the case of a new,
highly specialized/unique Government program mandate.
(iii) It is necessary to test the marketplace to determine if there
are questions or concerns regarding the use of a new or innovative
acquisition strategy or instrument previously untried to accomplish a
potential or planned project.
(iv) It is necessary to determine the general effort or time
(estimate or rough order of magnitude) that may be required to
accomplish a potential or planned project.
Note: This type of information may be requested, only if it is
necessary, broad in scope, and required for planning purposes. Detailed
estimates must not be requested.
(v) It is necessary to ensure that unduly restrictive technical or
business/acquisition requirements are not made part of any resultant
solicitation so that maximum competition is generated.
(2) When using an RFI, an OPDIV shall not request that potential
sources provide more than the minimum information necessary--see FAR
10.001(b), to obtain the input required. The notice and the information
received shall not be used to determine how well respondents can perform
a requirement, which can only be evaluated in response to a
solicitation. Accordingly, the notice shall not be used to--
(i) Obtain capability statements that are evaluated and determined
acceptable or unacceptable;
(ii) Require cost/price proposals or detailed technical solutions;
(iii) Identify a prospective sole source; or
(iv) Exclude small business concerns.
(3) While not the primary intent of an RFI, an OPDIV may
additionally request that respondents provide information regarding
their organizational size classification and capabilities when the OPDIV
is uncertain whether any organization, acting individually or in
partnership with others, can satisfy the requirement. For example, the
notice may ask respondents to identify whether they are small
businesses; HUBZone small businesses; service-disabled, veteran-owned
small businesses; 8(a) small businesses; veteran-owned small businesses;
woman-owned small businesses; or a small disadvantaged businesses.
However, an RFI shall not be used solely to determine the availability
of qualified sources for a proposed project or to determine their size
classification. In such instances, as applicable, an R & D Sources
Sought notice, Sources Sought notice, or Small Business Sources Sought
notice may be used--see HHSAR 305.205, 310.001, and 319.202-2.
(4) OPDIVs shall follow the standard HHS instructions for completing
an RFI. The template for an RFI is available on the ASFR/OGAPA/DA
Internet Web site. The Contracting Officer shall post the notice in
FedBizOpps by selecting and completing a Special Notice, accessible on
the FedBizOpps ``Notices'' page at: http://www.fedbizopps.gov. RFIs must
be published, at a minimum, in FedBizOpps--see FAR 10.002(b)(2)(iii) and
15.201(d). Additional information may be included in an RFI in
accordance with OPDIV procedures. The Contracting Officer shall
document, in the form of a memorandum to the file, the results of the
review by technical personnel of information submitted in response to
the notice, including whether each respondent appears to be capable of
performing the requirement. The Contracting Officer shall attach a copy
of the analysis provided by the technical personnel to the memorandum.
Sec. 315.204-5 Part IV--Representations and instructions.
(c) Section M, Evaluation factors for award.
(1) General.
(i) The Project Officer shall develop technical evaluation factors
and submit them to the Contracting Officer as part of the acquisition
plan or other acquisition request documentation for inclusion in a
solicitation. The Project Officer shall indicate the relative importance
or weight of the evaluation factors based on the requirements of an
individual acquisition. Since the evaluation factors will serve as the
standard for proposal evaluation, they require careful selection.
(ii) Only a formal amendment to a solicitation can change the
evaluation factors. Evaluation of proposals shall
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include only those factors set forth in a solicitation.
(2) Review of evaluation factors.
(i) The Contracting Officer shall review evaluation factors to
ensure they are consistent with the SOW/PWS. This review is not intended
to dictate technical requirements to the program office or Project
Officer, but rather to ensure that the evaluation factors 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 shall review
the evaluation factors to ascertain the following:
(A) The factors address the key programmatic concerns which the
offerors must be aware of in preparing proposals.
(B) The factors are specifically applicable to the current
acquisition and are not restatements of factors from previous
acquisitions which are not relevant.
(C) The factors represent only the significant areas of importance,
rather than a multitude of factors. (Note: All factors tend to lose
importance, if too many are included; and using too many factors may
prove as detrimental as using too few.)
(3) Examples of topics that form a basis for evaluation factors.
Typical examples of topics that form a basis for the development of
evaluation factors are listed in the following paragraphs. These
examples may assist in the development of actual evaluation factors for
a specific acquisition, as appropriate.
(i) Understanding of the SOW/PWS.
(ii) Method of accomplishing the objectives and intent of the SOW/
PWS.
(iii) Soundness of the scientific or technical approach for
executing the requirements of the SOW/PWS, including, 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 or practicality of successfully accomplishing the
requirements (including 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
previous experience).
(viii) Availability, qualifications, experience, education, and
competence of professional, technical, and other personnel, including
proposed subcontractors and consultants (as evidenced by resumes,
endorsements, and explanations of previous efforts).
(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.
(x) Quality of offeror's past performance on recent projects of
similar size and scope.
(xi) Extent of proposed participation of small disadvantaged
business concerns in performance of the contract.
Sec. 315.208 Submission, modification, revision, and withdrawal of
proposals.
(b) In addition to the provision in FAR 52.215-1, Instructions to
Offerors--Competitive Acquisition, if an HCA determines that certain
classes of biomedical or behavioral R & D acquisitions are subject to
conditions other than those specified in FAR 52.215-1(c)(3), the HCA may
authorize for use in competitive solicitations for R & D, valued at more
than the simplified acquisition threshold, the use of the provision in
352.215-70, Late Proposals and Revisions. This is an authorized FAR
deviation.
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(2) When the provision at 352.215-70 is included in the solicitation
and a proposal is received after the exact time specified for receipt,
the Contracting Officer, with the assistance of cost and technical
personnel, shall make a written determination as to whether the proposal
meets the requirements of the provision at 352.215-70 and, therefore,
can be considered.
Sec. 315.209 Solicitation provisions and contract clauses.
(a) The Contracting Officer shall insert paragraph (e) in 352.215-1
in place of paragraph (e) in the provision in FAR 52.215-1, Instructions
to Offerors--Competitive Acquisition, in solicitations for competitive,
negotiated acquisitions valued at more than the simplified acquisition
threshold. This is an authorized FAR deviation.
Subpart 315.3_Source Selection
Sec. 315.303-70 Policy.
(a) If an OPDIV is required by statute to use peer review for
technical review of specified contracts, the requirements of those
statutes, any implementing regulatory requirements, the Federal Advisory
Committee Act, and as applicable, any approved HHSAR deviation(s) from
this subpart take precedence over the otherwise applicable requirements
of this subpart.
(1) The statutes that require such review and implementing
regulations are as follows: NIH--42 U.S.C. 289a and 42 CFR Part 52h;
SAMHSA--42 U.S.C. 290aa-3, and AHRQ--42 U.S.C. 299c-1.
Sec. 315.304 Evaluation factors and significant subfactors.
(a) A solicitation for EIT products and services, including EIT
deliverables such as electronic documents and reports, shall include a
separate technical evaluation factor (which may be in the form of a
technical evaluation criterion or a mandatory qualification criterion,
as appropriate) developed by the Contracting Officer, Project Officer,
and the OPDIV Section 508 Coordinator to determine vendor compliance
with applicable Section 508 accessibility standards. The technical
evaluation panel's assessment of Section 508 accessibility standards
conformance shall be based on the Section 508 Product Assessment
Template--see Section 508 policy on Office of Disability Web site for
the template, and on any other pertinent information that offerors
provide in response to a solicitation. The HHS Office on Disability is
responsible for providing technical assistance in Section 508 evaluation
factor development.
(b) Before conducting negotiations or making an award, the
Contracting Officer shall provide a summary of the technical evaluation
panel's assessment of vendor responses to the solicitation's Section 508
evaluation factor for review by the Section 508 Official or designee.
The Section 508 Official or designee shall indicate approval/disapproval
of the evaluation panel's assessment. The Contracting Officer shall
coordinate the resolution of any issues raised by the Section 508
Official or designee with the chair of the technical evaluation panel or
Project Officer, as appropriate. The acquisition process shall not
proceed unless and until the Section 508 Official or designee has
approved the technical evaluation panel's assessment. The Contracting
Officer shall include the assessment in the official contract file. See
339.203 regarding processing exception determination requests.
Sec. 315.305 Proposal evaluation.
(a)(1) Cost or price evaluation.
(i) The Contracting Officer shall evaluate proposals in accordance
with the FAR 15.404. The extent of cost or price analysis in each case
depends on the availability of competition, contract type, the proposed
amount, and technical complexity.
(A) For competitive firm-fixed-price and fixed price with economic
price adjustment contracts, price analysis should be sufficient to
determine price fairness and reasonableness.
(B) When competition is not adequate for the above contract types,
and for cost-reimbursement and time and materials contracts, cost
analysis may be required. In such cases, the Contracting Officer shall
request the Project Officer's assistance in analyzing the following cost
elements, if
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applicable, to determine if the proposed amounts are necessary and
reasonable for efficient contract performance:
(1) The number and mix of proposed labor hours relative to the
technical requirements.
(2) Types, numbers and hours/days of proposed consultants.
(3) The kinds and quantities of material, equipment, supplies, and
services.
(4) Kinds and quantities of IT.
(5) Logic of proposed subcontracting.
(6) Travel proposed, including number of trips, locations, purpose,
and travelers.
(7) Other direct costs not specified above.
(ii) The Project Officer shall provide written comments, including
the rationale for any exceptions to the cost elements. The Contracting
Officer shall consider the Project Officer's comments for negotiations
or to support award without discussions. The Contracting Officer shall
also request assistance of a cost/price analyst, when necessary.
(2) Past performance evaluation. When evaluating past performance,
the Contracting Officer shall check references to obtain information
concerning the performance history of offerors in compliance with FAR
42.1502. The Contracting Officer may require the assistance of the
Project Officer as well as other Government technical personnel in
performing this function.
(3) Technical evaluation.
(i) Technical evaluation plan.
(A) The Contracting Officer shall require a technical evaluation
plan if the proposed acquisition either requires preparation of an AP--
see 307.71 or is otherwise sufficiently complex.
(B) The technical evaluation plan shall include, at a minimum, the
following elements:
(1) A list of recommended technical evaluation panel members, their
organizations, a list of their major consulting clients (if applicable),
their qualifications, and curricula vitae (if applicable).
(2) A statement that the technical evaluation panel will include
non-Federal technical proposal evaluators, if applicable, and a
determination that sufficient Federal technical proposal evaluators are
unavailable--see FAR 37.204. A determination to use non-Federal proposal
evaluators shall be signed at a level no lower than the HCA. A
determination is not required, however, if non-Federal evaluators will
be used in accordance with 315.303-70(a).
(3) A statement that there is no apparent or actual conflict of
interest regarding any recommended panel member.
(4) A copy of each rating sheet, approved by the Contracting
Officer, to ensure consistency with the evaluation criteria.
(5) A brief description of the general evaluation approach.
(6) A description of the methodology for evaluating key elements in
the technical evaluation plan, including any solicitation evaluation
factor involving the acquisition of EIT products and services subject to
Section 508.
(C) Except as provided in OPDIV procedures, a program office
official at least one level above the Project Officer shall approve the
technical evaluation plan.
(D) The Project Officer shall provide the technical evaluation plan
to the Contracting Officer for review and approval before the
solicitation is issued. The Contracting Officer shall ensure that the
evaluation criteria reflect the significant factors and subfactors
relating to the evaluation when conducting the review of the plan.
(ii) Technical evaluation panel.
(A) General.
(1) A technical evaluation panel is required for all acquisitions
subject to this subpart that require preparation of an AP. The
Contracting Officer may require a technical evaluation panel for
acquisitions that do not require preparation of an AP, based on the
complexity of the acquisition and the role that the technical evaluation
will have in the award decision.
(2) The technical evaluation process requires careful consideration
regarding the size, composition, expertise, and function of the
technical evaluation panel. The panel's efforts will influence the
success or failure of the acquisition.
(3) At least 50 percent of the HHS personnel on a technical
evaluation
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panel shall have successfully completed HHS University's ``Basic
Contracting Officer's Technical Representative'' course or an equivalent
course within 4 years before assuming their designated role. This
training requirement applies to evaluators performing the initial
technical evaluation and any subsequent technical evaluations, but does
not apply to peer review panel members. The Contracting Officer may
waive this training requirement in exigent circumstances if documented
in writing and approved by the Head of Contracting Activity. This
training requirement applies to evaluators performing the initial
technical evaluation and any subsequent technical evaluations. However,
this training requirement does not apply to peer review panel members.
(B) Role of the Project Officer.
(1) The Project Officer provides guidance, information, and
assistance to the Contracting Officer on all technical aspects of a
proposed acquisition--see 302.101. The Project Officer may be a voting
member of the technical evaluation panel and may serve as the
chairperson of the panel unless prohibited by law or contracting
activity procedures.
(2) The Project Officer shall recommend panel members who have
sufficient expertise in the technical aspects of the acquisition to be
able to evaluate strengths and weaknesses in proposals.
(3) The Project Officer shall ensure that persons possessing
expertise and experience in addressing issues relative to sex, race,
national origin, and disability are included as panel members for
acquisitions to which such issues apply.
(4) The Project Officer shall submit a list of recommended panel
members to a program office official at least one level higher than him/
herself. This official shall review the list and select the chairperson.
(5) The Project Officer shall arrange for adequate and secure
working space for the panel.
(C) Role of the Contracting Officer.
(1) The term ``Contracting Officer,'' as used in this subpart, may
be the Contracting Officer or a Contract Specialist possessing an
appropriate FAC-C certification.
(2) The Contracting Officer shall not serve as a member of the
technical evaluation panel, but shall--
(i) Address the initial meeting of the technical evaluation panel;
(ii) Provide assistance to the evaluators as required; and
(iii) Ensure that the scores adequately reflect the written
technical report comments.
(D) Conflict of interest.
(1) If a panel member has an actual or apparent conflict of interest
related to a proposal under evaluation, the individual cannot serve on
the panel. If a suitable replacement is not available, the panel shall
perform the review without a replacement.
(2) For the purposes of this subpart, conflicts of interest are
defined in the Standards of Ethical Conduct for Employees of the
Executive Branch (5 CFR part 2635), Supplemental Standards of Ethical
Conduct for Employees of the Department of Health and Human Services (5
CFR part 5501), and the Procurement Integrity Act. For outside
evaluators serving on the technical evaluation panel, see paragraph
(a)(3)(ii)(F) of this section.
(E) Continuity of evaluation process.
(1) The technical evaluation panel shall evaluate all original
proposals; make recommendations to the chairperson regarding strengths
and weaknesses of proposals; if required by the Contracting Officer,
assist the Contracting Officer during communications and discussions;
and review supplemental, revised or final proposal revisions. To the
extent possible, the same evaluators shall be available throughout the
entire evaluation and selection process to ensure continuity and
consistency in the treatment of proposals. The following are examples of
circumstances when it would not be necessary for the technical
evaluation panel to evaluate revised proposals submitted during the
acquisition:
(i) The answers to questions do not have a substantial impact on the
proposal.
(ii) Final proposal revisions are not materially different from the
original proposals.
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(iii) Revisions to the proposals are relatively minor and do not
affect the rankings of the offerors.
(2) The Contracting Officer, with the written concurrence of the
technical evaluation panel chairperson, may decide not to have the panel
evaluate the revised proposals. The Contracting Officer shall fully
document such a decision in the contract file.
(3) When the Contracting Officer considers technical evaluation
panel meetings necessary, the attendance of evaluators is mandatory.
When the chairperson determines that an evaluator's failure to attend
the meetings is prejudicial to the evaluation, the chairperson shall
remove or replace the individual after discussing the situation with the
Contracting Officer and obtaining the Contracting Officer's concurrence
and the approval of the official responsible for appointing the panel
members.
(4) When continuity of the evaluation process is not possible, and
new evaluators are selected or the size of the evaluation panel is
reduced, each panel member shall review all proposals at the current
stage of the acquisition--i.e., initial proposal, final proposal
revisions, etc. Also, the Contracting Officer shall provide guidance
concerning what steps to take if an unusually large number of proposals
is received, including how to determine what constitutes an unusually
large number of proposals.
(F) Use of outside evaluators.
(1) Except when peer review is required by statute as provided in
315.303-70(a), decisions to disclose proposals to evaluators outside of
the Government shall be made by the official responsible for appointing
panel members in accordance with OPDIV procedures. The avoidance of
organization conflict of interest and competitive relationships must be
taken into consideration when making the decision to use outside
evaluators.
(2) When a solicited proposal will be disclosed outside the
Government for evaluation purposes, the following or similar conditions
shall be part of the written agreement with the evaluator(s) prior to
disclosure:
Conditions for Evaluating Proposals
The evaluator agrees to use the data (trade secrets, business data,
and technical data) contained in the proposal for evaluation purposes
only. The foregoing requirement does not apply to data obtained from
another source without restriction. Any notice or legend placed on the
proposal by either HHS or the submitter of the proposal shall be applied
to any reproduction or abstract provided to the evaluator or made by the
evaluator. Upon completion of the evaluation, the evaluator shall return
to the Government the furnished copy of the proposal or abstract, and
all copies thereof, to the HHS office which initially furnished the
proposal for evaluation. Unless authorized by the HHS initiating office,
the evaluator shall not contact the submitter of the proposal concerning
any aspects of its contents. The evaluator's employees and
subcontractors shall abide by these conditions.
(iii) Receipt of proposals.
(A) After the closing date for the receipt of proposals set in the
solicitation, the Contracting Officer shall forward the technical
proposals, by memorandum, to the Project Officer or chairperson for
evaluation. The Contracting Officer shall retain the business proposals
for evaluation.
(B) The transmittal memorandum shall include at least the following
elements:
(1) A list of the names of the organizations submitting proposals.
(2) A reference to the need to preserve the integrity of the source
selection process.
(3) A statement that only the Contracting Officer is authorized to
conduct discussions.
(4) A requirement for a technical evaluation report in accordance
with paragraph (a)(3)(vi) of this section.
(5) The establishment of a date for receipt of the technical
evaluation report.
(iv) Convening the technical evaluation panel.
(A) Normally, the technical evaluation panel convenes to evaluate
proposals. However, there may be situations when the panel chairperson
determines that it is not feasible for the panel to convene. Whenever
the panel does not convene, the panel chairperson shall closely monitor
the technical review to produce acceptable results.
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(B) When a panel convenes, the chairperson shall control the
technical proposals provided by the Contracting Officer for use during
the evaluation process. The chairperson normally distributes the
technical proposals prior to the initial panel meeting and establishes
procedures for securing the proposals whenever they are not being
evaluated to ensure their confidentiality. After an evaluation is
completed, the chairperson shall return all proposals to the Contracting
Officer.
(C) The Contracting Officer shall address the initial meeting of the
panel and state the basic rules for conducting the evaluation. The
Contracting Officer shall provide written guidance to the panel, if the
Contracting Officer cannot attend the initial panel meeting. The
guidance shall include the following elements:
(1) An explanation of the evaluation process and the role of
evaluators throughout the process.
(2) The need for evaluators to read and understand the solicitation,
especially the SOW/PWS and evaluation criteria, prior to reading the
proposals.
(3) The need for evaluators to restrict the review to only the SOW/
PWS, the evaluation criteria, and the contents of the technical
proposals.
(4) The need for each evaluator to review all of the proposals.
(5) The need for evaluators to identify ambiguities,
inconsistencies, errors, and deficiencies.
(6) The need for the evaluators to provide complete written
documentation of the individual strengths and weaknesses for each
proposal.
(7) An instruction specifying that, until an award is made, they may
not disclose information concerning the acquisition to any person not
directly involved in the evaluation process.
(8) An explanation of conflicts of interest.
(v) Rating and ranking of proposals. The evaluators shall
individually read each proposal, describe tentative strengths and
weaknesses, and independently assign preliminary scores in relation to
each evaluation factor set forth in the solicitation. The evaluators may
then discuss in detail the individual strengths and weaknesses described
by each evaluator and, if possible, arrive at a common understanding of
the major strengths and weaknesses and the potential for correcting each
offeror's weakness(es). Each evaluator shall assign a final score to
each proposal, and the technical evaluation panel shall collectively
rank the proposals. Normally, ranking is the result of adding the
numerical scores assigned to the evaluation factors and determining the
average for each offeror. The evaluators shall then identify whether
each proposal is acceptable or unacceptable. The technical evaluation
panel shall not employ predetermined cutoff scores.
(vi) Technical evaluation report. The chairperson shall prepare a
technical evaluation report and provide it to the Contracting Officer,
who shall maintain it as a permanent record in the contract file. The
report shall reflect the ranking of the proposals and identify each
proposal as acceptable or unacceptable. The report shall also include a
narrative evaluation specifying the strengths and weaknesses of each
proposal, and any reservations, qualifications, or areas to be addressed
that might bear upon the selection of sources for negotiation and award.
The report shall include concrete technical reasons supporting any
determination of unacceptability of a proposal and, for acceptable
proposals, include specific points and questions for discussions or
negotiations. The technical evaluation report shall also include a copy
of each signed rating sheet, unless the Contracting Officer determines,
in accordance with FAR 15.305(a)(3)(ii), and 315.305(a)(3)(vi), that the
technical evaluation report includes appropriate and sufficiently
detailed supporting narrative (with specific references to particular
portions of offerors' proposals) to (1) fully and reasonably explain the
basis for the technical evaluation panel's assessments of each proposal,
including an evaluation rating of ``acceptable'' or ``unacceptable; and
(2) support any recommendation to include or not include a proposal in
the competitive range. However, when peer review of proposals is
required as provided in 315.303-70(a), OPDIVs shall follow applicable
peer review guidelines
[[Page 59]]
and practices regarding the submission, maintenance, and disposal of
reviewer rating sheets.
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21510, Apr. 26, 2010]
Sec. 315.306 Exchanges with offerors after receipt of proposals.
(d) Exchanges with offerors after establishment of the competitive
range. The Project Officer or technical evaluation panel shall develop
technical questions as part of the technical evaluation report. The
questions shall disclose the ambiguities, weaknesses, and deficiencies
of offeror(s)' proposals. The Contracting Officer, with the assistance
of the Project Officer or panel as required, shall prepare the
management, past performance, and cost or price questions. The method of
requesting offerors in the competitive range to submit additional
information may vary depending on the complexity of the questions, the
extent of additional information necessary, the time needed to analyze
the responses, and the time frame for making the award. However, to the
extent practicable, all questions and answers shall be in writing. The
Contracting Officer shall give each offeror in the competitive range an
equitable period of time for preparation of responses to questions to
the extent practicable.
Sec. 315.307 Proposal revisions.
(b) Final proposal revisions are subject to--
(1) A final evaluation of price or cost and other salient factors by
the Contracting Officer and Project Officer, with assistance from a
cost/price analyst, as appropriate; and
(2) An evaluation of technical factors by the technical evaluation
panel, as necessary.
The technical evaluation panel may rescore and re-rank technical
proposals in the competitive range and prepare a technical evaluation
report. To the extent practicable, the same evaluators who reviewed the
original proposals shall perform the evaluation. The Contracting Officer
and Project Officer shall conduct a final evaluation of past
performance. The technical evaluation panel may be involved in the final
evaluation of past performance, if the panel is comprised solely of
Government personnel.
Sec. 315.370 Finalization of details with the selected source.
(a) After selection of the successful proposal, the Contracting
Officer may finalize details with the selected offeror, if necessary.
However, the Contracting Officer shall not introduce any factor that
could have an effect on the selection process after the common cutoff
date for receipt of final proposal revisions, nor shall the finalization
process in any way prejudice the competitive interest or rights of the
unsuccessful offerors. The Contracting Officer shall restrict
finalization of details with the selected offeror to definitizing the
final agreement on terms and conditions, assuming none of these factors
were involved in the selection process.
(b) Whenever a change occurs in the requirements, the Contracting
Officer shall reopen the competition, and provide all offerors
submitting final proposal revisions an opportunity to resubmit proposals
based on the revised requirements. If there is a question as to whether
a change is material and would require the initiation of a new
competition, the Contracting Officer shall obtain the advice of
technical personnel and OGC-GLD before proceeding. Significant changes
in the offeror's cost proposal may also necessitate a reopening of a
competition, if the changes alter the factors involved in the original
selection process.
(c) Upon finalization of details, the Contracting Officer shall
obtain a confirmation letter from the successful offeror which includes
any revisions to its technical proposal, the agreed upon price or cost,
and, as applicable, a certificate of current cost or pricing data.
Sec. 315.371 Contract preparation and award.
(a) After completing any activities that may be necessary to
finalize details with the selected offeror, the Contracting Officer
shall--
(1) Prepare the negotiation memorandum in accordance with 315.372;
(2) Prepare the contract containing all agreed to terms and
conditions and clauses required by law or regulation;
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(3) Include in the contract file the pertinent documents referenced
in FAR 4.803; and
(4) Obtain the appropriate approval of the proposed contract
award(s) in accordance with subpart 304.71 and contracting activity
procedures.
(b) After receiving the required approvals, the Contracting Officer
shall--
(1) Transmit the contract to the prospective contractor for
signature; and
(2) Inform the prospective contractor that the contract is not
effective until the Contracting Officer transmits the fully executed
contract to the contractor.
(c) The Contracting Officer shall not sign or issue the contract
until the finance office certifies that the funds are available for
obligation.
Sec. 315.372 Preparation of negotiation memorandum.
The Contracting Officer shall prepare a negotiation memorandum, or
summary of negotiations, to document all actions leading to award of a
contract and support the source selection decision discussed in FAR
15.308. The memorandum also satisfies the requirement for preparation of
a ``cost/price negotiation memorandum'' required by FAR 15.406-3. The
memorandum shall be in sufficient detail to explain and support the
rationale, judgments, and authorities upon which all actions were
predicated. The memorandum shall document the negotiation process and
reflect the negotiator's actions and judgments in concluding a
satisfactory agreement for the Government. The memorandum shall address
each item listed below. If an item is not applicable, the memorandum
shall so state. The Contracting Officer may reference information
already contained in the contract file rather than reiterate it.
(a) Description of articles and services and period of performance.
Provide a description of the articles or services, quantity, unit price,
total contract amount, and period of contract performance.
(b) Acquisition planning. Summarize or reference any acquisition
planning activities that have taken place.
(c) Synopsis of acquisition. Provide a statement as to whether the
acquisition has or has not been publicized in accordance with FAR
Subpart 5.2. Include a brief statement referencing the specific basis
for exemption under the FAR, if applicable.
(d) Contract type. Provide sufficient detail to support the type of
contractual instrument recommended for the acquisition. If the contract
is a cost-sharing type, explain the essential cost-sharing features.
(e) Extent of competition. Discuss the extent to which full and open
competition was solicited and obtained. Include the date of
solicitation, sources solicited, and solicitation results. If a late
proposal was received, discuss whether or not the late proposal was
evaluated and the rationale for the decision.
(f) Technical evaluation. Summarize or reference the results
presented in the technical evaluation report.
(g) Business evaluation. Summarize or reference results presented in
the business report.
(h) Past performance. Summarize or reference results of both the
past performance evaluation and reference checks.
(i) Competitive range (if applicable). Describe how the competitive
range was determined, and indicate the offerors that were included in
and excluded from the competitive range.
(j) Cost breakdown and analysis. Include a complete cost breakdown
together with the Contracting Officer's analysis of the estimated cost
by individual cost elements. The analysis shall discuss the items
specified in FAR 15.406-3 and other cost factors, such as--
(1) A comparison of cost factors proposed for the current
requirement with actual factors used in earlier contracts, using the
same cost centers of the same supplier or cost centers of other sources
having recent contracts for the same or similar item;
(2) Any pertinent Government-conducted audit of the proposed
contractor's record or any pertinent cost advisory report;
(3) Any pertinent technical evaluation inputs as to necessity,
allocability and reasonableness of labor, material and other direct
expenses;
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(4) Any other pertinent information to fully support the basis for
the cost analysis;
(5) If the contract is an incentive type, a discussion of all
elements of profit and fee structure; and
(6) A justification of the reasonableness of the contractor's
proposed profit or fixed fee considering the requirements of FAR 15.404-
4 and 315.404-4.
(k) Cost realism. Describe the cost realism analysis performed on
proposals.
(l) Government-furnished property and facilities. With respect to
Government-furnished facilities, equipment, tooling, or other property,
include the following:
(1) If the Government will not provide property, a statement to that
effect.
(2) If the Government will provide property, a full description of
it, its estimated dollar value, the basis of price comparison with
competitors, and the basis of rental charge, if rental is involved.
(3) If a decision to furnish property has not been made, a detailed
explanation.
(m) Negotiations. Include a statement as to the date and place of
negotiations, and identify members of both the Government and contractor
negotiating teams by area of responsibility. Include negotiation details
relative to the SOW/PWS, terms and conditions, and special provisions.
The results of cost or price negotiations shall include the information
required by FAR 31.109 and 15.406-3. In addition, if the potential
contractor provided cost or pricing data, specify the extent to which
the Contracting Officer relied upon the factual cost or pricing data
submitted and used it in negotiating the cost or price.
(n) Other considerations. Include coverage of areas such as the
following:
(1) Financial data with respect to a contractor's capacity and
stability.
(2) Determination of contractor responsibility.
(3) Details as to why the method of payment, such as progress
payments, advance payments, etc., is necessary and cite any required D &
F's.
(4) Information with respect to obtaining a certificate of current
cost or pricing data.
(5) Other required special approvals.
(6) If the contract represents an extension of previous work, the
status of funds and performance under the prior contract(s). Also, the
Project Officer shall provide sufficient information for the Contracting
Officer to determine that the Government has obtained enough actual or
potential value from the work previously performed to warrant
continuation with the same contractor.
(7) A statement that the Contracting Officer has explained the equal
opportunity provisions of the proposed contract to the contractor, and
the contractor is aware of its responsibilities. Also, state whether or
not an Equal Employment Opportunity (EEO) clearance is required.
(8) If the contract is for services, a statement, in accordance with
FAR 37.103, that the services are nonpersonal in nature.
(o) Terms and conditions. Identify the general and special clauses
and conditions that are contained in the contract, such as option
arrangements, multi-year contracting, anticipatory costs, deviations
from standard clauses, etc. The Contracting Officer shall state the
rationale for inclusion of any special terms and conditions and, where
applicable, identify the document which granted approval for their use.
(p) Recommendation. Briefly state the basis (or bases) for
recommending award.
(q) Signature. The Contracting Officer and the individual who
prepared the negotiation memorandum must sign the document.
Subpart 315.4_Contract Pricing
Sec. 315.404 Proposal analysis.
Sec. 315.404-2 Information to support proposal analysis.
(a)(2) When some or all information sufficient to determine the
reasonableness of the proposed cost or price is already available or can
be obtained by phone from the cognizant audit agency, the Contracting
Officer may request less-than-complete field pricing support (specifying
in the request the information needed) or may waive in writing the
requirement for audit and
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field pricing support by documenting the file to indicate what
information will be used instead of the audit report and the field
pricing report.
(3) When initiating audit and field pricing support, the Contracting
Officer shall do so by sending a request to the cognizant Administrative
Contracting Officer, with an information copy to the cognizant audit
office. When field pricing support is not available, the Contracting
Officer shall initiate an audit by sending, in accordance with agency
procedures, two (2) copies of the request to the OIG Office of Audit
Services, Regional Inspector General. In both cases, the Contracting
Officer shall, in the request--
(i) Prescribe the extent of the support needed;
(ii) State the specific areas for which input is required;
(iii) Include the information necessary to perform the review, such
as the offeror's proposal and the applicable portions of the
solicitation, particularly those describing requirements and delivery
schedules;
(iv) Provide the complete address of the location of the offeror's
financial records that support the proposal;
(v) Identify the office having audit responsibility, if other than
the HHS Regional Audit Office; and
(vi) Specify a due date for receipt of a verbal report and the
written audit report. If the time available is not adequate to permit
satisfactory coverage of the proposal, the auditor shall so advise the
Contracting Officer and indicate the additional time needed. The
Contracting Officer shall submit one copy of the audit request letter
provided to the Office of Audit Services, Regional Inspector General and
a complete copy of the contract price proposal to OIG Office of Audit
Services. Whenever the Office of Audit Services has conducted an audit
review, the Contracting Officer shall forward two (2) copies of the
memorandum of negotiation to OIG Office of Audit Services.
Sec. 315.404-4 Profit.
(b) Policy. (1) The structured approach for determining profit
provides a technique for establishing a profit objective for
negotiation. A profit objective is that part of the estimated contract
price objective or value which, in the judgment of the Contracting
Officer, constitutes an appropriate amount of profit for the acquisition
being considered. This technique allows for consideration of the profit
factors described in paragraph (d) of this section. The Contracting
Officer's analysis of these factors shall be based on available
information, such as proposals, audit data, assessment reports, and pre-
award surveys. The structured approach provides a basis for documenting
the profit objective. The Contracting Officer shall explain any
significant departure from this objective. The amount of documentation
depends on the dollar value and complexity of the proposed acquisition.
The profit objective is a part of the overall negotiation objective and
is directly related to the cost objective and any proposed sharing
arrangement. The profit objective shall exclude factors considered
inapplicable to the acquisition.
(ii) The Contracting Officer shall negotiate the profit objective at
the same time as the other cost items and as a whole rather than as
individual profit factors. The profit factor breakdown shall be part of
the documentation. The Contracting Officer shall use the profit analysis
factors in FAR 15.404-4(d) in lieu of the structured approach in the
following circumstances:
(A) Contracts not expected to exceed $100,000.
(B) A & E contracts.
(C) Management contracts for operations or maintenance of Government
facilities.
(D) Construction contracts.
(E) Contracts primarily requiring delivery of material supplies by
subcontractors
(F) Termination settlements.
(G) Cost-plus-award-fee contracts.
However, the Contracting Officer may perform a structured profit
analysis as an aid in arriving at an appropriate fee arrangement. The
Contracting Officer may make other exceptions in the negotiation of
contracts having unusual pricing situations, but shall justify in
writing those situations where the structured approach is determined to
be unsuitable.
(c) Contracting Officer responsibilities. The Contracting Officer
shall develop
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the profit objective, which shall realistically reflect the total
overall effort of the contractor. The Contracting Officer shall not
begin to develop the profit objective until he or she has completed a
thorough review of the proposed contract work; conducted a review of all
available knowledge regarding the contractor pursuant to FAR subpart
9.1, including audit data, pre-award survey reports and financial
statements, as appropriate; and completed an analysis of the
contractor's cost estimate and comparison with the Government's estimate
or projection of cost.
(d) Profit-analysis factors--(1) Common factors. The Contracting
Officer shall consider the following factors in all cases in which
profit is negotiated and shall use the weight ranges listed after each
factor in all instances where the structured approach is used.
------------------------------------------------------------------------
Profit factors Weight ranges (%)
------------------------------------------------------------------------
Contractor Effort:
Material acquisition.................. 1 to 5.
Direct labor............................ 4 to 15.
Overhead................................ 4 to 9.
General & Administrative (G & A)........ 4 to 8.
Other costs............................. 1 to 5.
Other Factors:
Cost risk............................... 0 to 7.
Investment.............................. -2 to +2.
Performance............................. -1 to +1.
Socioeconomic programs.................. -.5 to +.5.
Special situations
------------------------------------------------------------------------
(i) The Contracting Officer shall measure ``Contractor Effort'' by
assigning a profit percentage within the designated weight range to each
element of contract cost. The categories listed are for reference
purposes only, but are broad and basic enough to provide guidance for
other elements of cost. The Contracting Officer shall not include
facilities capital cost of money. ``Contractor Effort'' shall include a
computed total dollar profit.
(ii) The Contracting Officer shall use the total dollar profit for
the ``Contractor Effort'' to calculate specific profit dollars for
``Other Factors''--cost risk, investment, performance, socioeconomic
programs, and special situations. The Contracting Officer shall multiply
the total dollar profit for the ``Contractor Effort'' by the weight
assigned to each of the elements in the ``Other Factors'' category.
Facilities capital cost of money is not included. Form HHS 674,
Structured Approach Profit/Fee Objective, shall be used.
(iii) In making a judgment of the value of each factor, the
Contracting Officer shall consider the definition, description, and
purpose of the factors together with considerations for evaluating them.
(iv) The structured approach was designed for arriving at profit
objectives for other than nonprofit organizations. However, the
Contracting Officer shall use the modified structured approach in
paragraph (d)(1)(iv)(B) of this section to establish fee objectives for
nonprofit organizations.
(A) For purposes of this section, nonprofit organizations are
defined as those business entities organized and operated exclusively
for charitable, scientific, or educational purposes, no part of the net
earnings of which inure to the benefit of any private shareholder or
individual, and which are exempt from Federal income taxation under
Section 501(c)(3) of the Internal Revenue Code.
(B) For contracts with nonprofit organizations where fee is
involved, the Contracting Officer shall subtract up to three percentage
points from the total ``profit'' objective percentage. In determining
the amount of this adjustment, the Contracting Officer shall consider
the following factors:
(1) Tax position benefits.
(2) Granting of financing through advance payments.
(3) Other pertinent factors which may work to either the advantage
or disadvantage of the contractor in its position as a nonprofit
organization.
(2) Contractor effort. Contractor effort is a measure of how much
the contractor is expected to contribute to the overall effort necessary
to meet the contract performance requirement in an efficient manner.
This factor, which is apart from the contractor's responsibility for
contract performance, takes into account what resources are necessary
and what steps the contractor must take to accomplish a conversion of
ideas and material into the final service or product called for in the
contract. This is a recognition that within a given performance output,
or within a given sales dollar figure, necessary
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efforts on the part of individual contractors can vary widely in both
value and quantity, and that the profit objective shall reflect the
extent and nature of the contractor's contribution to total performance.
A major consideration, particularly in connection with experimental or R
& D work, is the difficulty or complexity of the work to be performed,
and the unusual demands of the contract, such as whether the project
involves a new approach unrelated to existing technology or equipment or
only refinements to these items. The evaluation of this factor requires
an analysis of the cost content of the proposed contract as follows:
(i) Material acquisition (subcontracted items, purchased parts, and
other material). Analysis of these cost items shall include an
evaluation of the managerial and technical effort necessary to obtain
the required subcontracted items, purchased parts, material or services.
The Contracting Officer shall determine whether the contractor will
obtain the items or services by routine order from readily available
sources or by detailed subcontracts for which the prime contractor must
develop complex specifications. The Contracting Officer shall also
consider the managerial and technical efforts necessary for the prime
contractor to select subcontractors and to perform subcontract
administration functions, which may be substantial. Normally, the lowest
unadjusted weight for direct material is two percent. A weighting of
less than two percent may be appropriate only in unusual circumstances
when there is a minimal contribution by the contractor.
(ii) Direct labor (professional, service, manufacturing and other
labor). Analysis of the various labor categories of the cost content of
the contract shall include evaluation of the comparative quality and
quantity of professional and semiprofessional talents, manufacturing and
service skills, and experience to be employed. In evaluating
professional and semiprofessional labor for the purpose of assigning
profit dollars, the Contracting Officer shall consider the amount of
notable scientific talent or unusual or scarce talent needed in contrast
to nonprofessional effort, including the contribution this talent will
provide toward the achievement of contract objectives. Since
nonprofessional labor is relatively plentiful and the contractor may
easily obtain it, it is less critical to the successful performance of
contract objectives. Therefore, the Contracting Officer cannot weight it
nearly as high as professional or semiprofessional labor. The
Contracting Officer shall evaluate service contract labor in a like
manner by assigning higher weights to engineering or professional type
skills required for contract performance and considering the variety of
manufacturing and other categories of labor skills required and the
contractor's personnel resources for meeting those requirements. For
purposes of evaluation, the Contracting Officer may separately
categorize, as appropriate, certain types of labor (e.g., quality
control, receiving and inspection), that do not fall within the
definition of professional, service or manufacturing labor; but shall
apply the same evaluation considerations as outlined in this paragraph.
(iii) Overhead and G & A expense. (A) Analysis of these overhead
items of cost shall include the evaluation of the makeup of these
expenses and how much they contribute to contract performance. To the
extent practicable, analysis shall include a determination of the amount
of labor within these overhead pools and how this labor would be treated
if it were considered direct labor under the contract. The Contracting
Officer shall give the allocable labor elements the same profit
considerations that they would receive if they were treated as direct
labor. The other elements of these overhead pools require analysis to
determine whether they are routine expenses, such as utilities and
maintenance, and hence given lesser profit consideration, or whether
they are significant contributing elements. The composite of the
individual determinations in relation to the elements of the overhead
pools shall be the profit consideration given the pools as a whole. The
procedure for assigning relative values to these overhead expenses
differs from the method used in assigning values of the direct labor.
The upper and lower limits assignable to the direct labor are absolute.
In the case of overhead
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expenses, individual expenses may be assigned values outside the range
as long as the composite ratio is within the range.
(B) It is not necessary that the contractor's accounting system
break down overhead expenses within the classifications of research
overhead, other overhead pools, and general administrative expenses,
unless dictated otherwise by Cost Accounting Standards (CAS). The
contractor whose accounting system reflects only one overhead rate on
all direct labor need not change its system, if CAS exempt, to
correspond with these classifications. The Contracting Officer, in an
evaluation of such a contractor's overhead rate, may break out the
applicable sections of the composite rate which could be classified as
research overhead, other overhead pools, and general and administrative
expenses, and follow the appropriate evaluation technique.
(C) The Contracting Officer shall consider management problems that
may surface in varying degrees and the management expertise exercised to
solve them as an element of profit. For example, a contract for a new R
& D program or an item which is on the cutting edge may cause more
problems and require more managerial time and abilities of a higher
order than a follow-on contract. If new contracts create more problems
and require a higher profit weight, the Contracting Officer shall adjust
follow-ons downward because many of the problems should have been
solved. In any event, the evaluation shall consider the underlying
managerial effort involved on a case-by-case basis.
(D) It may not be necessary for the Contracting Officer to make a
separate profit evaluation of overhead expenses, in connection with each
acquisition action for substantially the same project with the same
contractor. Where the Contracting Officer has made an analysis of the
profit weight to be assigned to the overhead pool, the weight assigned
may apply to future acquisitions with the same contractor unless there
is a change in the cost composition of the overhead pool or contract
circumstances, or unless the factors discussed in paragraph
(d)(2)(iii)(C) of this section are involved.
(iv) Other costs. Analysis of this factor shall include all other
direct costs associated with contractor performance (e.g., travel and
relocation, direct support, and consultants). Analysis of these items of
cost shall include the significance of the cost of contract performance,
nature of the cost, and how much they contribute to contract
performance. Normally, travel costs require minimal administrative
effort by the contractor and, therefore, usually receive a weight no
greater than one percent. Also, the contractor may designate individuals
as ``consultants,'' but in reality the contractor may obtain these
individuals to supplement its workforce in the performance of routine
duties required by contract. These costs would normally receive a
minimum weight. However, there may be instances when contract
performance may require the contractor to obtain the services of
consultants having expertise in fields such as medicine or human
services. In these instances, the contractor may expend greater
managerial and technical effort to obtain these services and,
consequently, the costs shall receive a much greater weight.
(3) Other factors: (i) Contract cost risk. The contract type
employed basically determines the degree of cost risk assumed by the
contractor. For example, where a portion of the risk has been shifted to
the Government through cost-reimbursement provisions, unusual
contingency provisions, or other risk-reducing measures, the amount of
profit shall be less than where the contractor assumes all the risk.
(A) In developing the prenegotiation profit objective, the
Contracting Officer shall consider the type of contract anticipated and
the contractor risk associated therewith, when selecting the position in
the weight range for profit that is appropriate for the risk the
contractor will bear. This factor is one of the most important in
arriving at the prenegotiation profit objective. Evaluation of this risk
requires a determination of: The degree of cost responsibility assumed
by the contractor; the reliability of the cost estimates in relation to
the tasks assumed by the contractor; and the complexity of the tasks
assumed by the contractor. This
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factor is specifically limited to the risk of contract costs. Risks
associated with a contractor's reputation, a contractor's potential loss
of a commercial market, or a contractor's loss of potential profits in
other fields, are not within the scope of this factor.
(B) The first and basic determination of the degree of cost
responsibility assumed by the contractor is related to the sharing of
total risk of contract cost by the Government and the contractor through
the selection of contract type. The extremes are a cost-plus-fixed-fee
contract requiring the contractor to use its best efforts to perform a
task and a firm fixed-price contract for a service or a complex item. A
cost-plus-fixed-fee contract would reflect a minimum assumption of cost
responsibility, whereas a firm-fixed-price contract would reflect a
complete assumption of cost responsibility. The determination of risk by
contract type usually falls into the following percentage ranges:
------------------------------------------------------------------------
Percent
------------------------------------------------------------------------
Cost-reimbursement type contracts.......................... 0-3
Fixed-price type contracts................................. 2-7
------------------------------------------------------------------------
(C) The second determination is that of the reliability of the cost
estimates. Sound price negotiation requires well-defined contract
objectives and reliable cost estimates. Prior experience assists the
contractor in preparing reliable cost estimates on new acquisitions for
similar efforts. An excessive cost estimate reduces the likelihood that
the cost of performance will exceed the contract price, thereby reducing
the contractor's assumption of contract cost risk.
(D) The third determination is that of the difficulty of the
contractor's task. The contractor's task can be difficult or easy,
regardless of the type of contract.
(E) Contractors are likely to assume greater cost risk only if
Contracting Officers objectively analyze the risk associated with
proposed contracts and are willing to compensate contractors for it.
Generally, a cost-plus-fixed fee contract will not justify a reward for
risk in excess of 0.5 percent, nor will a firm fixed-price contract
justify a reward of less than the minimum in the structured approach.
The reward for risk, by contract type, will usually fall into the
following percentage ranges:
(1) Type of contract and percentage ranges for profit objectives
based on structured approach for R & D and manufacturing contracts:
------------------------------------------------------------------------
Percent
------------------------------------------------------------------------
Cost-plus-fixed-fee....................... 0 to 0.5.
Cost-plus-incentive-fee: With cost 1 to 2.
incentive only.
With multiple incentives.................. 1.5 to 3.
Fixed-price-incentive: With cost incentive 2 to 4.
only.
With multiple incentives.................. 3 to 5.
Prospective price redetermination......... 3 to 5.
Firm-fixed-price.......................... 5 to 7.
------------------------------------------------------------------------
(2) Type of contract and percentage ranges for profit objectives
based on the structured approach for service contracts:
------------------------------------------------------------------------
Percent
------------------------------------------------------------------------
Cost-plus-fixed-fee....................... 0 to 0.5.
Cost-plus-incentive-fee................... 1 to 2.
Fixed-price incentive..................... 2 to 3.
Firm-fixed-price.......................... 3 to 4.
------------------------------------------------------------------------
(F) These ranges may not be appropriate for all acquisitions. For
instance, a fixed-price incentive contract with a low ceiling price and
high incentive share may be tantamount to a firm fixed-price contract.
In this situation, the Contracting Officer may determine that a basis
exists for high confidence in the reasonableness of the estimate and
that little opportunity exists for cost reduction without extraordinary
efforts. On the other hand, a contract with a high ceiling and low
incentive formula can be considered to contain cost-plus-incentive-fee
contract features. In this situation, the Contracting Officer may
determine that the Government is retaining much of the contract cost
responsibility and that the risk the contractor assumes is minimal.
Similarly, if a cost-plus-incentive-fee contract includes an unlimited
downward (negative) fee adjustment on cost control, it could be
comparable to a fixed-price-incentive contract. In such a pricing
environment, the Contracting Officer may determine that the Government
has transferred a greater amount of cost responsibility to the
contractor than is typical under a normal cost-plus-incentive-fee
contract.
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(G) The contractor's subcontracting program may have a significant
impact on the contractor's acceptance of risk. It could cause risk to
increase or decrease in terms of both cost and performance. This
consideration shall be a part of the Contracting Officer's overall
evaluation in selecting a factor to apply to cost risk. The Contracting
Officer may determine, for instance, that the prime contractor has
effectively transferred real cost risk to a subcontractor and the
contract cost risk evaluation may, as a result, be below the range which
would otherwise apply for the contract type being proposed. However,
without any substantial transfer of cost risk from the prime contractor
to a subcontractor, the Contracting Officer shall not lower the contract
cost risk evaluation merely because a substantial portion of the
contract costs represents subcontracts.
(H) In making a contract cost risk evaluation for an acquisition
that involves definitization of a letter contract, unpriced change
orders, and unpriced orders under basic ordering agreements, the
Contracting Officer shall consider the effect on total contract cost
risk of partial performance before definitization. Under some
circumstances, the total amount of cost risk may have been effectively
reduced. Under other circumstances it may be apparent that the
contractor's cost risk remains substantially unchanged. To be equitable,
the Contracting Officer shall make the determination of profit weight
for all recognized costs, both incurred and yet to be expended,
considering all attendant circumstances--not merely the portion of costs
incurred or percentage of work completed prior to definitization.
(I) The Contracting Officer shall consider time-and-materials and
labor-hour contracts to be cost-plus-fixed-fee contracts for the purpose
of establishing profit weights in the evaluation of the contractor's
assumption of contract cost risk, unless otherwise exempt from use of
the structured approach under paragraph (b)(1)(ii) of this section.
(ii) Investment. HHS encourages its contractors to perform their
contracts with the minimum of financial, facilities, or other assistance
from the Government. As such, it is the purpose of this factor to
encourage the contractor to acquire and use its own resources to the
maximum extent possible. The evaluation of this factor shall include an
analysis of the following:
(A) Facilities (including equipment). Evaluating how this factor
contributes to the profit objective requires knowledge of the level of
facilities utilization needed for contract performance, the source and
financing of the required facilities, and the overall cost-effectiveness
of the facilities offered. The Contracting Officer shall provide
contractors with additional profit, if they furnish their own facilities
and such contractor-furnished facilities contribute significantly to
lower total contract costs. On the other hand, contractors that rely on
the Government to provide or finance needed facilities shall receive a
corresponding reduction in profit. Between these extremes, the
Contracting Officer shall evaluate cases on their merits and make
positive or negative adjustments in profit, as appropriate. When
applicable, the contractor's computation of facilities capital cost of
money under CAS 414 can help the Contracting Officer identify the level
of facilities investment the contractor will employ in contract
performance.
(B) Payments. In analyzing this factor, the Contracting Officer
shall consider the frequency of payments by the Government to the
contractor. The key to this weighting is to give proper consideration to
the impact the contract will have on the contractor's cash flow.
Generally, negative consideration applies to advance payments and
payments more frequent than monthly, with the Contracting Officer making
a maximum reduction as the contractor's working capital approaches zero.
The Contracting Officer shall generally give positive consideration for
payments less frequent than monthly and for a capital turn-over rate on
the contract less than the contractor's or the industry's normal capital
turn-over rate.
(iii) Performance (cost control and other past accomplishments). The
Contracting Officer shall evaluate the contractor's past performance in
areas such as: quality of services or products,
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meeting performance schedules, efficiency in cost control (including
need for and reasonableness of costs incurred), accuracy and reliability
of previous cost estimates, degree of cooperation (both business and
technical), compliance with previous contract requirements, and
management of subcontract programs. Where a contractor has consistently
achieved excellent results in these areas in comparison with other
contractors in similar circumstances, this performance merits a
proportionately greater opportunity for profit. Conversely, a poor
record in this regard warrants less profit.
(iv) Federal socioeconomic programs. This factor, which may apply to
special circumstances or particular acquisitions, relates to the extent
of a contractor's successful participation in Government sponsored
programs involving: Small businesses; HUBZone small businesses; service-
disabled, veteran-owned small businesses; 8(a) small businesses; women-
owned small businesses; small disadvantaged businesses; sheltered
workshops for the disabled; mentor-prot[eacute]g[eacute]; energy
conservation, etc. The Contracting Officer shall give positive
consideration for the contractor's policies and practices that support
Federal socioeconomic programs and contribute to successful results.
Conversely, the Contracting Officer shall view failure or unwillingness
on the part of the contractor to support Federal socioeconomic programs
as evidence of poor performance for the purpose of establishing a profit
objective.
(v) Special situations--(A) Inventive and developmental
contributions. The Contracting Officer shall consider the extent and
nature of contractor-initiated and contractor-financed independent
development in formulating the profit objective, provided that the
Contracting Officer has made a determination that the effort will
benefit the contract. Examples of profit weighting factors include
contribution of the independent development to health and human service-
related missions; the initiative demonstrated by the contractor in
pursuing the independent development; the extent of the contractor's
cost risk; and whether the independent development cost was recovered
directly or indirectly from Government sources.
(B) Unusual pricing agreements. Occasionally, unusual contract
pricing arrangements are made with the contractor wherein it agrees to
cost ceilings (e.g., a ceiling on overhead rates for conditions other
than those discussed at FAR 42.707). In these circumstances, the
Contracting Officer shall give the contractor favorable consideration in
developing a profit objective.
(C) Negative factors. Special situations need not be limited to
those which only increase profit levels. A negative consideration may be
appropriate when the contractor is expected to obtain spin-off-benefits
as a direct result of the contract (e.g., products or services with
commercial application).
(4) Facilities capital cost of money. When facilities capital cost
of money (cost of capital committed to facilities) is included as an
item of cost in the contractor's proposal, the Contracting Officer shall
reduce the profit objective in an amount equal to the amount of
facilities capital cost of money allowed in accordance with the
Facilities Capital Cost-of-Money cost principle. If the contractor does
not propose this cost, the Contracting Officer shall insert a provision
in the contract that makes facilities capital cost of money an
unallowable cost.
Subpart 315.6_Unsolicited Proposals
Sec. 315.605 Content of unsolicited proposals.
(d) Certification by offeror. To ensure against contacts between HHS
personnel and prospective offerors that would exceed the limits of
advance guidance set forth in FAR 15.604 and potentially result in an
unfair advantage to an offeror, the Contracting Officer shall: Furnish
the following certification template to any prospective offeror of an
unsolicited proposal; and require that the executed certification be
included in any resultant unsolicited proposal:
[[Page 69]]
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 Department of Health and Human Services (HHS)
personnel has been within the limits of appropriate advance guidance set
forth in FAR 15.604; and
(d) No prior commitments were received from HHS personnel regarding
acceptance of this proposal.
Date:___________________________________________________________________
Organization____________________________________________________________
Name____________________________________________________________________
Title___________________________________________________________________
(This certification shall be signed by a responsible management
official of the proposing organization or by a person authorized to
contractually obligate the organization.)
Sec. 315.606 Agency procedures.
(a) The HCA is responsible for establishing procedures to comply
with FAR 15.606(a).
(b) The HCA or designee shall be the point of contact for
coordinating the receipt and processing of unsolicited proposals.
Sec. 315.606-1 Receipt and initial review.
(d) OPDIVs shall not refuse consideration of an unsolicited proposal
because an organization initially submitted it as a grant application.
However, OPDIVs shall not award contracts based on unsolicited proposals
that have been rejected for grant awards due to lack of scientific
merit.
Sec. 315.609 Limited use of data.
An offeror shall use the legend, Use and Disclosure of Data,
prescribed in FAR 15.609(a), to restrict the use of data for evaluation
purposes only. However, data contained within the unsolicited proposal
may need to be disclosed as a result of a request submitted pursuant to
the Freedom of Information Act. Because of this possibility, the
Contracting Officer shall provide the following notice to all
prospective offerors of unsolicited proposals:
``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.) or 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 determination to withhold or disclose a record
will be based upon the particular circumstances surrounding the record
and on whether the record is exempt from disclosure under the Freedom of
Information Act. Per FAR 15.609(e), the offeror should identify any
records that it considers to be trade secrets, commercial or financial
information, and privileged or confidential information.''
Subpart 315.70_Acquisition of Electronic Information Technology
Sec. 315.7000 Section 508 accessibility standards.
EIT products and services, including EIT deliverables such as
electronic documents and reports, acquired using negotiated procedures
shall comply with Section 508 of the Rehabilitation Act of 1973, as
amended. Consistent with paragraph 4.3.1 of the HHS Section 508 policy--
see Section 508 policy on HHS Office on Disability Web site, if products
and services, including commercially available items, meet some but not
all of the applicable Section 508 accessibility standards, and no
commercially available products or services meet all of the applicable
Section 508 accessibility standards, an OPDIV/STAFFDIV shall acquire the
products and services that best meet the applicable Section 508
accessibility standards. Commercial nonavailability exception
determinations for EIT products and services that do not meet some or
all of the applicable Section 508 accessibility standards shall be
processed in accordance with 339.203.
PART 316_TYPES OF CONTRACTS
Subpart 316.3_Cost-reimbursement Contracts
Sec.
Sec. 316.307 Contract clauses.
Subpart 316.5_Indefinite-Delivery Contracts
Sec. 316.505 Ordering.
[[Page 70]]
Subpart 316.6_Time-and-Materials, Labor-Hour, and Letter Contracts
Sec. 316.603 Letter contracts.
Sec. 316.603-3 Limitations.
Sec. 316.603-70 Procedure for requesting authority to issue a letter
contract.
Sec. 316.603-71 Approval for modifications to letter contracts.
Subpart 316.7_Agreements
Sec. 316.770 Unauthorized types of agreements.
Sec. 316.770-2 Memoranda of understanding.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 316.3_Cost-reimbursement Contracts
Sec. 316.307 Contract clauses.
(a) If a contract for R & D is with a hospital (profit or
nonprofit), the Contracting Officer shall modify the ``Allowable Cost
and Payment'' clause at FAR 52.216-7 by deleting from paragraph (a) the
words ``Subpart 31.2 of the Federal Acquisition Regulation (FAR)'' and
substituting ``45 CFR Part 74 Appendix E.''
(j) The Contracting Officer shall insert the clause in 352.216-70,
Additional Cost Principles, in solicitations and contracts when a cost-
reimbursement contract is contemplated.
Subpart 316.5_Indefinite-Delivery Contracts
Sec. 316.505 Ordering.
(b)(5) The HHS task-order and delivery-order ombudsman is the
Director, Strategic Acquisition Service, PSC. The task-order and
delivery-order ombudsmen for each of the HHS contracting activities are
as follows:
AHRQ: Director, Office of Performance Accountability, Resources and
Technology
ASPR/OAMCG: Chief of Acquisition Policy
CDC: Chief Information Officer
CMS: Chief Operating Officer
FDA: Director, Office of Acquisitions and Grants Services
HRSA: Associate Administrator, Office of Operations
IHS: Director, Office of Management Services
NIH: Senior Scientific Advisor for Extramural Research, Office of
Extramural Research (R & D) and Senior Advisor to the Director (Other
than R & D)
PSC: Director, Strategic Acquisition Service
SAMHSA: Executive Officer
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]
Subpart 316.6_Time-and-Materials, Labor-Hour, and Letter Contracts
Sec. 316.603 Letter contracts.
Sec. 316.603-3 Limitations.
An official one level above the Contracting Officer shall make the
written determination that no other contract type is suitable.
Sec. 316.603-70 Procedure for requesting authority to issue a letter
contract.
The Contracting Officer shall include the following information in a
memorandum requesting approval to award a letter contract:
(a) Name and address of proposed contractor.
(b) Location where contract is to be performed.
(c) Contract number, including modification number, if possible.
(d) Brief description of work and services to be performed.
(e) Proposed performance or delivery schedule.
(f) Amount of letter contract.
(g) Estimated total amount of definitized contract.
(h) Type of definitive contract to be executed (fixed price, cost-
reimbursement, etc.).
(i) Statement of the necessity and advantage to the Government of
the use of the proposed letter contract.
(j) Statement of percentage of the estimated cost that the
obligation of funds represents (in rare instances where the obligation
represents 50 percent or more of the proposed estimated cost of the
acquisition, the Contracting Officer shall include a justification for
that obligation (e.g., the contractor requires a large initial outlay of
funds for major subcontract awards or an extensive purchase of materials
to meet an urgent delivery requirement)). In every case, documentation
shall demonstrate that the amount to be obligated is not in excess of an
amount
[[Page 71]]
reasonably required to perform the work.
(k) Period of effectiveness of a proposed letter contract. (If more
than 180 days, the Contracting Officer shall provide a detailed
justification).
(l) A statement of any substantive matters that need to be resolved.
Sec. 316.603-71 Approval for modifications to letter contracts.
An official one level above the Contracting Officer shall approve
all letter contract modifications. Contracting activities shall process
requests for authority to issue letter contract modifications in the
same manner as requests for authority to issue letter contracts. A
request shall include the following:
(a) Name and address of the contractor.
(b) Description of work and services.
(c) Date original request was approved and name/title of approving
official.
(d) Letter contract number and date issued.
(e) Detailed justification as to why the letter contract cannot
currently be definitized.
(f) Detailed justification as to why the level of funding must be
increased.
(g) Detailed justification as to why the period of effectiveness
must be increased beyond 180 days, if applicable.
(h) If the funding of the letter contract is to be increased to more
than 50 percent of the estimated cost of the acquisition, the
Contracting Officer shall include the information required by 316.603-
70(j).
Subpart 316.7_Agreements
Sec. 316.770 Unauthorized types of agreements.
Sec. 316.770-2 Memoranda of understanding.
Use of a ``memorandum of understanding,'' which purports to modify
mandatory FAR and HHSAR provisions to make them acceptable to a
prospective contractor, is not authorized because it may address matters
contrary to the language of the solicitation or prospective contract. A
memorandum of understanding does not bind the Government under the
contract. The Contracting Officer shall make a change in a solicitation
or contract only by amendment or modification, respectively. When a
change to a prescribed contract clause is considered necessary, the
Contracting Officer shall request a deviation.
PART 317_SPECIAL CONTRACTING METHODS
Subpart 317.1_Multi-year Contracting
Sec.
Sec. 317.104 General.
Sec. 317.105 Policy.
Sec. 317.105-1 Uses.
Sec. 317.107 Options.
Sec. 317.108 Congressional notification.
Subpart 317.2_Options
Sec. 317.204 Contracts.
Sec. 317.207 Exercise of options.
Subpart 317.5_Interagency Acquisitions Under the Economy Act
Sec. 317.503 Determination and findings requirements.
Subpart 317.70_Multi-agency and Intra-agency Contracts
Sec. 317.7000 Scope of subpart.
Sec. 317.7001 Definitions.
Sec. 317.7002 Potential multi-agency and intra-agency sources.
Sec. 317.7003 Documentation for multi-agency contracts.
Sec. 317.7004 Documentation for intra-agency contracts.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 317.1_Multi-year Contracting
Sec. 317.104 General.
(b) The Senior Procurement Executive is the agency head for the
purpose of FAR 17.104(b).
Sec. 317.105 Policy.
Sec. 317.105-1 Uses.
(a) Each HCA determination to use multi-year contracting, as defined
in FAR 17.103, is limited to individual acquisitions where the full
estimated
[[Page 72]]
cancellation ceiling does not exceed 20 percent of the total contract
value over the multi-year term or $11.5 million, whichever is less.
Cancellation ceiling provisions shall conform to the requirements of FAR
17.106-1(c). The determination is not delegable and shall address the
issues in FAR 17.105-1(a) and the following:
(1) The amount of, and basis for, the estimated cancellation
ceiling.
(2) Identification and assignment of a Contracting Officer holding a
FAC-C Level III certification or, alternatively, one familiar with the
application of this contracting method.
(3) Availability of appropriations to fund the obligation of total
contract costs for the first year of performance plus the estimated
amount of the full cancellation ceiling.
(4) Reasonable expectation that, throughout the contemplated
contract performance period, the OPDIV, through its annual budget
request, will seek funding for the contract at the level necessary to
avoid contract cancellation; and
(5) Program requirements are reasonably stable and the associated
technical risks are not excessive--i.e., not of the nature or level to
jeopardize contract completion or result in its cancellation.
Upon SPE request, the HCA shall provide a copy of each determination
(other than those specified in 317.105-1(b) below).
(b)(1) SPE approval is required for any--
(i) Individual determination to use multi-year contracting with a
cancellation ceiling in excess of the limits in 317.105-1(a); or
(ii) Class determination (see FAR Subpart 1.7).
(2) A determination involving a cancellation ceiling in excess of
the limits in 317.105-1(a) shall present a compelling justification for
the estimated cancellation ceiling. When the estimated cancellation
ceiling exceeds $11.5 million, the determination shall be accompanied by
a draft congressional notification letter pursuant to FAR 17.108 and
317.108.
(c) The funding required for performance of each year of a multi-
year contract under FAR Subpart 17.1 and this subpart must be provided
in full at the start of that program year.
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]
Sec. 317.107 Options.
When used as part of a multi-year contract, options shall not be
used to extend the performance of the original requirement for non-
severable services beyond 5 years. Options may serve as a means to
acquire related services (severable or non-severable) and, upon being
exercised, shall be funded from the then-current fiscal year's
appropriation.
[75 FR 21511, Apr. 26, 2010]
Sec. 317.108 Congressional notification.
(a) The SPE is the agency head for the purposes of FAR 17.108(a).
Upon SPE approval of the determination required by 317.105-1(b)(1), the
SPE will finalize and sign the congressional notification letter and
provide it to the appropriate House and Senate committees.
Subpart 317.2_Options
Sec. 317.204 Contracts.
(e) The total of the basic and option periods shall not exceed 10
years in the case of services and the total of the basic and option
quantities shall not exceed the requirement for 5 years in the case of
supplies. These limitations do not apply to IT and R & D contracts.
However, statutes applicable to various classes of contracts may place
additional restrictions on the length of contracts.
Sec. 317.207 Exercise of options.
(h) Before exercising an option for a subsequent performance period/
additional quantity under a multiple-year contract/order--see 339.201-
70(c), which involves the acquisition of EIT products and services,
including EIT deliverables such as electronic documents and reports,
subject to Section 508 of the Rehabilitation Act of 1973, as amended,
the Contracting Officer shall ensure that the contractor has provided to
the Contracting Officer and Project Officer a properly completed HHS
Section 508 Annual Report--see
[[Page 73]]
Section 508 policy on HHS Office on Disability Web site. The Contracting
Officer shall request that the contractor provide the report in
sufficient time for its review and approval by the Contracting Officer,
Project Officer, and the Section 508 Official or designee, prior to
exercise of an option. The Contracting Officer shall ensure that the
report and all related approvals are made a part of the official
contract/order file.
Subpart 317.5_Interagency Acquisitions Under the Economy Act
Sec. 317.503 Determination and findings requirements.
(a) In addition to the D & F contents specified in FAR 17.503(a)(1)
and (2), each Assisted Contracting D & F shall address--
(3) The servicing organization(s) contemplated (the assigned HHS
contracting office shall be one of the servicing organizations
contemplated);
(4) For each organization and alternative approach contemplated, the
anticipated benefits to the OPDIV; the anticipated costs, including
associated fees or other compensation; and the contract/order placement
timeframe;
(5) The tradeoffs (cost, schedule, performance) among the approaches
considered;
(6) The recommended multi-agency or intra-agency contracting
approach;
(7) The conclusion that the contract to be awarded by the selected
servicing organization is the most advantageous alternative to the
Government, notwithstanding fees and the increased risk associated with
assisted contracting; and
(8) The steps that will be taken to ensure that contract funding
will comply with the bona fide needs rule and the Anti-Deficiency Act.
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]
Subpart 317.70_Multi-agency and Intra-agency Contracts
Sec. 317.7000 Scope of subpart.
(a) This subpart prescribes policies for HHS' use of multi-agency
and intra-agency contracting under all authorities. It does not apply
when HHS transfers funds to another agency under an interagency
agreement whose primary purpose is other than contracting on HHS'
behalf.
(b) For multi-agency contracts under the authority of the Economy
Act, see FAR Subpart 17.5 and 317.503.
(c) Multi-agency contracting authorities other than the Economy Act
include but are not limited to the Clinger-Cohen Act [40 U.S.C.
11302(e)]; the Government Management Reform Act (Pub. L. 103-356); Title
III of the Federal Property and Administrative Services Act of 1949 (41
U.S.C. 251, et seq.); and 40 U.S.C. 501, Services for Executive
Agencies.
Sec. 317.7001 Definitions.
As used in this subpart:
Multi-agency contracting describes a procedure in which a Federal
agency needing supplies or services obtains them using another Federal
agency's contract (direct ordering), the contracting assistance of
another Federal agency (assisted contracting), or both. In some cases,
more than one servicing organization may be involved in assisted
contracting.
Intra-agency contracting describes a procedure in which an HHS
OPDIV/STAFFDIV needing supplies or services obtains them by issuing an
order under another HHS OPDIV/STAFFDIV's contract or agreement (e.g., a
BPA--direct ordering); or using the contracting assistance of another
OPDIV/STAFFDIV (assisted contracting); or both.
Assisted contracting is a subset of multi-agency/intra-agency
contracting in which a servicing contracting office other than the
requesting organization's assigned contracting office contracts on
behalf of the requesting organization.
Direct ordering is a subset of multi-/intra-agency contracting in
which a contracting or ordering officer issues an order under another
OPDIV's or Federal agency's indefinite delivery vehicle (e.g., a GSA FSS
schedule or a GWAC).
Requesting organization refers to the organization with the
requirement for a multi- or intra-agency contract.
[[Page 74]]
Servicing organization refers to an organization that assists a
requesting organization by awarding a contract or order on its behalf.
In the context of multi-agency contracting, the servicing organization
and requesting organization must be in different Federal agencies. For
intra-agency contracting, the servicing and requesting organizations
must both be HHS organizations.
Sec. 317.7002 Potential multi-agency and intra-agency sources.
(a) Prior to deciding to use multi-agency or intra-agency
contracting, the requesting organization must perform sufficient market
research to consider the relative merits and costs of available
contracts and contracting offices for meeting the requesting
organization's need.
(b) Direct ordering conducted by HHS contracting officers using GSA
vehicles, GWACs, and vehicles established under the Federal Strategic
Sourcing Initiative does not require justification. HHS contracting
officers should be cautious about using unfamiliar contract vehicles.
When using vehicles other than those listed above, the Contracting
Officer shall include in the contract file a D & F, which is prepared in
consultation with the SBS, and which concludes that the chosen vehicle
is the best way to obtain the required product or service.
(c) With the exception of assisted contracts and direct order
acquisitions to be placed pursuant to the authority of the Economy Act,
which always require preparation of a supporting D & F--see FAR 17.503,
proposed assisted contracts approved as part of an annual or updated
acquisition plan require no additional documentation or approvals.
(d) For proposed assisted contracts not approved as part of an
annual or update acquisition plan, the requiring organization shall
identify the potential servicing organization(s); summarize the services
each source provides; and describe the compensation arrangement(s). The
assigned contracting office shall be one of the alternatives considered.
For multi-agency contract actions, this information shall be included in
the Assisted Contracting D & F required in 317.7003(b).
Sec. 317.7003 Documentation for multi-agency contracts.
(a) In the case of proposed direct ordering using vehicles other
than those listed in 317.7002(b), the HHS contracting officer shall
comply with the D & F requirement in 317.7003(b).
(b) If a proposed assisted contract, using a servicing organization
outside HHS, was not approved during preparation and review of the
annual acquisition plan, including updates, then the program/project
office or other requiring activity shall prepare an Assisted Contracting
D & F, similar to the D & F specified in FAR 17.503, but augmented with
the information specified in 317.503. The Project Officer or other
requiring official shall be responsible for preparing and staffing this
Assisted Contracting D & F.
(1) For assisted contracts greater than or equal to $500,000
(including the value of the base contract and all options and, for
indefinite delivery vehicles, the value of the vehicle and all potential
orders), the assigned HHS Contracting Officer shall review and approve
or reject the Assisted Contracting D & F, annotated with the SBS'
recommendation. The Contracting Officer's signature on the Assisted
Contracting D&F signifies his/her concurrence that assisted contracting
through the proposed servicing contracting office is in the best
interest of the government. The Project Officer must retain a copy of
the approved Assisted Contracting D & F.
(2) For assisted contracts less than $500,000, the HCA may delegate
authority to the Project Officer or other requiring official to approve
the required Assisted Contracting D & F. The $500,000 threshold includes
the value of the base contract and all options and, for indefinite
delivery vehicles, the value of the vehicle and all potential orders.
(3) During a declared (Presidential or HHS Secretarial) emergency,
funding and requirements documentation may be transferred to a servicing
organization without an Assisted Contracting D & F. The Project Officer
shall document his/her file, explaining the exigent circumstances.
[[Page 75]]
(c) Assisted contracts require supporting interagency agreements, as
described in OFPP's memorandum, ``Interagency Acquisitions,'' dated June
2008. Note that Part A of an interagency agreement can support multiple
assisted contracts. Each interagency agreement shall address all the
elements identified in OFPP's model interagency agreement (Appendix 2 of
OFPP's ``Interagency Acquisitions''). The level of detail in HHS
interagency agreements should be commensurate with the dollar value and
complexity of the assisted contract. HHS requesting organizations shall
not forward funding or requirements documentation outside HHS without a
properly executed interagency agreement; and servicing activities within
HHS (e.g., PSC and the NIH Information Technology Acquisition and
Assessment Center), shall not contract on behalf of non-HHS requesting
organizations without properly executed interagency agreements.
Sec. 317.7004 Documentation for intra-agency contracts.
(a) In the case of proposed direct ordering, using vehicles other
than those listed in 317.7002(b), the HHS contracting officer shall
comply with the D & F requirement in 317.7003(b).
(b) With the exception of assisted contracts and direct order
acquisitions to be placed pursuant to the authority of the Economy Act,
which always require preparation of a supporting D & F--see FAR 17.503,
proposed assisted contracts approved as part of an annual or updated
acquisition plan require no additional documentation or approvals.
(c) For proposed assisted contracts not approved as part of an
annual or updated acquisition plan, the requiring organization shall
identify the potential servicing organization(s); summarize the services
the source(s) provide(s); and describe the compensation arrangement(s).
The assigned contracting office shall be one of the alternatives
considered.
(d) Assisted intra-agency contracts may require supporting intra-
agency agreements or other documentation as prescribed by OPDIV
procedures.
[[Page 76]]
SUBCHAPTER D_SOCIOECONOMIC PROGRAMS
PART 319_SMALL BUSINESS PROGRAMS
Subpart 319.2_Policies
Sec.
Sec. 319.201 General policy.
Sec. 319.202-2 Locating small business sources.
Sec. 319.270-1 Solicitation provision and contract clause.
Subpart 319.5_Set-Asides for Small Business
Sec. 319.501 General.
Sec. 319.506 Withdrawing or modifying set-asides.
Subpart 319.7_Subcontracting With Small Business, Small Disadvantaged
Business, and Women-Owned Small Business Concerns
Sec. 319.705 Responsibilities of the Contracting Officer under the
subcontracting assistance program.
Sec. 319.705-5 Awards involving subcontracting plans.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 319.2_Policies
Sec. 319.201 General policy.
(d) The functional management responsibilities for HHS' small
business program (i.e., small businesses; veteran-owned small
businesses; service-disabled, veteran-owned small businesses; HUBZone
small businesses; small disadvantaged businesses; and women-owned small
businesses) are delegated to the OSDBU Director. See the HHS Small
Business Program manual for information on the HHS small business
program, including SBS and Small Business Administration (SBA)
Procurement Center Representative (PCR) acquisition review timeframes.
(e)(1) One or more qualified SBSs will implement the HHS small
business program and shall be co-located within the following OPDIVs:
AHRQ; ASPR/OAMCG; CDC; CMS; FDA; HRSA; IHS; NIH; PSC; and SAMHSA. The
OSDBU Director shall exercise full management authority over SBSs.
(2) Within IHS, the primary SBS will be responsible for IHS' overall
implementation of the HHS small business program; however, each IHS
contracting office will have a small business technical advisor (SBTA)
to carry out those functions and responsibilities to implement the small
business program. The primary IHS SBS shall assist and provide guidance
to respective SBTAs.
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]
Sec. 319.202-2 Locating small business sources.
(a) OPDIVs shall foster, to the extent practicable, maximum
participation by small businesses in HHS acquisitions. Prior to issuing
a solicitation, the Contracting Officer shall make every reasonable
effort to find small business concerns that can compete for the proposed
requirement--see FAR 19.202, 10.001(2)(v), and 10.002(b)(1)(vii).
(1) If it cannot be determined in advance (through market research
under FAR Part 10, discussions between the Contracting Officer and the
SBS, or other means--see FAR 15.201, whether a solicitation in excess of
the simplified acquisition threshold can be set aside exclusively for
small business participation [whether for small businesses; HUBZone
small businesses; service-disabled, veteran-owned small businesses; or
8(a) small business(es)], the Contracting Officer may publish a notice
entitled ``Small Business Sources Sought'' in FedBizOpps. The purpose of
a Small Business Sources Sought notice is to identify the availability
and capability of qualified small business sources; and their size
classification relative to the appropriate North American Industry
Classification System (NAICs) code. This will assist the Government in
determining the appropriate acquisition method, including whether a set-
aside is possible. However, to solicit technical, scientific, or
business information for project planning purposes, an RFI may be used--
see 315.201(e).
[[Page 77]]
(2) When using a Small Business Sought notice, an OPDIV shall not
request that potential sources provide more than the minimum information
necessary--see FAR 10.001(b), to determine whether they have the
apparent capability to perform a requirement and, therefore, whether
they should be included in any future competition. The notice and the
information received shall not be used to determine how well respondents
can perform a requirement, which can only be evaluated in response to a
solicitation. Accordingly, the notice shall not be used to--
(i) Obtain capability statements that are evaluated and determined
acceptable or unacceptable;
(ii) Require cost/price proposals or detailed technical solutions;
(iii) Identify a prospective sole source; or
(iv) Exclude small business concerns.
(3) OPDIVs shall follow the standard HHS instructions for completing
a ``Small Business Sources Sought'' notice.'' The template for the
notice is available on the ASFR/OGAPA/DA Internet Web site. The
Contracting Officer shall post the notice in FedBizOpps by selecting and
completing a Sources Sought notice, accessible on the FedBizOpps
``Notices'' page at: http://www.fedbizopps.gov. Additional information
may be included in the notice in accordance with OPDIV procedures. The
Contracting Officer shall document, in the form of a memorandum to the
file, the results of the review by technical personnel of information
submitted in response to the notice, including whether each respondent
appears to be capable of performing the requirement. The Contracting
Officer shall attach a copy of the analysis provided by the technical
personnel to the memorandum.
Sec. 319.270-1 Solicitation provision and contract clause.
(a) The Contacting Officer shall insert the provision in 352.219-70,
Mentor-Prot[eacute]g[eacute] Program, in solicitations that include the
clause in FAR 52.219-9, Small Business Subcontracting Plan. The
provision requires that offerors provide the Contracting Officer a copy
of their HHS Office of Small and Disadvantaged Business Utilization
(OSDBU)-approved mentor-prot[eacute]g[eacute] agreement in response to a
solicitation. (b) The Contacting Officer shall insert the clause in
352.219-71, Mentor-Prot[eacute]g[eacute] Program Reporting Requirements,
in contracts that include the clause in FAR 52.219-9, Small Business
Subcontracting Plan, and which are awarded to a contractor with an HHS
OSDBU-approved mentor-prot[eacute]g[eacute] agreement.
Subpart 319.5_Set-Asides for Small Business
Sec. 319.501 General.
(e) Subsequent to the Contracting Officer's recommendation on Form
HHS 653, HHS Small Business Review Form, the SBS shall review each
proposed acquisition strategy and either concur or not concur with the
Contracting Officer's recommendation. The PCR shall also review the
acquisition strategy and either concur or not concur with the
Contracting Officer's recommendation. If the Contracting Officer
disapproves the SBS's or the PCR's set-aside recommendation, the
Contracting Officer shall document the reasons on Form HHS 653 and place
the form in the contract file. The Contracting Officer shall make the
final determination as to whether the proposed acquisition will be set-
aside or not.
Sec. 319.506 Withdrawing or modifying set-asides.
(d) Immediately upon notice from the Contracting Officer, the SBS
shall provide notification of all set-aside withdrawals to the OSDBU
Director by both telephone and e-mail.
[[Page 78]]
Subpart 319.7_Subcontracting With Small Business, Small Disadvantaged
Business, and Women-Owned Small Business Concerns
Sec. 319.705 Responsibilities of the Contracting Officer under the
subcontracting assistance program.
Sec. 319.705-5 Awards involving subcontracting plans.
(a)(3) The Contracting Officer shall provide the PCR a period of 1
to 5 working days to review the contract award package, depending upon
the circumstances and complexity of the individual acquisition.
PART 322_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 322.8_Equal Employment Opportunity
Sec.
Sec. 322.810 Solicitation provisions and contract clauses.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 322.8_Equal Employment Opportunity
Sec. 322.810 Solicitation provisions and contract clauses.
(h) The Contracting Officer shall insert the clause in 352.222-70,
Contractor Cooperation in Equal Employment Opportunity Investigations,
in solicitations, contracts, and orders that include the clause in FAR
52.222-26, Equal Opportunity.
PART 323_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
Subpart 323.70_Safety and Health
Sec.
Sec. 323.7000 Scope of subpart.
Sec. 323.7001 Policy.
Sec. 323.7002 Actions required.
Subpart 323.71_Green Purchasing Requirements
Sec. 323.7100 Policy.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 323.70_Safety and Health
Sec. 323.7000 Scope of subpart.
This subpart prescribes the use of a safety and health clause in
contracts involving hazardous materials or operations, and provides
procedures for administering safety and health provisions.
Sec. 323.7001 Policy.
Various statutes and regulations (e.g., the Walsh-Healy Act and
Service Contract Act), require adherence to minimum safety and health
standards by contractors engaged in potentially hazardous work. FAR
subpart 23.3 serves as the primary reference regarding hazardous
materials. The Contracting Officer shall follow the guidance in this
subpart when the guidance in the FAR is not sufficient or does not meet
the safety and health situation for an acquisition.
Sec. 323.7002 Actions required.
(a) Contracting activities. The Contracting Officer shall insert the
clause in 352.223-70, Safety and Health, or a clause substantially the
same, in solicitations and contracts that involve hazardous materials or
operations for the following types of requirements:
(1) Services or products.
(2) Research, development, or test projects.
(3) Transportation of hazardous materials.
(4) Construction, including construction of facilities on the
contractor's premises.
(b) Safety officers. OPDIV safety officers shall advise and assist
initiators of acquisition requests and Contracting Officers in--
(1) Determining whether safety and health provisions shall be part
of a prospective contract;
[[Page 79]]
(2) Evaluating a prospective contractor's safety and health
programs; and
(3) Conducting post-award reviews and surveillance to the extent
deemed necessary.
(c) Initiators. Initiators of acquisition requests for items
described in paragraph (a) of this section shall--
(1) During the preparation of an acquisition plan or other
acquisition request documentation, and in the solicitation, ensure that
hazardous materials and operations to be used in the performance of the
contract are clearly identified; and
(2) During the period of performance--
(i) Apprise the Contracting Officer of any noncompliance with safety
and health provisions identified in the contract; and
(ii) Cooperate with the safety officer in conducting review and
surveillance activities.
Subpart 323.71_Green Purchasing Requirements
Sec. 323.7100 Policy.
(a) The HHS guidelines and procedures for ``green purchasing'' may
be found in the HHS Affirmative Procurement Plan (APP), ``Purchasing
Environmentally Preferable Products and Services at the U.S. Department
of Health and Human Services.'' The APP encompasses the acquisition and
use of designated recycled content, and Energy Star[reg],
Electronic Product Environmental Assessment Tool (EPEAT)-registered,
energy-efficient, bio-based, and environmentally preferable products.
(1) ASFR/OGAPA/DA has overall responsibility for monitoring the
OPDIVs' implementation of HHS' APP to ensure compliance with Executive
Order 13423, ``Strengthening Federal Environmental, Energy, and
Transportation Management;'' the White House Council on Environmental
Quality's Implementing Instructions for Executive Order 13423; Section
6002 of the Resource Conservation and Recovery Act of 1976; Section 104
of the Energy Policy Act of 2005; Section 9002 of the Farm Security and
Rural Investment Act of 2002; Section 612 of the Clean Air Act of 1990;
and FAR Part 23.
(2) The OPDIVs, through their designated APP Program Managers, are
responsible for establishing the necessary local procedures and
appropriate training requirements to ensure effective implementation of
the HHS APP.
PART 324_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
Subpart 324.1_Protection of Individual Privacy
Sec.
Sec. 324.000 Scope of subpart.
Sec. 324.102 General.
Sec. 324.103 Procedures.
Subpart 324.2_Freedom of Information Act
Sec. 324.203 Policy.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 324.1_Protection of Individual Privacy
Sec. 324.000 Scope of subpart.
This part prescribes policies and procedures that apply requirements
of the Privacy Act of 1974 (5 U.S.C. 552a) and OMB Circular A-130,
Revised, November 30, 2000, to HHS contracts and cites the Freedom of
Information Act (5 U.S.C. 552, as amended).
Sec. 324.102 General.
(a) It is HHS policy to protect the privacy of individuals to the
maximum possible extent, while permitting the exchange of records
required to fulfill HHS administrative and program responsibilities and
its responsibilities for disclosing records to which the general public
is entitled under the Freedom of Information Act (5 U.S.C. 552). The
Privacy Act of 1974 and the HHS implementation under 45 CFR Part 5b
apply ``when an agency provides by a contract for the operation by or on
behalf of the agency of a system of records to accomplish any agency
function * * *.'' The key factor is whether an HHS function is involved.
Therefore, the Privacy Act requirements apply to an HHS contract when,
under the contract, the contractor must maintain or
[[Page 80]]
operate a system of records to accomplish an HHS function.
(e) The Project Officer, and, as necessary, the official designated
as the OPDIV's Privacy Act Coordinator and OGC-GLD, shall determine the
applicability of the Privacy Act to each proposed acquisition. The
Project Officer is required to include a statement in the AP or other
acquisition request document indicating whether the Privacy Act is or is
not applicable to a proposed acquisition.
(f) Whenever a Contracting Officer is informed that the Privacy Act
is not applicable, but the resultant contract will involve the
collection of individually identifiable personal data by the contractor,
the Contracting Officer shall include provisions to protect the
confidentiality of the records and the privacy of individuals identified
in the records.
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]
Sec. 324.103 Procedures.
(a) The Contracting Officer shall review all acquisition request
documentation to determine whether the Privacy Act requirements are
applicable. The Privacy Act requirements apply when a contract or order
will require the contractor to design, develop, or operate any Privacy
Act system of records on individuals to accomplish an agency function.
When applicable, the Contracting Officer shall include the two Privacy
Act clauses required by FAR 24.104 in the solicitation and contract or
order. In addition, the Contracting Officer shall include the two FAR
Privacy Act clauses, and other pertinent information specified in this
subpart, in any modification which results in the Privacy Act
requirements becoming applicable to a contract or order.
(b)(1) The Contracting Officer shall identify in the SOW/PWS the
system(s) of records to which the Privacy Act and the implementing
regulations are applicable.
(2) The Contracting Officer shall include the clause specified in
352.224-70, Privacy Act, in solicitations, contracts, and orders that
involve Privacy Act requirements to notify the contractor that it and
its employees are subject to criminal penalties for violations of the
Privacy Act (5 U.S.C. 552a(i)) to the same extent as HHS employees. The
clause also requires the contractor to ensure that each of its employees
knows the prescribed rules of conduct and each contractor employee is
aware that he/she is subject to criminal penalties for violations of the
Privacy Act. These requirements also apply to all subcontracts awarded
under the contract or order that require the design, development, or
operation of a system of records. The Contracting Officer shall send the
contractor a copy of 45 CFR Part 5b, which includes the rules of conduct
and other Privacy Act requirements.
(c) The Contracting Officer shall specify in the contract SOW/PWS
the disposition to be made of the system(s) of records upon completion
of contract performance. The contract SOW/PWS may require the contractor
to destroy the records, remove personal identifiers, or turn the records
over to the Contracting Officer. If there is a legitimate need for a
contractor to keep copies of the records after completion of a contract,
the contractor must take measures, as approved by the Contracting
Officer, to keep the records confidential and protect the individuals'
privacy.
(d) For any acquisition subject to Privacy Act requirements, the
Project Officer, prior to award, or the COTR, after award, shall prepare
and have published in the Federal Register a ``system notice,''
describing HHS' intent to establish a new system of records on
individuals, to make modifications to an existing system, or to disclose
information in regard to an existing system. The Project Officer shall
attach a copy of the system notice to the acquisition plan or other
acquisition request documentation. If a system notice is not attached,
the Contracting Officer shall inquire about its status and shall obtain
a copy from the Project Officer for inclusion in the contract file. If a
system notice has not been published in the Federal Register, the
Contracting Officer may proceed with the acquisition but shall not award
the contract until the system notice is published and the Contracting
Officer verifies its publication.
[[Page 81]]
Subpart 324.2_Freedom of Information Act
Sec. 324.203 Policy.
(a) The HHS regulation implementing the Freedom of Information Act
(FOIA), 5 U.S.C. 552, as amended, is set forth in 45 CFR Part 5.
(b) The Contracting Officer, upon receiving a FOIA request, shall
follow HHS and OPDIV procedures. As necessary, the Contracting Officer
shall coordinate all actions with the cognizant Freedom of Information
(FOI) Officer and the OGC-GLD. Only the FOI Officer is authorized to
release or deny release of records. The Contracting Officer shall be
familiar with the entire FOIA regulation in 45 CFR Part 5.
[[Page 82]]
SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS
PART 327_PATENTS, DATA, AND COPYRIGHTS
Subpart 327.4_Rights in Data and Copyrights
Sec.
Sec. 327.404-70 Solicitation provision and contract clause.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 327.4_Rights in Data and Copyrights
Sec. 327.404-70 Solicitation provision and contract clause.
The Contracting Officer shall insert the clause in 352.227-70,
Publications and Publicity, in solicitations, contracts, and orders that
involve requirements which could lead to the contractor's publishing the
results of the award.
PART 328_BONDS AND INSURANCE
Subpart 328.3_Insurance
Sec.
Sec. 328.301 Policy.
Sec. 328.311 Solicitation provision and contract clause on liability
insurance under cost-reimbursement contracts.
Sec. 328.311-2 Agency solicitation provisions and contract clauses.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 328.3_Insurance
Sec. 328.301 Policy.
It is HHS policy to limit the Government's reimbursement, of its
contractors' liability to third persons for claims not covered by
insurance in cost-reimbursement contracts, to the Limitation of Funds or
Limitation of Cost clause of the contract. In addition, the amount of
the Government's reimbursement cannot exceed the final judgments or
settlements approved in writing by the Government.
Sec. 328.311 Solicitation provision and contract clause on liability
insurance under cost-reimbursement contracts.
Sec. 328.311-2 Agency solicitation provisions and contract clauses.
The Contracting Officer shall insert the clause in 352.228-7,
Insurance--Liability to Third Persons, in lieu of the clause in FAR
52.228-7, Insurance--Liability to Third Persons, in solicitations and
contracts when a cost-reimbursement contract is contemplated. The
Contracting Officer shall insert Alternate I or II based on the
conditions specified therein. This is an authorized FAR deviation.
PART 330_COST ACCOUNTING STANDARDS
Subpart 330.2_CAS Program Requirements
Sec.
Sec. 330.201 Contract requirements.
Sec. 330.201-5 Waiver.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 330.2_CAS Program Requirements
Sec. 330.201 Contract requirements.
Sec. 330.201-5 Waiver.
(a) OPDIVs shall forward waiver requests through appropriate
acquisition channels, including the HCA, to the Associate DAS for
Acquisition (non-delegable) for review. Associate DAS for Acquisition
shall exercise the waiver authority under FAR 30.201-5(a)(2).
PART 331_CONTRACT COST PRINCIPLES AND PROCEDURES
Subpart 331.1_Applicability
Sec.
Sec. 331.101-70 Salary rate limitation.
Sec. 331.102-70 Pricing of adjustments.
[[Page 83]]
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 331.1_Applicability
Sec. 331.101-70 Salary rate limitation.
(a) Beginning in fiscal year 1990, Congress has stipulated in HHS
appropriations acts and continuing resolutions that, under applicable
NIH, SAMHSA, and AHRQ contracts, appropriated funds cannot be used to
pay the direct salary of an individual at a rate in excess of the
Federal Executive Schedule Level I.
(b) The Contracting Officer shall insert the clause in 352.231-70,
Salary Rate Limitation, in NIH, SAMHSA, and AHRQ solicitations and
contracts that exceed the simplified acquisition threshold when a cost-
reimbursement, fixed-price level-of-effort, time-and-materials, or
labor-hour contract is contemplated, including modifications of
contracts of those types for projects that support extramural program
activities. For purposes of this clause, for NIH: Projects that support
extramural program activities are basic and applied research projects;
and for SAMHSA and AHRQ: Projects that support extramural program
activities are mission-related projects, exclusive of contracts for
general support services.
Sec. 331.102-70 Pricing of adjustments.
The Contracting Officer shall insert the clause in 352.231-71,
Pricing of Adjustments, in solicitations and contracts when a fixed-
price contract is contemplated.
PART 332_CONTRACT FINANCING
Subpart 332.4_Advance Payments for Non-Commercial Items
Sec.
Sec. 332.402 General.
Sec. 332.403 Applicability.
Sec. 332.407 Interest.
Sec. 332.409 Contracting Officer action.
Sec. 332.409-1 Recommendation for approval.
Subpart 332.5_Progress Payments Based on Cost
Sec. 332.501 General.
Sec. 332.501-2 Unusual progress payments.
Subpart 332.7_Contract Funding
Sec. 332.703-70 Funding contracts during a continuing resolution.
Sec. 332.704 Limitation of cost or funds.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 332.4_Advance Payments for Non-Commercial Items
Sec. 332.402 General.
(e) The HCA (non-delegable) shall determine whether an advance
payment is in the public interest in accordance with FAR
32.402(c)(1)(iii)(A).
Sec. 332.403 Applicability.
All R&D contracts with educational institutions located in the
United States shall provide for financing by use of advance payments, in
reasonable amounts, unless otherwise prohibited by law.
Sec. 332.407 Interest.
(d) The HCA (non-delegable) shall make the determinations in FAR
32.407(d). The HCA may also approve interest-free advance payments for
educational institutions and other nonprofit organizations, whether
public or private, performing work under nonprofit contracts (without
fee) involving health services, educational programs, or social service
programs, such as the following:
(1) Community health representative services for an Indian Tribe.
(2) Narcotic addict rehabilitative services.
(3) Comprehensive health care services for Model Neighborhood
programs.
(4) Planning and development of health maintenance organizations.
(5) Dissemination of information derived from educational research.
(6) Surveys or demonstrations in the field of education.
(7) Producing or distributing educational media for disabled persons
including captioned films for the hearing impaired.
(8) Operation of language or area centers.
(9) Biomedical research and support services.
[[Page 84]]
(10) Research surveys or demonstrations involving the training and
placement of health personnel and health professionals, and
dissemination of related information.
(11) Surveys or demonstrations in the field of social service.
Sec. 332.409 Contracting Officer action.
Sec. 332.409-1 Recommendation for approval.
The Contracting Officer shall transmit the information in FAR
32.409-1 (or FAR 32.409-2) to the HCA by memorandum.
Subpart 332.5_Progress Payments Based on Cost
Sec. 332.501 General.
Sec. 332.501-2 Unusual progress payments.
(a)(3) The HCA (non-delegable) shall approve an unusual progress
payment.
Subpart 332.7_Contract Funding
Sec. 332.703-70 Funding contracts during a continuing resolution.
(a) Continuing resolutions. A continuing resolution (CR) is a
legislative measure enacted to keep existing Federal programs
functioning, generally at minimal levels, after the expiration of prior
fiscal year budget authority and until passage of regular appropriation
acts by Congress.
(b) Operating guidance. Because the terms of CRs may vary, for each
CR, specific operating guidance will be issued by the Office of the
Assistant Secretary for Financial Resources (ASFR). This guidance will--
(1) Establish the availability of funds for existing and new
projects or activities (consistent with the language of the CR);
(2) Identify any specific limits or constraints imposed; and
(3) Establish the authorized level and timing of obligations
permitted.
(c) Contracting activities, in concert with program, budget and
finance personnel, must carefully assess contract funding decisions to--
(1) Ensure compliance with HHS guidance regarding the specific terms
of a CR;
(2) Maintain essential operations and activities; and
(3) Guard against violations of the Anti-Deficiency Act--see FAR
32.702.
[74 FR 62398, Nov. 27, 2009, as amended at 75 FR 21511, Apr. 26, 2010]
Sec. 332.704 Limitation of cost or funds.
See subpart 342.71, ``Administrative Actions for Cost Overruns,''
for procedures for handling anticipated cost overruns.
PART 333_PROTESTS, DISPUTES, AND APPEALS
Subpart 333.1_Protests
Sec.
Sec. 333.102 General.
Sec. 333.103 Protests to the agency.
Sec. 333.104 Protests to GAO.
Subpart 333.2_Disputes and Appeals
Sec. 333.203 Applicability.
Sec. 333.209 Suspected fraudulent claims.
Sec. 333.211 Contracting Officer's decision.
Sec. 333.212 Contracting Officer's duties upon appeal.
Sec. 333.212-70 Formats.
Sec. 333.213 Obligation to continue performance.
Sec. 333.215-70 Contract clauses.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 333.1_Protests
Sec. 333.102 General.
(g)(1) The OGC-GLD serves as the liaison for protests lodged with
the Government Accountability Office (GAO); is designated as the office
responsible for all protests within HHS; and serves as the notification
point with GAO for all protests.
(2) Each contracting activity shall designate a protest control
officer to serve as an advisor to the Contracting Officer and to monitor
protests from the time of initial notification until the protest has
been resolved. Contracting activities shall forward a copy of each
appointment and termination of appointment of protest control officers
through appropriate acquisition channels, including the HCA, to ASFR/
OGAPA/DA and the Deputy Associate General Counsel, OGC-GLD.
[[Page 85]]
Sec. 333.103 Protests to the agency.
(f)(1) The Contracting Officer is authorized to make the
determination, using the criteria in FAR 33.104(b), to award a contract
notwithstanding the protest after obtaining the concurrence of the
contracting activity's protest control officer and the OGC-GLD. If a
protest has been lodged with the Secretary, is addressed to the
Secretary, or requests referral to the Secretary, the Contracting
Officer shall also obtain approval from Associate DAS for Acquisition
and OGC-GLD before making the award.
(2) The Contracting Officer shall require written confirmation of
any oral protest. To be considered timely, the protester must file a
written confirmation in accordance with the applicable provisions in FAR
33.102(d)(2) and (e). In the following cases, the Contracting Officer
shall forward written protests received before award through appropriate
acquisition channels, including the HCA, to OGC-GLD for processing:
(i) The protester requests referral to the Secretary of HHS.
(ii) The protest is known to have been lodged with GAO or the
Secretary or is addressed to either.
(iii) The Contracting Officer entertains some doubt as to the proper
action regarding the protest or believes it to be in the best interest
of the Government that the Secretary or GAO consider the protest.
Otherwise, the Contracting Officer may answer protests addressed to the
Contracting Officer with the concurrence of the contracting activity's
protest control officer and OGC-GLD.
The Contracting Officer shall submit files concerning these protests
in duplicate, or as otherwise specified by OGC-GLD, within 5 calendar
days after protest receipt; mark the files ``IMMEDIATE ACTION--PROTEST
BEFORE AWARD;'' and include any documents relevant to issues raised in
the protest.
(3) The Contracting Officer shall treat protests received after
award as indicated in FAR 33.103(f)(3).
Sec. 333.104 Protests to GAO.
(a) General procedures.
(3)(ii) OGC-GLD shall process protests filed with GAO, whether pre-
or post- award. The Contracting Officer shall prepare protest files as
follows: assemble them in a secure binder, fastened at the left side
with a fastener that will permit the full page to be read; include a
numerical document index, with the first two positions reserved for the
Contracting Officer's Statement of Facts and Circumstances and the
second for OGC-GLD's Memorandum of Law, that is paginated and, as
necessary for sizable files, divided into two or more volumes; and the
cover of the report shall identify it as the protest file and include
the solicitation number and the GAO Bid Protest file number--i.e., ``B-
number.'' In addition, the Contracting Officer shall fold drawings and
place them in an envelope in the binder and the solicitation/contract
shall constitute a separate exhibit, if it is voluminous in size. The
Contracting Officer shall distribute protest files as follows: four
copies to OGC-GLD and one copy to the contracting activity's protest
control officer. In addition to the items listed in FAR
33.104(a)(3)(ii)(A) through (G), the protest file shall include the
following documents:
(H) The current status of award. (Note: When award has been made,
this shall include whether performance has commenced, shipment or
delivery has been made, or a stop work order has been issued.)
(I) A copy of any mutual agreement to suspend work on a no-cost
basis, when appropriate--see FAR 33.104(c)(4).
(J) Copies of the notice of protest given offerors and other parties
when the notice is appropriate--see FAR 33.104(a)(2).
(K) A copy of the negotiation memorandum, when applicable.
(L) The name and telephone number of the person in the contracting
office who may be contacted for information relevant to the protest.
(M) A copy of the competitive range determination.
(N) The acquisition plan, source selection plan, and the source
selection decision document.
(O) The Contracting Officer's statement of facts and circumstances,
including numbered findings of fact prepared with complete
documentation,
[[Page 86]]
and all the facts and rationale, both favorable and unfavorable, to the
Contracting Officer's position.
(4) OGC-GLD shall make the necessary distributions referenced in FAR
33.104(a)(4).
(5) Unless an alternative arrangement is reached with OGC-GLD, the
Contracting Officer shall furnish one copy of the protest file
containing the documentation specified in paragraph (a)(3)(ii) of this
section (with the exception of the Contracting Officer statement of
facts and circumstances) and FAR 33.104(a)(3)(ii)(A) through (G) to OGC-
GLD within 5 calendar days from receipt of the protest. In addition, the
Contracting Officer shall also accommodate any other OGC-GLD requests
for documents which may be needed prior to the aforementioned 5-day time
period. The Contracting Officer shall submit the Contracting Officer's
statement of facts and circumstances and the additional copies of
documentation within 14 calendar days from receipt of the protest. Since
the statute allows only a short time period in which to respond to
protests lodged with GAO, the Contracting Officer shall handle each
protest on a priority basis. OGC-GLD shall submit copies of the protest
file to GAO, the protestor, and any intervenors in accordance with FAR
33.104(a)(4)(i).
(6) Since OGC-GLD will furnish the protest file to GAO, the
protestor, and any intervenors, comments on the file from the protestor
and any intervenors will be sent to OGC-GLD.
(7) OGC-GLD shall serve as the GAO point of contact for protests
lodged with GAO.
(b) Protests before award.
(1) To make an award notwithstanding a protest, the Contracting
Officer shall prepare a finding using the criteria in FAR 33.104(b)(1),
have it executed by the HCA (non-delegable), and forward it, along with
a written request for approval to make the award (addressed to the
Associate DAS for Acquisition through OGC-GLD). Should OGC-GLD concur,
it shall forward the request to the Associate DAS for Acquisition for
final approval. The written request for approval shall contain all
relevant documentation as attachments to the request, so that the
information may be considered by Associate DAS for Acquisition.
(2) If the request to make an award notwithstanding the protest is
approved by the Associate DAS for Acquisition, OGC-GLD shall notify GAO.
Whether the request is approved or not, OGC-GLD shall telephonically
notify the contracting activity's protest control officer of the
Associate DAS for Acquisition decision, and the contracting activity's
protest control officer shall immediately notify the Contracting
Officer. Should the Associate DAS for Acquisition approve the request,
ASFR/OGAPA/DA shall send a copy of that written approval to the
contracting activity's protest control officer.
(c) Protests after award.
(2) If the Contracting Officer believes performance should be
allowed to continue notwithstanding a protest, the Contracting Officer
shall prepare a written finding using the criteria in FAR 33.104(c)(2).
The HCA (non-delegable) shall execute the written finding, which the
contracting office shall forward pursuant to the procedures described in
paragraph (b)(1) of this section. The notification procedures stated in
paragraph (b)(2) of this section shall apply to protests after award.
(d) Findings and notice. The Contracting Officer shall prepare the
written notice required by FAR 33.104(d) and provide a copy to OGC-GLD.
OGC-GLD shall provide copies to GAO, the protester, and any intervenors.
(g) Notice to GAO. FAR 33.104(g) requires the agency to notify GAO,
if the agency has not followed any of GAO's recommendations (other than
costs) within 60 days after its decision. By the end of the 60-day
period, the Contracting Officer shall notify OGC-GLD of the status of
implementing the recommendations and reasons for any non-compliance.
OGC-GLD shall serve as the designated official to comply with the
requirements of FAR 33.104(g).
(i) Express option. When GAO invokes the express option, the
Contracting Officer shall prepare the complete protest file as described
in paragraph (a)(3) of this section, to include the item in paragraph
(a)(3)(i), and deliver it (hand-carry, if necessary) to OGC-GLD in time
to meet the submittal date
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GAO established. OGC-GLD shall notify the Contracting Officer of the
submittal date after GAO has finalized its requirements. If the
Contracting Officer is not notified about a changed schedule, the
timelines for a regular bid protest outlined in FAR 33.104(a)(3)(i)
shall apply.
Subpart 333.2_Disputes and Appeals
Sec. 333.203 Applicability.
(c) The Secretary has designated the Civilian Board of Contract
Appeals (CBCA) as the authorized ``Board'' to hear and determine
disputes for the Department.
Sec. 333.209 Suspected fraudulent claims.
The Contracting Officer shall submit any instance of a contractor's
suspected fraudulent claim to the OIG for investigation.
Sec. 333.211 Contracting Officer's decision.
(a)(2) The Contracting Officer shall refer a proposed final decision
to OGC-GLD, for advice as to the legal sufficiency and format before
sending the final decision to the contractor. The Contracting Officer
shall provide OGC-GLD with the pertinent documents with the submission
of each proposed final decision.
(4)(v) When using the paragraph in FAR 33.211 (a)(4)(v), the
Contracting Officer shall insert the words ``Civilian'' before each
mention of the term ``Board of Contract Appeals.''
(h) At any time within the period of appeal, the Contracting Officer
may modify or withdraw the final decision. If a contractor has appealed
the final decision to the CBCA, the Contracting Officer shall forward
the recommended action to OGC-GLD with a supplement to the contract file
that supports the recommended correction or amendment.
Sec. 333.212 Contracting Officer's duties upon appeal.
(a) The rules set forth in the ``Rules of the Civilian Board of
Contract Appeals,'' or the rules established by the U.S. Court of
Federal Claims, as appropriate, shall govern appeals.
(b) The OGC-GLD is designated as the Government Trial Attorney to
represent the Government in the defense of appeals before the CBCA. OGC-
GLD shall provide the decision by CBCA to the appropriate Contracting
Officer for compliance in accordance with the CBCA's decision.
(c) If an appeal is filed with the CBCA, the Contracting Officer
shall assemble a file, within 30 days of receipt of an appeal or
notification that an appeal has been filed, that consists of all
documents pertinent to the appeal, including the following:
(1) The decision and findings of fact from which the appeal is
taken.
(2) The contract, including specifications and pertinent
modifications, plans and drawings.
(3) All correspondence between the parties pertinent to the appeal,
including the letter or letters of claim in response to which the
decision was issued.
(4) Transcripts of any testimony taken during the course of
proceedings, and affidavits or statements of any witness on the matter
in dispute made prior to the filing of the notice of appeal with the
CBCA.
(5) Any additional information considered pertinent. The Contracting
Officer shall furnish the appeal file to the Government Trial Attorney
for review and approval. After approval, the Contracting Officer shall
prepare four copies of the file--i.e., one for the CBCA, one for the
appellant, one for the Government Trial Attorney, and one for the
contracting office.
(d) At all times after the filing of an appeal, the Contracting
Officer shall render whatever assistance is requested by the Government
Trial Attorney. When an appeal is set for hearing, the Contracting
Officer shall provide Government witnesses and specified physical and
documentary evidence to the Trial Attorney. The Trial Attorney shall
ensure the presence of all witnesses and documentary evidence at both
the prehearing conference and hearing.
(e) If a contractor, which has filed an appeal with the CBCA, elects
to accept fully the decision from which the appeal was taken, or any
modification to
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it, and gives written notification of acceptance to the Government Trial
Attorney or the concerned Contracting Officer, the Government Trial
Attorney shall notify the CBCA of the disposition of the dispute in
accordance with Rule 27 of the CBCA.
(f) If the contractor has elected to appeal to the U.S. Court of
Federal Claims, the U.S. Department of Justice will represent HHS.
However, the Contracting Officer shall coordinate all actions through
OGC-GLD.
Sec. 333.212-70 Formats.
(a) Contracting activities shall use the following format in
transmitting appeal files to CBCA:
Your reference:
(Docket No.)
(insert name)
Clerk of the Board, Civilian Board of Contract Appeals
1800 F. Street, Washington, DC 20405 (for regular mail delivery)
1800 M Street, 6th floor, Washington, DC 20036 [for overnight and
physical (hand-carry) delivery]
Dear (insert name):
Transmitted herewith are documents relative to the appeal under Contract
No. ---- with the ------------ (insert name of contractor) in
accordance with the procedures under Rule 4. The Government Trial
Attorney for this case is ------------ (insert General Law Division,
Office of General Counsel, Department of Health and Human Services,
330 Independence Avenue, SW., Washington, DC 20201).
The request for payment of charges resulting from the processing of this
appeal shall be addressed to: ------------ (insert name and address
of cognizant finance office.)
Sincerely yours,
Contracting Officer
Enclosures
(b) Contracting activities shall use the following format in
notifying the appellant that the appeal file was submitted to CBCA:
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
(insert contractor name and address)
Dear ------------: (insert name)
An appeal file has been compiled relative to the appeal under Contract
No. ------ (insert number), and has been submitted to the Civilian
Board of Contract Appeals (CBCA). The enclosed duplicate of the
appeal file is identical to that submitted to CBCA, except for
contract documents which you already have been provided. You may
furnish or suggest any additional information deemed pertinent to
the appeal to CBCA according to their rules.
The CBCA will provide you with further information concerning this
appeal.
Sincerely yours,
Contracting Officer
Enclosure
Sec. 333.213 Obligation to continue performance.
(a) The Contracting Officer shall use the Disputes clause at FAR
52.233-1 without the use of Alternate I. However, if the Contracting
Officer determines that the Government's interest would be better served
by use of paragraph (i) in Alternate I, the HCA or CCO shall approve its
use.
Sec. 333.215-70 Contract clauses.
(a) The Contracting Officer shall insert the clause in 352.233-70,
Choice of Law (Overseas), in solicitations and contracts when
performance will be outside the United States, its possessions, and
Puerto Rico, except as otherwise provided in a government-to-government
agreement.
(b) The Contracting Officer shall insert the clause in 352.233-71,
Litigation and Claims, in solicitations and contracts when a cost-
reimbursement, time-and-materials, or labor-hour contract is
contemplated (other than a contract for a commercial item.)
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SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING
PART 334_MAJOR SYSTEM ACQUISITION
Subpart 334.2_Earned Value Management System
Sec.
Sec. 334.200 Definitions.
Sec. 334.201 Policy.
Sec. 334.202 Integrated Baseline Reviews (IBRs).
Sec. 334.203 Solicitation provisions and contract clauses.
Sec. 334.203-70 HHS solicitation provisions and contract clauses.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 334.2_Earned Value Management System
Sec. 334.200 Definitions.
As used in this subpart, the following definitions shall apply:
Full EVMS means tracking and reporting of both the cost and schedule
aspects of a contract using the principles and guidelines described in
ANSI/EIA Standard-748, Earned Value Management Systems (using the
version of the Standard that is in effect at the time of the
solicitation).
Partial EVMS means tracking and reporting of only the schedule
aspects of a contract using the principles and guidelines described in
ANSI/EIA Standard-748, Earned Value Management Systems (using the
version of the Standard that is in effect at the time of the
solicitation).
Sec. 334.201 Policy.
(a) For acquisitions for development designated as major in
accordance with both OMB Circular A-11 and HHS policy on major
acquisitions; for acquisitions that involve substantial development,
modification or enhancement; or for acquisitions that involve
significant upgrade of operational or steady state systems or programs,
use of an Earned Value Management System (EVMS) is required as follows:
(1) For individual cost-reimbursement or fixed-price-incentive
contracts (with incentive based on cost) valued at $10 million to $25
million, including options, full EVMS (as defined in 334.200) is
required and the contractor's EVMS shall comply with the guidelines in
ANSI/EIA Standard-748.
(2) For individual firm-fixed-price, term form (level-of-effort) of
any type, time-and-materials, or labor-hour contracts valued at $10
million to $25 million, including options, partial EVMS (as defined in
334.200) is required and the contractor's EVMS shall comply with the
guidelines in ANSI/EIA Standard-748.
(3) For individual cost-reimbursement or fixed-price-incentive
contracts (with incentive based on cost) valued at more than $25
million, including options, full EVMS (as defined in 334.200) is
required and the contractor's EVMS must be formally validated and
accepted by the Government--i.e., the contractor's Cognizant Federal
Agency (CFA), as defined in FAR 2.101 and described in FAR 42.003).
(4) For individual firm-fixed-price, term form (level-of-effort) of
any type, time-and-materials, or labor-hour contracts valued at more
than $25 million, including options, partial EVMS (as defined in
334.200) is required and the contractor's EVMS must be formally
validated and accepted by the Government--i.e., the contractor's CFA.
(5) For individual contracts of any type valued at less than $10
million, including options, full or partial EVM application, as
appropriate to the contract type involved, is optional. The
recommendation to use EVM should be based upon a risk analysis by the
Program Manager/Project Officer. A decision to use EVM at this level
requires the prior approval of the cognizant HCA.
(b) EVM is not required, but may be applied with prior written
approval of the HCA, on contracts of any dollar amount meeting either of
the following criteria:
(1) The acquisition is for non-developmental support services (e.g.,
program office support, Independent Verification & Validation services),
steady state operations, basic and applied research, and routine
services
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(e.g., building maintenance, help-desk services, landscaping services).
(2) The contract is for a commercial item(s) under FAR Part 12.
(c) When full EVM is required on a prime contract, it applies to
subcontracts issued there under if those subcontracts have a value and
are of a type and subject matter that would have required the use of
full EVM had they been prime contracts. However, if the prime contract
requires the use of only partial EVM, any subcontracts to which EVM is
made applicable, because of dollar value, contract type or subject
matter, shall require only partial EVM.
(d) When offerors are required to provide an EVMS plan as part of
their proposals, the Contracting Officer shall request the assistance of
the Project Officer (and/or an appropriate HHS-designated third party)
in determining the adequacy of such proposed EVMS plans.
(e) The selection or use of a particular contract type, if done only
or primarily to avoid the application of full EVM to the acquisition is
prohibited.
Sec. 334.202 Integrated Baseline Reviews (IBRs).
(a) An IBR normally should be conducted as a post-award activity. A
pre-award IBR may be conducted only if--
(1) The AP contains documentation that demonstrates the need and
rationale for a pre-award IBR, including an assessment of the impact on
the source selection schedule and the expected benefits;
(2) The use of a pre-award IBR is approved in writing by the HCA
prior to the issuance of the solicitation;
(3) The source selection plan specifically addresses how the results
of a pre-award IBR will be used during source selection, including any
weight to be given to it in source evaluation, and that same or similar
rationale is clearly set forth in the solicitation; and,
(4) Specific arrangements are made, and budget authority is
provided, to compensate all offerors who prepare for or participate in a
pre-award IBR; and the solicitation informs prospective offerors of the
means for and conditions of such compensation.
Sec. 334.203 Solicitation provisions and contract clauses.
The FAR EVMS solicitation provisions and contract clause shall not
be used in HHS contracts. See 334.203-70 for the HHS solicitation
provisions and contract clauses.
Sec. 334.203-70 HHS solicitation provisions and contract clauses.
As provided in 334.201(a) and 334.202, the Contracting Officer shall
insert the following:
(a) The provision in 352.234-1, Notice of Earned Value Management
System--Pre-Award IBR, in solicitations that will require the contractor
to use an EVMS, whether full or partial, when the Government requires an
IBR prior to award.
(b) The provision in 352.234-2, Notice of Earned Value Management
System--Post-Award IBR, in solicitations that will require the
contractor to use an EVMS, whether full or partial, when the Government
requires an IBR after contract award.
(c) The clause in 352.234-3, Full Earned Value Management System, in
solicitations and contracts, valued at, or greater than, $25 million,
when a cost-reimbursement or fixed-price-incentive contract (where the
incentive is based on cost) is contemplated, and which require a
contractor to use full EVMS. The Contracting Officer shall use the
clause with its Alternate I when the contract value is equal to or
greater than $10 million, but less than $25 million.
(d) The clause in 352.234-4, Partial Earned Value Management System,
in solicitations and contracts, valued at, or greater than, $25 million,
when a firm-fixed-price, time-and-materials, labor-hour, or term-form
cost-plus-fixed-fee contract is contemplated, and which require a
contractor to use partial EVMS. The Contracting Officer shall use the
clause with its Alternate I when the contract value, is equal to or
greater than $10 million, but less than $25 million.
[[Page 91]]
PART 335_RESEARCH AND DEVELOPMENT CONTRACTING
Sec.
Sec. 335.070 Cost sharing.
Sec. 335.070-1 Policy.
Sec. 335.070-2 Amount of cost sharing.
Sec. 335.070-3 Method of cost sharing.
Sec. 335.070-4 Contract award.
Sec. 335.071 Special determinations and findings affecting research and
development contracting.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Sec. 335.070 Cost-sharing.
Sec. 335.070-1 Policy.
(a) Contracting activities shall encourage performing organizations
to contribute to the cost of performing R & D, through the use of cost-
sharing contracts, where there is a probability that the contractor will
receive present or future benefits from participation, such as increased
technical know-how, training for employees, acquisition of equipment,
and use of background knowledge in future contracts. Cost-sharing is
intended to serve the mutual interests of the Government and the
performing organization by helping to ensure efficient utilization of
the resources available for the conduct of R & D projects and by
promoting sound planning and prudent fiscal policies of the performing
organization. The Contracting Officer shall use a cost-sharing contract,
unless the Contracting Officer determines that a request for cost-
sharing would not be appropriate because of the following circumstances:
(1) The particular R & D objective or scope of effort for the
project is specified by the Government rather than proposed by the
performing organization. This would usually include any formal
Government solicitation for a specific project.
(2) The R & D effort has only minor relevance to the non-Federal
activities of the performing organization, and the organization is
proposing to undertake the R & D primarily as a service to the
Government.
(3) The organization has little or no non-Federal sources or funds
from which to make a cost contribution. Organizations which are
predominantly engaged in R & D and have little or no production or other
service activities may not be in a favorable position to make a cost
contribution. Accordingly, the Contracting Officer shall normally not
request cost-sharing, if cost-sharing would require the Government to
provide funds through some other means (such as fees) to enable the
organization to cost-share.
(b) The Contracting Officer has the responsibility for negotiating
cost-sharing. Each R & D contract file shall indicate whether the
Contracting Officer considered cost-sharing appropriate for that
particular contract and in what amount. If cost sharing was not
appropriate, the file must include a statement and factual basis for
that decision (e.g., ``Because the contractor will derive no benefits
from this award that can be applied to its commercial activities, cost-
sharing is not considered appropriate.'') The Contracting Officer shall
coordinate with the Project Officer before documenting this decision.
(c) If the Contracting Officer considers cost-sharing appropriate
for an R & D contract and the contractor refuses to accept this type of
contract, the Contracting Officer may make an award without cost-
sharing, if the Contracting Officer concludes that payment of the full
cost of the R & D effort is necessary to obtain the services of that
particular contractor.
Sec. 335.070-2 Amount of cost sharing.
When cost-sharing is appropriate, the Contracting Officer shall use
the following guidelines to determine the amount of cost participation
by the contractor:
(a) The amount of cost participation depends on the extent to which
the R & D effort or results are likely to enhance the performing
organization's capability, expertise, or competitive position, and the
value of this enhancement to the performing organization. Therefore,
contractor cost participation could reasonably range from as little as
one percent or less of the total project cost to more than 50 percent of
the total project cost. Ultimately, cost-sharing is a negotiable item.
As
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such, the amount of cost-sharing shall be proportional to the
anticipated value of the contractor's gain.
(b) If the performing organization will not acquire title to, or the
right to use, inventions, patents, or technical information resulting
from the R & D project, it is normally appropriate to obtain less cost-
sharing than in cases in which the performer acquires these rights.
(c) A fee or profit is not normally paid to the performing
organization, if the organization is to contribute to the cost of the R
& D effort, but the amount of cost-sharing may be reduced to reflect the
fact that the organization is foregoing its normal fee or profit in the
research. However, if the R & D is expected to be of only minor value to
the performing organization, and if a statute does not require cost-
sharing, it may be appropriate for the performer to make a contribution
in the form of a reduced fee or profit rather than sharing costs of the
project.
(d) The organization's participation may be considered over the
total term of the project, so that a relatively high contribution in one
year may be offset by a relatively low contribution in another.
(e) A relatively low degree of cost-sharing may be appropriate, if
an area of R & D requires special stimulus in the national interest.
Sec. 335.070-3 Method of cost sharing.
Cost-sharing on individual contracts may be accomplished either by a
contribution of part or all of one or more elements of allowable cost of
the work being performed or by a fixed amount or stated percentage of
the total allowable costs of the project. Contractors shall not charge
costs contributed to the Government under any other instrument (e.g.,
grant or contract), including allocations to other instruments as part
of any independent R & D program.
Sec. 335.070-4 Contract award.
Consistent with HHS' objectives of competition and support of the
small business program, Contracting Officers shall not award contracts
solely on the basis of an organization's ability or willingness to cost-
share. Contracting Officers shall make awards primarily on the
contractor's competence and only after adequate competition has been
obtained among large and small business organizations, whenever
possible. An offeror's willingness to share costs is not a technical
evaluation consideration, but a business consideration, which is
secondary to selecting the best qualified source.
Sec. 335.071 Special determinations and findings affecting research and
development contracting.
OPDIV heads shall sign individual and class D & Fs for--
(a) Acquisition or construction of equipment or facilities on
property not owned by the United States pursuant to 42 U.S.C. 241(a)(7);
and
(b) Use of an indemnification provision in an R & D contract
pursuant to 42 U.S.C. 241(a)(7).
PART 337_SERVICE CONTRACTING_GENERAL
Subpart 337.1_Service Contracts_General
Sec.
Sec. 337.103-70 Solicitation provisions and contract clauses.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 337.1_Service Contracts_General
Sec. 337.103-70 Solicitation provisions and contract clauses.
(a) The Contracting Officer shall insert the clause in 352.237-70,
Pro-Children Act, in solicitations, contracts, and orders that involve
(a) kindergarten, elementary, or secondary education or library services
or (b) health or daycare services that are provided to children under
the age of 18 on a routine or regular basis pursuant to the Pro-Children
Act of 1994.
(b) The Contracting Officer shall insert the clause in 352.237-71,
Crime Control Act--Reporting of Child Abuse, in solicitations,
contracts, and orders that require performance on Federal
[[Page 93]]
land or in a Federally operated (or contracted) facility and involve the
professions/activities performed by persons specified in the Crime
Control Act of 1990, including, but not limited to, physicians, nurses,
dentists, health care practitioners, optometrists, psychologists,
emergency medical technicians, alcohol or drug treatment personnel,
child care workers and administrators, emergency medical technicians and
ambulance drivers.
(c) The Contracting Officer shall insert the clause in 352.237-72,
Crime Control Act--Requirement for Background Checks, in solicitations,
contracts, and orders that involve providing child care services to
children under the age of 18, including social services, health and
mental health care, child- (day) care, education (whether or not
directly involved in teaching), and rehabilitative programs covered
under the Crime Control Act of 1990 (Act).
PART 339_ACQUISITION OF INFORMATION TECHNOLOGY
Subpart 339.1_General
Sec.
Sec. 339.101 Policy.
Subpart 339.2_Electronic and Information Technology
Sec. 339.201 Clarification.
Sec. 339.201-70 Required provision and contract clause.
Sec. 339.203 Approval of exceptions.
Subpart 339.70_Use of General Services Administration Blanket Purchase
Agreements for Independent Risk Analysis Services
Sec. 339.7000 Policy.
Sec. 339.7001 Request for approval to make an award to other than a GSA
BPA holder.
Sec. 339.7002 Notice of intended award.
Subpart 339.71_Information Security Management
Sec. 339.7100 Definitions.
Sec. 339.7101 Policy.
Sec. 339.7102 Applicability.
Sec. 339.7103 Solicitation and contract clause.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 74 FR 62398, Nov. 27, 2009, unless otherwise noted.
Subpart 339.1_General
Sec. 339.101 Policy.
(d)(1) The Contracting Officer shall insert the clause in 352.239-
70, Standard for Security Configurations, in solicitations, contracts,
and orders that involve the operation or acquisition of an information
technology system (for definition of the latter term, see http://
www.hhs.gov/ocio/policy.)
An HHS information security policy waiver, the template for which is
available at: http://intranet.hhs.gov/infosec/policies--memos.html, must
be approved in order to deviate from HHS OCIO Standard 2009-0001.001S,
HHS Standard for Security Configurations Language in HHS Contracts,
dated January 30, 2009. A copy of the approved waiver shall be forwarded
to the Contracting Officer who, in turn, shall request a comparable
deviation for the clause in 352.239-70.
(2) The Contracting Officer shall insert the clause in 352.239-71,
Standard for Encryption Language, in solicitations, contracts, and
orders that involve the acquisition or lease of, or the requirement to
use, desktop or laptop computers, mobile devices, or portable media to
store or process HHS sensitive information that the Project Officer
categorizes as moderate or high under Federal Information Processing
Standard (FIPS) 199, Standards for Security Categorization of Federal
Information and Information Systems, dated February 2004. An HHS
information security policy waiver, the template for which is available
at: http://intranet.hhs.gov/infosec/policies--memos.html, must be
approved in order to deviate from HHS OCIO Standard 2009-0002.001S, HHS
Standard for Encryption Language in HHS Contracts, dated January 30,
2009. A copy of the approved waiver shall be forwarded to the
Contracting Officer who, in turn, shall request a comparable deviation
for the clause in 352.239-71.
Subpart 339.2_Electronic and Information Technology
Sec. 339.201 Clarification.
FAR Subpart 39.2, Electronic and Information Technology, requires
Federal
[[Page 94]]
agencies to ensure that, when acquiring EIT, Federal employees with
disabilities and members of the public with disabilities have access to
and use of information and data that is comparable to individuals
without disabilities. This EIT access requirement does not apply to a
contractor's internal workplaces. EIT that is neither used nor accessed
by Federal employees or members of the public is not subject to the
Access Board accessibility standards. Contractors in their professional
capacity are not members of the public for purposes of Section 508.
Sec. 339.201-70 Required provision and contract clause.
(a) The Contracting Officer shall insert the provision in 352.239-
73(a), Electronic and Information Technology Accessibility, in
solicitations valued at more than the micro-purchase threshold that
involve the development, acquisition, maintenance, or use of EIT
products and services subject to Section 508 of the Rehabilitation Act
of 1973, as amended, including EIT deliverables such as electronic
documents and reports. (Note: Exceptions to this requirement can be
found in FAR 39.204.) After approval of the Section 508 Official or
designee, the Contracting Officer may waive the requirement for offerors
to provide an HHS Section 508 Product Assessment Template, if Section
508 EIT conformance can be determined conclusively through other less
formal methods. The Contracting Officer shall document in the award file
any waiver for submission of the Product Assessment Template. The
approval of a waiver by the Section 508 Official does not, however,
eliminate the requirement for product assessment against Section 508
accessibility standards.
(b) The Contracting Officer shall insert the clause in 352.239-
73(b), Electronic and Information Technology Accessibility, in contracts
and orders that involve the development, acquisition, maintenance, or
use of EIT products and services, including EIT deliverables such as
electronic documents and reports, subject to Section 508 of the
Rehabilitation Act of 1973, as amended, unless the EIT products and
services are incidental to the project. (Note: Other exceptions to this
requirement can be found at FAR 39.204.)
(c) When acquiring EIT products and services subject to Section 508
of the Rehabilitation Act of 1973, as amended, in the following
circumstances, the Contracting Officer shall insert the paragraph in
352.239-73(c), Schedule for Contractor Submission of Section 508 Annual
Report, which requires a contractor to provide an HHS Section 508 Annual
Report, at the end of the clause in 352.239-73(b) and cite the schedule
for report submission, where indicated:
(1) New multiple-year contracts.
(2) Existing multiple-year contracts, with a performance period of 1
year or more remaining as of January 16, 2008 (the effective date of
HHS' interim acquisition guidance).
(3) New multiple-year task and delivery orders exceeding $100,000
awarded under IDIQ or FSS contracts.
(4) Existing multiple-year task and delivery orders exceeding
$100,000 awarded under IDIQ or FSS contracts, with a task/delivery order
performance period of 1 year or more remaining as of January 16, 2008.
(5) New multiple-year BPA orders that exceed $100,000.
(6) Existing multiple-year BPA orders with a performance period of 1
year or more remaining as of January 16, 2008.
(7) New multiple-year contracts with option periods/quantities.
(8) Existing multiple-year contracts with option periods/quantities
remaining as of January 16, 2008.
(d) Before adding funds to a multiple-year contract or order--see
339.201-70(c), that involves the acquisition of EIT products and
services, including EIT deliverables such as electronic documents and
reports, subject to Section 508 of the Rehabilitation Act of 1973, as
amended, the Contracting Officer shall ensure that the contractor has
provided to the Contracting Officer and COTR a properly completed HHS
Section 508 Annual Report--see Section 508 policy on HHS Office on
Disability Web site. The Contracting Officer shall request that the
contractor provide the report in sufficient time for its review and
approval by the Contracting Officer, COTR, and the Section 508 Official
[[Page 95]]
or designee, prior to funding performance beyond the currently funded
contract performance period. The Contracting Officer shall ensure that
the report and all related approvals are made a part of the official
contract/order file. The Section 508 Official or designee shall monitor
the Annual Reports, direct corrective measures to improve their
submission and quality, and report improvement actions taken to the HHS
Office on Disability.
Sec. 339.203 Approval of exceptions.
(a) Procedures to document exception and determination requests are
set forth in the OPDIV/STAFFDIV Section 508 Implementation Plans
required by paragraph 4.1 of the HHS Section 508 policy.
(b) In the development of an AP or other acquisition request
document, the Contracting Officer shall ensure that all Section 508
commercial non-availability or undue burden exception determination
requests for applicable EIT requirements are: (1) Documented and
certified in accordance with the requirements of paragraph 4.3, Section
508 Compliance Exceptions, of the HHS Section 508 policy; (2) signed by
the Project Officer; (3) approved by the OPDIV Section 508 Official or
designee; and (4) included in the AP or other acquisition request
document provided by the Project Officer to the contracting office.
(c) In instances where a technical evaluation has been performed,
and no organization's proposed products or services meet some or all of
Section 508 accessibility standards, in order to proceed with the
acquisition, the Contracting Officer shall provide an exception
determination request along with the technical evaluation panel's
assessment of the Section 508 evaluation factor to the designated
Section 508 Official or designee for review and approval/disapproval.
See 315.304 regarding obtaining approval of technical evaluation panel
assessments by the Section 508 Official or designee. The Contracting
Officer shall include the Section 508 Official's or designee's approval/
disapproval of the exception determination request in the official
contract file and reference it, as appropriate, in all source selection
documents. For further information, see paragraphs 4.3, Section 508
Compliance Exceptions, and paragraph 11, Appendix A, of HHS Section 508
policy--see Section 508 policy on HHS Office on Disability Web site.
Subpart 339.70_Use of General Services Administration Blanket Purchase
Agreements for Independent Risk Analysis Services
Sec. 339.7000 Policy.
GSA has established government-wide BPAs for independent risk
analysis services, including verification and validation of in-house
risk assessments. For information on ordering procedures, see the
attachment to OMB memorandum (M-08-10), Use of Commercial Independent
Risk Analysis Services Blanket Purchase Agreements (BPA), dated February
4, 2008, available on the OMB Web site. HHS policy is for contracting
activities to use the GSA BPA sources to the maximum practicable extent.
Sec. 339.7001 Request for approval to make an award to other than a GSA
BPA holder.
The Contracting Officer, in conjunction with the OPDIV/STAFFDIV
Chief Information Security Officer (CISO), may determine, as part of
conducting market research for independent risk analysis services
expected to exceed the micro-purchase threshold, that obtaining the
required services from a source other than a GSA BPA holder will result
in the best value to the Government. In that event, the Contracting
Officer shall prepare a request for approval at least 15 business days
prior to the planned date of the contract or order award and forward it
through the HCA and the OPDIV/STAFFDIV CISO for concurrence, to the SPE.
The SPE shall coordinate the processing of the request with the CAO and
the HHS CIO. The request for approval shall briefly describe the
services required, indicate the intended source's pricing and other
terms and conditions, and provide the rationale for award to the
intended source rather
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than the GSA BPA holders. The request may include additional supporting
rationale to document the best value decision, as appropriate.