[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2020 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 48
Federal Acquisition Regulations System
________________________
Chapters 3 to 6
Revised as of October 1, 2020
Containing a codification of documents of general
applicability and future effect
As of October 1, 2020
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 48:
Chapter 3--Health and Human Services 3
Chapter 4--Department of Agriculture 75
Chapter 5--General Services Administration 147
Chapter 6--Department of State 313
Finding Aids:
Table of CFR Titles and Chapters........................ 415
Alphabetical List of Agencies Appearing in the CFR...... 435
List of CFR Sections Affected........................... 445
[[Page iv]]
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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.
----------------------------
[[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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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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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.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
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Code users may find the text of provisions in effect on any given date
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the Code prior to the LSA listings at the end of the volume, consult
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2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
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INCORPORATION BY REFERENCE
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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
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(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
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CFR INDEXES AND TABULAR GUIDES
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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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Oliver A. Potts,
Director,
Office of the Federal Register
October 1, 2020
[[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,
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, 2020.
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 John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
(This book contains chapters 3 to 6)
--------------------------------------------------------------------
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
300
[Reserved]
301 HHS Acquisition Regulation System........... 5
302 Definitions of words and terms.............. 6
303 Improper business practices and personal
conflicts of interest................... 7
304 Administrative matters...................... 8
SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
305 Publicizing contract actions................ 11
306 Competition requirements.................... 11
307 Acquisition planning........................ 12
308 Required sources of supplies and services... 12
309 Contractor qualifications................... 13
310 Market research............................. 14
311 Describing agency needs..................... 14
312 Acquisition of commercial items............. 16
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
313 Simplified acquisition procedures........... 17
314 Sealed bidding.............................. 17
315 Contracting by negotiation.................. 17
316 Types of contracts.......................... 20
317 Special contracting methods................. 20
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
319 Small business programs..................... 22
322 Application of labor laws to Government
acquisitions............................ 22
323 Environment, energy and water efficiency,
renewable energy technologies,
occupational safety, and drug-free
workplace............................... 22
324 Protection of privacy and freedom of
information............................. 23
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326 Other socioeconomic programs................ 25
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
327 Patents, data, and copyrights............... 30
328
[Reserved]
330 Cost accounting standards................... 30
331 Contract cost principles and procedures..... 30
332 Contract financing.......................... 31
333 Protests, disputes, and appeals............. 33
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
334 Major system acquisition.................... 34
335 Research and development contracting........ 34
336 Construction and architect-engineer
contracts............................... 35
337 Service contracting--general................ 36
339 Acquisition of information technology....... 37
SUBCHAPTER G--CONTRACT MANAGEMENT
342 Contract administration..................... 39
SUBCHAPTER H--CLAUSES AND FORMS
352 Solicitation provisions and contract clauses 40
353 Forms [Reserved]............................ 69
SUBCHAPTERS I-L [RESERVED]
SUBCHAPTER M--HHS SUPPLEMENTATIONS
370 Special programs affecting acquisition...... 70
371-399
[Reserved]
[[Page 5]]
SUBCHAPTER A_GENERAL
PART 300 [RESERVED]
PART 301_HHS ACQUISITION REGULATION SYSTEM--Table of Contents
Subpart 301.1_Purpose, Authority, and Issuance
Sec.
301.101 Purpose.
301.103 Authority.
301.106 Office of Management and Budget approval under the Paperwork
Reduction Act.
Subpart 301.2 [Reserved]
Subpart 301.4_Deviations from the FAR
301.401 Deviations.
Subpart 301.6_Career Development, Contracting Authority, and
Responsibilities
301.602 Contracting officers.
301.602-3 Ratification of unauthorized commitments.
301.603 Selection, appointment, and termination of appointment of
contracting officers.
301.603-1 General.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 301.1_Purpose, Authority, and Issuance
301.101 Purpose.
(a) The Department of Health and Human Services (HHS) Acquisition
Regulation (HHSAR) establishes uniform HHS acquisition policies and
procedures that implement and supplement the Federal Acquisition
Regulation (FAR).
(b)(1) The HHSAR contains HHS policies that govern the acquisition
process or otherwise control acquisition relationships between HHS'
contracting activities and contractors. The HHSAR contains--
(i) Requirements of law;
(ii) HHS-wide policies;
(iii) Deviations from FAR requirements; and
(iv) Policies that have a significant effect beyond the internal
procedures of HHS or a significant cost or administrative impact on
contractors or offerors.
(2) Relevant internal procedures, guidance, and information not
meeting the criteria in paragraph (b)(1) of this section are issued by
HHS in other announcements, internal procedures, guidance, or
information.
301.103 Authority.
(b) The Assistant Secretary for Financial Resources (ASFR)
prescribes the HHSAR under the authority of 5 U.S.C. 301 and section
205(c) of the Federal Property and Administrative Services Act of 1949,
as amended (40 U.S.C. 121(c)(2)), 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.''
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:
------------------------------------------------------------------------
HHSAR Segment OMB Control No.
------------------------------------------------------------------------
311.7102....................................... 0990-0434
311.7202(b).................................... 0990-0434
311.7300....................................... 0990-0436
337.103(d)(3).................................. 0990-0430
337.103(d)(4).................................. 0990-0433
370.301........................................ 0990-0431
370.401........................................ 0990-0432
352.211-1...................................... 0990-0434
352.211-2...................................... 0990-0434
352.211-3...................................... 0990-0436
352.227-11..................................... 0990-0419
352.227-14..................................... 0990-0419
352.227-71..................................... 0990-0430
352.237-72..................................... 0990-0433
352.237-73..................................... 0990-0431
352.270-4a..................................... 0990-0431
352.270-4b..................................... 0990-0431
352.270-10..................................... 0990-0431
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352.270-11..................................... 0990-0432
352.270-5a..................................... 0990-0432
352.270-5b..................................... 0990-0432
------------------------------------------------------------------------
Subpart 301.2 [Reserved]
Subpart 301.4_Deviations from the FAR
301.401 Deviations.
Contracting officers are not permitted to deviate from the FAR or
HHSAR without seeking proper approval. With full acknowledgement of FAR
1.102(d) regarding innovative approaches, any deviation to FAR or the
HHSAR requires approval by the Senior Procurement Executive (SPE).
Subpart 301.6_Career Development, Contracting Authority, and
Responsibilities
301.602 Contracting officers.
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. Unauthorized
commitments do not follow the appropriate process for the expenditure of
Government funds. Consequently, the Government may not be able to ratify
certain actions, putting a contractor at risk for taking direction from
a Federal official other than the contracting officer. See FAR 1.602-1.
Government employees responsible for unauthorized commitments are
subject to disciplinary action. Contractors perform at their own risk
when accepting direction from unauthorized officials. Failure to follow
statutory and regulatory processes for the expenditure of Government
funds is a very serious matter.
(2) The head of the contracting activity (HCA) is the official
authorized to ratify an unauthorized commitment. No other re-delegations
are authorized.
(c) Limitations. (5) The HCA shall coordinate the request for
ratification with the Office of General Counsel, General Law Division
and submit a copy to the SPE.
301.603 Selection, appointment, and termination of appointment of
contracting officers.
301.603-1 General.
(a) The Agency head has delegated broad authority to the Chief
Acquisition Officer, who in turn has further delegated this authority to
the SPE. The SPE has further delegated specific acquisition authority to
the Operating and Staff Division heads and the HCAs. The HCA (non-
delegable) shall select, appoint, and terminate the appointment of
contracting officers.
(b) To ensure proper control of redelegated acquisition authorities,
HCAs shall maintain a file containing successive delegations of HCA
authority through the contracting officer level.
PART 302_DEFINITIONS OF WORDS AND TERMS--Table of Contents
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 302.1_Definitions
302.101 Definitions.
(a) Agency head or head of the agency, unless otherwise stated,
means the Secretary of Health and Human Services or specified designee.
(b) Contracting Officer's Representative (COR) is a Federal employee
designated in writing by a contracting officer to act as the contracting
officer's representative in monitoring and administering specified
aspects of contractor performance after award of a contract or order. In
accordance with local procedures, operating divisions (OPDIVs) or staff
divisions (STAFFDIVs) may designate CORs for firm fixed-price contracts
or orders. COR's responsibilities may include verifying that:
(1) The contractor's performance meets the standards set forth in
the contract or order;
(2) The contractor meets the contract or order's technical
requirements by
[[Page 7]]
the specified delivery date(s) or within the period of performance; and
(3) The contractor performs within cost ceiling stated in the
contract or order. CORs must meet the training and certification
requirements specified in 301.604.
(c) Head of the Contracting Activity (HCA) is an official having
overall responsibility for managing a contracting activity, i.e. the
organization within an OPDIV or STAFFDIV or other HHS organization which
has been delegated broad authority regarding the conduct of acquisition
functions.
PART 303_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST--Table of Contents
Subpart 303.1_Safeguards
Sec.
303.101 Standards of conduct.
303.101-3 Agency regulations.
303.104-7 Violations or possible violations of the Procurement Integrity
Act.
Subpart 303.2_Contractor Gratuities to Government Personnel
303.203 Reporting suspected violations of the Gratuities clause.
Subpart 303.6_Contracts with Government Employees or Organizations Owned
or Controlled by Them
303.602 Exceptions.
Subpart 303.7_Voiding and Rescinding Contracts
303.704 Policy.
Subpart 303.8_Limitation on the Payment of Funds to Influence Federal
Transactions
303.808-70 Solicitation provision and contract clause.
Subpart 303.10_Contractor Code of Business Ethics and Conduct
303.1003 Requirements.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 303.1_Safeguards
303.101 Standards of conduct.
303.101-3 Agency regulations.
(a)(3) The HHS Standards of Conduct are prescribed in 45 CFR part
73.
303.104-7 Violations or possible violations of the Procurement
Integrity Act.
(a)(1) The contracting officer shall submit to the head of the
contracting activity (HCA) for review and concurrence 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. The HCA shall--
(i) Refer the matter immediately to the Associate Deputy Assistant
Secretary--Acquisition (ADAS-A) for review, who may consult with the
appropriate legal office representative and the Office of 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
ADAS-A before proceeding with an action.
(b) The HCA (non-delegable) shall act with respect to actions taken
under the Federal Acquisition Regulation (FAR) clause at 52.203-10,
Price or Fee Adjustment for Illegal or Improper Authority.
Subpart 303.2_Contractor Gratuities to Government Personnel
303.203 Reporting suspected violations of the Gratuities clause.
HHS personnel shall report suspected violations of the clause at FAR
52.203-3, Gratuities, to the contracting officer, who will in turn
report the matter to the Office of General Counsel (OGC), Ethics
Division for disposition.
[[Page 8]]
Subpart 303.6_Contracts with Government Employees or Organizations Owned
or Controlled by Them
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
303.704 Policy.
(a) For purposes of supplementing FAR subpart 3.7, the HCA (non-
delegable) is the designee. Coordination with the Senior Procurement
Executive is required.
Subpart 303.8_Limitation on the Payment of Funds to Influence Federal
Transactions
303.808-70 Solicitation provision and contract clause.
The contracting officer shall insert the clause at 352.203-70, Anti-
lobbying, in solicitations and contracts that exceed the simplified
acquisition threshold.
Subpart 303.10_Contractor Code of Business Ethics and Conduct
303.1003 Requirements.
(b) The contracting officer, when notified of a possible contractor
violation, in accordance with FAR 3.1003(b), shall notify the OIG and
the HCA.
(c)(2) The contracting officer shall specify the title of HHS' OIG
hotline poster and the Web site where the poster can be obtained in
paragraph (b)(3) of the clause at FAR 52.203-14.
PART 304_ADMINISTRATIVE MATTERS--Table of Contents
Subpart 304.6_Contract Reporting
Sec.
304.602 General.
304.604 Responsibilities.
Subpart 304.13_Personal Identity Verification
304.1300 Policy.
Subpart 304.16_Unique Procurement Instrument Identifiers
304.1600 Scope of subpart.
Subpart 304.70 [Reserved]
Subpart 304.71_Review and Approval of Proposed Contract Actions
304.7100 Policy.
Subpart 304.72_Affordable Care Act Prevention and Public Health Fund_
Reporting Requirements
304.7200 Scope of subpart.
304.7201 Procedures.
304.7202 Contract clause.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 304.6_Contract Reporting
304.602 General.
Follow internal department procedures for reporting information to
the Federal Procurement Data System (FPDS) and for resolving technical
or policy issues relating to FPDS contract reporting.
304.604 Responsibilities.
The Department of Health and Human Services (HHS) acquisition
officials and staff shall report their contract information in FPDS
accurately and timely.
Subpart 304.13_Personal Identity Verification
304.1300 Policy.
To ensure compliance with Homeland Security Presidential Directive-
12: Policy for a Common Identification Standard for Federal Employees
and Contractors (HSPD-12) and the Presidential Cross Agency Priority for
strong authentication, contracting officers shall provide in each
acquisition those HSPD-12 requirements necessary for contract
performance.
[[Page 9]]
Subpart 304.16_Unique Procurement Instrument Identifiers
304.1600 Scope of subpart.
This subpart provides guidance for assigning identification numbers
to solicitation or contract actions. The Senior Procurement Executive
shall be responsible for establishing a numbering system within the
department that conforms to Federal Acquisition Regulation (FAR) subpart
4.16.
Subpart 304.70 [Reserved]
Subpart 304.71_Review and Approval of Proposed Contract Actions
304.7100 Policy.
In accordance with HHS delegated acquisition authority, the FAR,
this regulation, internal policies and guidance, the head of the
contracting activity (non-delegable) shall establish review and approval
procedures for proposed contract actions to ensure that--
(a) Contractual documents are in conformance with law, established
policies and procedures, and sound business practices;
(b) Contract actions properly reflect the mutual understanding of
the parties; and
(c) The contracting officer is informed of deficiencies and items of
questionable acceptability, and takes corrective action.
Subpart 304.72_Affordable Care Act Prevention and Public Health Fund_
Reporting Requirements
304.7200 Scope of subpart.
This subpart implements Section 220 of Public Law 112-74, FY 2012
Labor, HHS and Education Appropriations Act, which requires, semi-annual
reporting on the use of funds from the Prevention and Public Health Fund
(PPHF), Public Law 111-148, sec. 4002. Contractors that receive awards
(or modifications to existing awards) with a value of $25,000 or more
funded, in whole or in part, from the PPHF, shall report information
specified in the clause at 352.204-70, Prevention and Public Health
Fund--Reporting Requirements, including, but not limited to--
(a) The dollar amount of contractor invoices;
(b) The supplies delivered and services performed; and
(c) Specific information on subcontracts with a value of $25,000 or
more.
304.7201 Procedures.
(a) In any contract action funded in whole or in part by the PPHF,
the contracting officer shall indicate that the contract action is being
made under the PPHF, and indicate which products or services are funded
under the PPHF. This requirement applies whenever PPHF funds are used,
regardless of the contract instrument.
(b) To maximize transparency of PPHF funds that shall be reported by
the contractor, the contracting officer shall structure contract awards
to allow for separately tracking PPHF funds. For example, the
contracting officer may consider awarding dedicated separate contracts
when using PPHF funds or establishing contract line item number
structures to prevent commingling of PPHF funds with other funds.
(c) Contracting officers shall ensure that the contractor complies
with the reporting requirements of 352.204-70. Upon receipt of each
report, the contracting officer shall review it for completeness,
address any clarity or completeness issues with the contractor, and
submit the final approved report in Section 508 compliant format to an
Assistant Secretary for Public Affairs point-of-contact for posting on
HHS' PPHF Web site at http://www.hhs.gov/open/prevention/index.html no
later than 30 days after the end of the reporting period. If the
contractor fails to comply with the reporting requirements, the
contracting officer shall exercise appropriate contractual remedies.
(d) The contracting officer shall make the contractor's failure to
comply with the reporting requirements a part of the contractor's
performance information under FAR subpart 42.15.
[[Page 10]]
304.7202 Contract clause.
Insert the clause at 352.204-70, Prevention and Public Health Fund--
Reporting Requirements, in all solicitations and contract actions funded
in whole or in part with PPHF funds, except classified solicitations and
contracts. This includes, but is not limited to, awarding or modifying
orders against existing or new contracts issued under FAR subparts 8.4
and 16.5 that will be funded with PPHF funds. Contracting officers shall
include this clause in any existing contract or order that will be
funded with PPHF funds. This clause is not required for any contract or
order which contains a prior version of the clause at 352.204-70.
[[Page 11]]
SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING
PART 305_PUBLICIZING CONTRACT ACTIONS--Table of Contents
Subpart 305.3_Synopses of Contract Awards
Sec.
305.303 Announcement of contract awards.
Subpart 305.5_Paid Advertisements
305.502 Authority.
Subpart 305.70_Publicizing Requirements Funded From the Affordable Care
Act Prevention and Public Health Fund
305.7001 Scope.
305.7002 Applicability.
305.7003 Publicizing preaward.
305.7004 Publicizing postaward.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 305.3_Synopses of Contract Awards
305.303 Announcement of contract awards.
(a) Public announcement. The contracting officer shall report
awards, not exempt under Federal Acquisition Regulation (FAR) 5.303, to
the Office of the Assistant Secretary for Legislation (Congressional
Liaison Office.)
Subpart 305.5_Paid Advertisements
305.502 Authority.
Written approval at least one level above the contracting officer
shall be obtained prior to placing advertisements or notices in
newspapers.
Subpart 305.70_Publicizing Requirements Funded From the Affordable Care
Act Prevention and Public Health Fund
305.7001 Scope.
Pursuant to appropriations acts, this subpart prescribes
requirements for posting presolicitation and award notices for actions
funded in whole or in part from the Prevention and Public Health Fund
(PPHF). The requirements of this subpart enhance transparency to the
public.
305.7002 Applicability.
This subpart applies to all actions funded in whole or in part by
the PPHF.
305.7003 Publicizing preaward.
Notices of all proposed contract actions, funded in whole or in part
by the PPHF, shall be identified on HHS' Prevention and Public Health
Fund Web site at http://www.hhs.gov/open/prevention/index.html no later
than 1-day after issuance of the solicitation or other request for
proposal or quotation document. When applicable, the notice shall
provide a link to the full text; for example, a link to the FedBizOpps
notice required by FAR 5.201.
305.7004 Publicizing postaward.
Notices of contract actions exceeding $25,000, funded in whole or in
part by the PPHF, shall be identified on HHS' PPHF Web site at http://
www.hhs.gov/open/prevention/index.html no later than 5 days after the
contract action occurs.
PART 306_COMPETITION REQUIREMENTS--Table of Contents
Subpart 306.2_Full and Open Competition After Exclusion of Sources
Sec.
306.202 Establishing or maintaining alternative sources.
Subpart 306.3_Other Than Full and Open Competition
306.302 Circumstances permitting other than full and open competition.
306.302-1 Only one responsible source and no other supplies or services
will satisfy agency requirements.
Subpart 306.5_Competition Advocates
306.501 Requirement.
[[Page 12]]
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 306.2_Full and Open Competition After Exclusion of Sources
306.202 Establishing or maintaining alternative sources.
(a) The Senior Procurement Executive (SPE) shall make the
determination required in Federal Acquisition Regulation (FAR) 6.202(a).
(b)(1) The contracting officer shall prepare the required
determination and findings (D&F), see FAR 6.202(b)(1), based on the data
provided by program personnel. The appropriate Competition Advocate (CA)
(non-delegable) shall sign the D&F, indicating concurrence. The final
determination will be made by the SPE.
Subpart 306.3_Other Than Full and Open Competition
306.302 Circumstances permitting other than full and open competition.
306.302-1 Only one responsible source and no other supplies or
services will satisfy agency requirements. See FAR 6.302-1.
For acquisitions covered by 42 U.S.C. 247d-6a(b)(2)(A), ``available
from only one responsible source'' shall be deemed to mean ``available
from only one responsible source or only from a limited number of
responsible sources''.
Subpart 306.5_Competition Advocates
306.501 Requirement.
The Department Competition Advocate for Health and Human Services is
located in the Division of Acquisition.
PART 307_ACQUISITION PLANNING--Table of Contents
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
307.105 Contents of written acquisition plans.
Federal Acquisition Regulation 7.105 specifies the content
requirements for a written Acquisition Plan (AP). The Department of
Health and Human Services requires a written AP for all acquisitions
above the simplified acquisition threshold.
PART 308_REQUIRED SOURCES OF SUPPLIES AND SERVICES--Table of Contents
Subpart 308.4_Federal Supply Schedules
Sec.
308.405-6 Limited source justification and approval.
Subpart 308.8_Acquisition of Printing and Related Supplies
308.800 Scope of subpart.
308.801 Definitions.
308.802 Policy.
308.803 Solicitation provision and contract clause.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 308.4_Federal Supply Schedules
308.405-6 Limited source justification and approval.
(d)(1) As required by Federal Acquisition Regulation (FAR) 8.405-1
or 8.405-2, the responsible program office must provide a written
justification for an acquisition under the Federal Supply Service
program that restricts the number of schedule contractors or when
procuring an item peculiar to one manufacturer.
Subpart 308.8_Acquisition of Printing and Related Supplies
308.800 Scope of subpart.
This subpart provides the Department of Health and Human Services
(HHS) policy for the acquisition of Government printing and related
supplies. The HHS Office of the Assistant Secretary for Public Affairs
is responsible for the review and clearance of print and electronic
publications,
[[Page 13]]
printing and related supplies, audiovisual products, and communication
service contracts. See FAR 8.802 for exceptions.
308.801 Definitions.
The terms ``printing'' and ``duplicating/copying'' are defined in
the Government Printing and Binding Regulations of the Joint Committee
on Printing. The regulations are available at http://www.gpo.gov.
308.802 Policy.
In accordance with FAR 8.802(b), the Central Printing and
Publications Management Organization at Program Support Center is the
HHS designated central printing authority.
308.803 Solicitation provision and contract clause.
The contracting officer shall insert the clause at 352.208-70,
Printing and Duplication, in all solicitations, contracts, and orders
over the simplified acquisition threshold, unless printing or increased
duplication is authorized by statute.
PART 309_CONTRACTOR QUALIFICATIONS--Table of Contents
Subpart 309.4_Debarment, Suspension, and Ineligibility
Sec.
309.403 Definitions.
309.404 System for Award Management (SAM) exclusions.
309.405 Effect of listing (compelling reason determinations).
309.406 Debarment.
309.406-3 Procedures.
309.407 Suspension.
309.407-3 Procedures.
309.470 Reporting of suspected causes for debarment or suspension or the
taking of evasive actions.
309.470-1 Situations where reports are required.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 309.4_Debarment, Suspension, and Ineligibility
309.403 Definitions.
The following definition applies to this subpart:
The HHS Suspension and Debarment Official is the Deputy Assistant
Secretary (DAS) for the Office of Grants and Acquisition Policy and
Accountability (OGAPA).
309.404 System for Award Management (SAM) exclusions.
(c) For actions made by HHS pursuant to FAR 9.406 and 9.407, the
Office of Recipient Integrity Coordination shall perform the actions
required by FAR 9.404(c).
309.405 Effect of listing (compelling reason determinations).
(a) The head of the contracting activity (HCA) (non-delegable) may,
with the written concurrence of the Suspension and Debarment 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,
and
(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 Suspension and Debarment Official
and, if given, shall inform the contracting officer in writing of the
determination within the required time period.
[[Page 14]]
309.406 Debarment.
309.406-3 Procedures.
Refer all matters appropriate for consideration by an agency
Suspension and Debarment Official as soon as practicable to the
appropriate Suspension and Debarment Official identified in 309.403. Any
person may refer a matter to the Suspension and Debarment Official.
309.407 Suspension.
309.407-3 Procedures.
Refer all matters appropriate for consideration by an agency
Suspension and Debarment Official as soon as practicable to the
appropriate Suspension and Debarment Official identified in 309.403. Any
person may refer a matter to the Suspension and Debarment Official.
309.470 Reporting of suspected causes for debarment or suspension or
the taking of evasive actions.
309.470-1 Situations where reports are required.
The contracting officer shall report to the HCA and the Associate
Deputy Assistant Secretary--Acquisition whenever the contracting
officer--
(a) Knows or suspects that a contractor is committing or has
committed any of the acts described in FAR 9.406-2 or 9.407-2; or
(b) Suspects a contractor is attempting to evade the prohibitions of
debarment or suspension imposed under FAR 9.405, or any other comparable
regulation, by changes of address, multiple addresses, formation of new
companies, or by other devices.
PART 310_MARKET RESEARCH--Table of Contents
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
310.001 Policy.
Market research shall be conducted as prescribed in Federal
Acquisition Regulation part 10.
PART 311_DESCRIBING AGENCY NEEDS--Table of Contents
Subpart 311.70_Section 508 Accessibility Standards
Sec.
311.7000 Defining electronic information technology requirements.
Subpart 311.71_Public Accommodations and Commercial Facilities
311.7100 Policy.
311.7101 Responsibilities.
311.7102 Contract clause.
Subpart 311.72_Conference Funding and Sponsorship
311.7200 Policy.
311.7201 Funding and sponsorship.
311.7202 Contract clause.
Subpart 311.73_Contractor Collection of Information
311.7300 Policy.
311.7301 Contract clause.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 311.70_Section 508 Accessibility Standards
311.7000 Defining electronic and information technology requirements.
The contracting officer shall ensure that requiring activities
specify agency needs for electronic and information technology (EIT)
supplies and services, and document market research, document EIT
requirements, and identify the applicable Section 508 accessibility
standards. See FAR 11.002(f) and HHSAR subpart 339.2.
Subpart 311.71_Public Accommodations and Commercial Facilities.
311.7100 Policy.
(a) It is HHS policy that all contractors comply with current and
any future changes to 28 CFR part 36--Nondiscrimination on the Basis of
Disability by Public Accommodations and in Commercial Facilities. For
the purpose of this policy, accessibility is defined as both physical
access to public
[[Page 15]]
accommodations and commercial facilities, and access to aids and
services enabling individuals with sensory disabilities to fully
participate in events in public accommodations and commercial
facilities.
(b) This policy applies to all contracts requiring contractors to
conduct events in public accommodations and commercial facilities open
to the public or involving HHS personnel, but not ad hoc meetings
necessary or incidental to contract performance.
311.7101 Responsibilities.
The contractor shall submit a plan assuring that any event held will
meet or exceed the minimum accessibility standards set forth in 28 CFR
part 36. A consolidated or master plan for contracts requiring numerous
events in public accommodations and commercial facilities is acceptable.
311.7102 Contract clause.
The contracting officer shall insert the clause at 352.211-1, Public
Accommodations and Commercial Facilities, in solicitations, contracts,
and orders requiring the contractor to conduct events in accordance with
311.7100(b).
Subpart 311.72_Conference Funding and Sponsorship
311.7200 Policy.
HHS policy requires that all conferences the agency funds or
sponsors shall: be consistent with HHS missions, objectives, and
policies; represent an efficient and effective use of taxpayer funds;
and withstand public scrutiny.
311.7201 Funding and sponsorship.
Funding a conference through a HHS contract does not automatically
imply HHS sponsorship, unless the conference is funded entirely by the
agency. Also, HHS staff attendance or participation at a conference does
not imply HHS conference sponsorship. Accordingly, for non-conference
contracts funded entirely by HHS prior to a contractor claiming HHS
sponsorship, the contractor must provide the contracting officer a
written request for permission to designate HHS the conference sponsor.
The OPDIV or STAFFDIV (operating division or staff division) head, or
designee, shall approve such requests. The determination on what
constitutes a ``conference contract'' or a ``non-conference contract''
shall be made by the contracting officer.
311.7202 Contract clause.
To ensure that a contractor:
(a) Properly requests approval to designate HHS the conference
sponsor, where HHS is not the sole provider of conference funding; and
(b) Includes an appropriate Federal funding disclosure and content
disclaimer statement for conference materials, the contracting officer
shall include the clause at 352.211-2, Conference Sponsorship Request
and Conference Materials Disclaimer, in solicitations, contracts, and
orders providing funding which partially or fully supports a conference.
Subpart 311.73_Contractor Collection of Information
311.7300 Policy.
In accordance with the Paperwork Reduction Act (PRA), contractors
shall not proceed with collecting information from surveys,
questionnaires, or interviews until the COR obtains an Office of
Management and Budget clearance and the contracting officer issues
written approval to proceed. For any contract involving a requirement to
collect or record information calling either for answers to identical
questions from 10 or more persons other than Federal employees, or
information from Federal employees which is outside the scope of their
employment, for use by the Federal Government or disclosure to third
parties, the contracting officer must comply with the PRA of 1995 (44
U.S.C. 3501 et seq.).
311.7301 Contract clause.
The contracting officer shall insert the clause at 352.211-3,
Paperwork Reduction Act, in solicitations, contracts, and orders that
require a contractor to collect the same information from 10 or more
persons.
[[Page 16]]
PART 312_ACQUISITION OF COMMERCIAL ITEMS--Table of Contents
Subpart 312.1_Acquisition of Commercial Items_General
Sec.
312.101 Policy.
Subpart 312.2_Special Requirements for the Acquisition of Commercial
Items
312.202(d) Market research and description of agency need.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 312.1_Acquisition of Commercial Items_General
312.101 Policy.
Contracting offices shall use the HHS Smarter Buying Program to the
maximum extent practicable. See HHS Acquisition Regulation part 307,
Acquisition Planning.
Subpart 312.2_Special Requirements for the Acquisition of Commercial
Items
312.202(d) Market research and description of agency need.
Whenever a requiring activity specifies electronic and information
technology (EIT) supplies and services subject to Section 508 of the
Rehabilitation Act of 1973, as amended, the requiring activity shall
acquire commercially available supplies and services to the maximum
extent possible while ensuring Section 508 compliance. See part 339.
[[Page 17]]
SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES
PART 313_SIMPLIFIED ACQUISITION PROCEDURES--Table of Contents
Sec.
313.003 Policy.
Subpart 313.3_Simplified Acquisition Methods
313.301 Government-wide commercial purchase card.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
313.003 Policy.
Electronic and information technology (EIT) supplies and services
acquired pursuant to Federal Acquisition Regulation part 13 shall comply
with Section 508 of the Rehabilitation Act of 1973, as amended. See part
339.
Subpart 313.3_Simplified Acquisition Methods
313.301 Government-wide commercial purchase card.
(b) Make all HHS transactions utilizing the government-wide
commercial purchase card in accordance with the HHS Purchase Card
Program.
PART 314_SEALED BIDDING--Table of Contents
Subpart 314.1_Use of Sealed Bidding
Sec.
314.103 Policy.
Subpart 314.4_Opening of Bids and Award of Contract
314.404 Rejection of bids.
314.404-1 Cancellation of invitations after opening.
314.407 Mistakes in bids.
314.407-3 Other mistakes disclosed before award.
314.407-4 Mistakes after award.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 314.1_Use of Sealed Bidding
314.103 Policy.
Electronic and information technology (EIT) supplies and services
acquired using sealed-bid procedures shall comply with Section 508 of
the Rehabilitation Act of 1973, as amended. See part 339.
Subpart 314.4_Opening of Bids and Award of Contract
314.404 Rejection of bids.
314.404-1 Cancellation of invitations after opening.
(c) The head of the contracting activity (HCA) shall make the
determinations specified in FAR 14.404-1(c).
314.407 Mistakes in bids.
314.407-3 Other mistakes disclosed before award.
(e) The HCA has the authority to make determinations under
paragraphs (a), (b), (c), and (d) of FAR 14.407-3.
314.407-4 Mistakes after award.
(c) The HCA has the authority to make administrative determinations
in connection with alleged post-award mistakes.
PART 315_CONTRACTING BY NEGOTIATION--Table of Contents
Subpart 315.2_Solicitation and Receipt of Proposals and Information
Sec.
315.204-5 Part IV--Representations and instructions.
315.208 Submission, modification, revision, and withdrawal of proposals.
Subpart 315.3_Source Selection
315.303-70 Policy.
315.304 Evaluation factors and significant subfactors.
315.305 Proposal evaluation.
[[Page 18]]
Subpart 315.4_Contract Pricing
315.404 Proposal analysis.
315.404-2 Information to support proposal analysis.
Subpart 315.6_Unsolicited Proposals
315.605 Content of unsolicited proposals.
315.606 Agency procedures.
315.606-1 Receipt and initial review.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 315.2_Solicitation and Receipt of Proposals and Information
315.204-5 Part IV--Representations and instructions.
(c) Section M, Evaluation factors for award. (1) The requiring
activity 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
requiring activity shall indicate the relative importance or weight of
the evaluation factors based on the requirements of an individual
acquisition.
(2) Only a formal amendment to a solicitation can change the
evaluation factors.
315.208 Submission, modification, revision, and withdrawal of proposals.
(b) In addition to the provision in Federal Acquisition Regulation
(FAR) 52.215-1, Instructions to Offerors--Competitive Acquisition, if
the head of the contracting activity (HCA) determines that biomedical or
behavioral research and development (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, the provision at
352.215-70, Late Proposals and Revisions. This is an authorized FAR
deviation.
(2) When the provision at 352.215-70 is included in the solicitation
and if the HCA intends to consider a proposal or proposals received
after the exact time specified for receipt, the contracting officer,
with the assistance of cost or technical personnel as appropriate, shall
determine in writing that the proposal(s) meets the requirements of the
provision at 352.215-70.
Subpart 315.3_Source Selection
315.303-70 Policy.
(a) If an operating division (OPDIV) is required by statute to use
peer review for technical review of proposals, the requirements of those
statutes, any implementing regulatory requirements, the Federal Advisory
Committee Act, and as applicable, any approved Department of Health and
Human Services Acquisition Regulation (HHSAR) deviation(s) from this
subpart take precedence over the otherwise applicable requirements of
this subpart.
(b) The statutes that require such review and implementing
regulations are as follows: National Institutes of Health--42 U.S.C.
289a, Peer Review Requirements and 42 CFR part 52h, Scientific Peer
Review of Research Grant Applications and Research and Development
Contract Projects; Substance Abuse and Mental Health Services
Administration--42 U.S.C. 290aa-3, Peer Review and Agency for Healthcare
Research and Quality--42 U.S.C. 299c-1, Peer review with respect to
grants and contracts.
315.304 Evaluation factors and significant subfactors.
When acquiring electronic and information technology supplies and
services (EIT) using negotiated procedures, contracting officers shall
comply with Section 508 of the Rehabilitation Act of 1973, as amended.
315.305 Proposal evaluation.
(c) Use of non-Federal evaluators. (1) Except when peer review is
required by statute as provided in 315.303-70(a), decisions to disclose
proposals to non-Federal evaluators shall be made by the official
responsible for appointing Source Selection Evaluation Team members in
accordance with OPDIV procedures. The avoidance of organizational and
personal conflicts of interest must be taken into consideration when
making the decision to use non-Federal evaluators.
[[Page 19]]
(2) When a solicited proposal will be disclosed outside the
Government to a contractor or a contractor employee for evaluation
purposes, the following or similar conditions shall be part of the
written agreement with the contractor prior to disclosure:
CONDITIONS FOR EVALUATING PROPOSALS
The contractor agrees that it and its employees, as well as any
subcontractors and their employees (in these conditions, ``evaluator'')
will 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 offeror 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. The
evaluator shall not contact the offeror concerning any aspects of a
proposal's contents.
Subpart 315.4_Contract Pricing
315.404 Proposal analysis.
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 from the cognizant audit agency, or by other means including
data obtained through market research (See FAR part 10 and HHSAR part
310) 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 field pricing support
by documenting the file to indicate what information will be used. When
field-pricing support is required, contracting officers shall make the
request through the HCA.
Subpart 315.6_Unsolicited Proposals
315.605 Content of unsolicited proposals.
(d) Warranty 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 prospective offeror of an
unsolicited proposal must include the following warranty in any
unsolicited proposal. Contracting officers receiving an unsolicited
proposal without this warranty shall not process the proposal until the
offeror is notified of the missing language and given an opportunity to
submit a proper warranty. If no warranty is provided in a reasonable
time, the contracting officer shall reject the unsolicited proposal,
notify the offeror of the rejection, and document the actions in the
file.
UNSOLICITED PROPOSAL
WARRANTY BY OFFEROR
This is to warrant 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 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 warranty shall be signed by a responsible management official
of the proposing organization who is a person authorized to
contractually obligate the organization.)
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
[[Page 20]]
receipt and processing of unsolicited proposals.
315.606-1 Receipt and initial review.
(d) OPDIVs may consider an unsolicited proposal even though 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.
PART 316_TYPES OF CONTRACTS--Table of Contents
Subpart 316.3_Cost-Reimbursement Contracts
Sec.
316.307 Contract clauses.
Subpart 316.5_Indefinite-Delivery Contracts
316.505 Ordering.
Subpart 316.6_Time-and-Materials, Labor-Hour, and Letter Contracts
316.603 Letter contracts.
316.603-3 Limitations.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 316.3_Cost-Reimbursement Contracts
316.307 Contract clauses.
(a)(1) If a contract for research and development 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 ``Federal Acquisition Regulation (FAR) subpart
31.2'' and substituting ``45 CFR part 75.''
(2) The contracting officer shall also insert the clause at 352.216-
70, Additional Cost Principles for Hospitals (Profit or Non-Profit), in
solicitations and contracts with a hospital (profit or non-profit) when
a cost-reimbursement contract is contemplated.
Subpart 316.5_Indefinite-Delivery Contracts
316.505 Ordering.
(b)(8) The Department of Health and Human Services (HHS) Competition
Advocate is the task-order and delivery-order ombudsman for the
department. Ombudsmen for each of the HHS contracting activities shall
be designated in writing by the head of the contracting activity. See
part 306.
Subpart 316.6_Time-and-Materials, Labor-Hour, and Letter Contracts
316.603 Letter contracts.
316.603-3 Limitations.
An official one level above the contracting officer shall make the
written determination, to be included in the contract file, that no
other contract type is suitable and to approve all letter contract
modifications. No letter contract or modification can exceed the limits
prescribed in FAR 16.603-2(c).
PART 317_SPECIAL CONTRACTING METHODS--Table of Contents
Subpart 317.1_Multi-Year Contracting
Sec.
317.104 General.
317.105 Policy.
317.105-1 Uses.
317.107 Options.
317.108 Congressional notification.
Subpart 317.2_Options
317.204 Contracts.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 317.1_Multi-Year Contracting
317.104 General.
(b) The Senior Procurement Executive (SPE) is the agency approving
official for determinations under Federal Acquisition Regulation (FAR)
17.104(b).
[[Page 21]]
317.105 Policy.
317.105-1 Uses.
(a) Each head of the contracting activity (HCA) determination to use
multi-year contracting, as defined in FAR 17.103, is limited to
individual acquisitions where the full estimated cancellation ceiling
does not exceed 20 percent of the total contract value over the multi-
year term or $12.5 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).
(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 well-documented justification
for the estimated cancellation ceiling. When the estimated cancellation
ceiling exceeds $12.5 million, the determination shall accompany a draft
congressional notification letter pursuant to FAR 17.108 and 317.108.
317.107 Options.
When included as part of a multi-year contract, use of options shall
not extend the performance of the original requirement beyond 5 years.
Options may serve as a means to acquire related services (severable or
non-severable) and, upon their exercise, shall receive funding from the
then-current fiscal year's appropriation.
317.108 Congressional notification.
(a) The SPE shall give the approval of the written notification
required by FAR 17.108(a). Upon approval of the determination required
by 317.105-1(b)(1), the HCA will finalize and sign the congressional
notification letter and provide it to the appropriate House and Senate
committees.
Subpart 317.2_Options
317.204 Contracts.
(e)(1) Information technology contracts. Notwithstanding FAR
17.204(e), the 5-year limitations apply also to information technology
contracts unless a longer period is authorized by statute.
(2) Requests to exceed 5-year limitation. A request to exceed the 5-
year limitation specified in FAR 17.204(e) must follow guidance in FAR
Part 1.7.
(3) Approval authority. All requests to exceed the 5-year
limitations specified in FAR 17.204(e) must be supported with a
Determination and Finding and approved by:
(i) The HCA; and
(ii) The HHS SPE.
[[Page 22]]
SUBCHAPTER D_SOCIOECONOMIC PROGRAMS
PART 319_SMALL BUSINESS PROGRAMS--Table of Contents
Subpart 319.2_Policies
Sec.
319.201 General policy.
319.270-1 Mentor Prot[eacute]g[eacute] Program Solicitation provision
and contract clause.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 319.2_Policies
319.201 General policy.
(d) The functional management responsibilities for the Department of
Health and Human Services' (HHS) small business program are delegated to
the Office of Small and Disadvantaged Business Utilization (OSDBU)
Director.
(e)(1) The HHS OSDBU Director shall exercise full management
authority over the small business program. The small business specialist
(SBS) shall review and make recommendations for all acquisitions, unless
exempted by statute, that are not being set aside for small business in
accordance with Federal Acquisition Regulation (FAR) 19.502. The review
must take place prior to issuing the solicitation.
(2) Within the Indian Health Service (IHS), the primary SBSs are
responsible for IHS' overall implementation of the HHS small business
program; however, each IHS contracting office will assign a small
business technical advisor (SBTA) to perform those functions and
responsibilities necessary to implement the small business program. The
primary IHS SBS shall assist and provide guidance to respective SBTAs.
319.270-1 Mentor Prot[eacute]g[eacute] Program Solicitation provision
and contract clause.
(a) The contacting officer shall insert the provision at 352.219-70,
Mentor-Prot[eacute]g[eacute] Program, in solicitations that include the
clause at FAR 52.219-9, Small Business Subcontracting Plan. The
provision requires offerors to provide the contracting officer a copy of
their HHS Office of OSDBU-approved mentor-prot[eacute]g[eacute]
agreement in response to a solicitation.
(b) The contacting officer shall insert the clause at 352.219-71,
Mentor-Prot[eacute]g[eacute] Program Reporting Requirements, in
contracts that include the clause at 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.
PART 322_APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS-
-Table of Contents
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 322.8_Equal Employment Opportunity
322.810 Solicitation provisions and contract clauses.
(h) The contracting officer shall insert the clause at 352.222-70,
Contractor Cooperation in Equal Employment Opportunity Investigations,
in solicitations, contracts, and orders that include the clause at FAR
52.222-26, Equal Opportunity.
PART 323_ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE-
-Table of Contents
Subpart 323.70_Safety and Health
Sec.
323.7000 Scope of subpart.
323.7001 Policy.
323.7002 Actions required.
Subpart 323.71_Sustainable Acquisition Requirements
323.7100 Policy.
323.7101 Applicability.
323.7102 Procedures.
323.7103 Solicitation Provision.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
[[Page 23]]
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
323.7000 Scope of subpart.
This subpart provides procedures for administering safety and health
requirements.
323.7001 Policy.
The contracting officer shall follow the guidance in this subpart
when additional requirements for safety and health are necessary for an
acquisition.
323.7002 Actions required.
Contracting activities. The contracting officer shall insert the
clause at 352.223-70, Safety and Health, or a clause substantially the
same, in solicitations and contracts that involve hazardous materials or
hazardous operations for the following types of requirements:
(a) Services or products.
(b) Research, development, or test projects.
(c) Transportation of hazardous materials.
(d) Construction, including construction of facilities on the
contractor's premises.
Subpart 323.71_Sustainable Acquisition Requirements
323.7100 Policy.
This subpart provides procedures for sustainable acquisitions and
use of the following: Designated recycled content; energy efficient,
environmentally preferred, Electronic Product Environmental Assessment
Tool (EPEAT)-registered, bio-based, water efficient, non-ozone depleting
products and services; and alternate fuel vehicles and fuels. The
Department of Health and Human Services (HHS) has designated product and
service codes for supplies and services having sustainable acquisition
attributes. See FAR part 23.
323.7101 Applicability.
It is HHS policy to include a solicitation provision and to include
an evaluation factor for an offeror's Sustainable Action Plan when
acquiring sustainable products and services. This applies only to new
contracts and orders above the micro-purchase threshold. Such contracts
and orders include, but are not limited to: Office supplies;
construction, renovation or repair; building operations and maintenance;
landscaping services; pest management; electronic equipment, including
leasing; fleet maintenance; janitorial services; laundry services;
cafeteria operations; and meetings and conference services. If using a
product or service code designated for supplies or services having
sustainable acquisition attributes but a review of the requirement
determines that no opportunity exists to acquire sustainable acquisition
supplies or services, document the determination in the contract file
and make note in the solicitation.
323.7102 Procedures.
(a) When required by the solicitation, offerors or quoters must
include a Sustainable Acquisition Plan in their technical proposal
addressing the environmental products and services for delivery under
the resulting contract.
(b) The contracting officer shall incorporate the final Sustainable
Acquisition Plan into the contract.
(c) The contracting officer shall ensure that sustainability is
included as an evaluation factor in all applicable new contracts and
orders when the acquisition utilizes a product or service code
designated by HHS for supplies or services having sustainable
acquisition attributes.
323.7103 Solicitation Provision.
The contracting officer shall insert the provision at 352.223-71,
Instruction to Offerors--Sustainable Acquisition, in solicitations above
the micro-purchase threshold when the acquisition utilizes a product or
service code designated by HHS as having sustainable acquisition
attributes.
PART 324_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION-
-Table of Contents
Subpart 324.1_Protection of Individual Privacy
Sec.
324.103 Procedures for the Privacy Act.
324.104 Restrictions on Contractor Access to Government or Third Party
Information.
[[Page 24]]
324.105 Contract clauses.
Subpart 324.70_Health Insurance Portability and Accountability Act of
1996 (HIPAA)
324.7000 Scope of subpart.
324.7001 Policy on Compliance with HIPAA Business Associate Contract
Requirements.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 324.1_Protection of Individual Privacy
324.103 Procedures for the Privacy Act.
(a) The contracting officer shall review all acquisition request
documentation to determine whether the requirements of the Privacy Act
of 1974 (5 U.S.C. 552a) are applicable. The Privacy Act requirements
apply when a contract or order requires 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 Federal
Acquisition Regulation (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) The contracting officer shall ensure that the statement of work
or performance work statement (SOW or PWS) specifies the system(s) of
records or proposed system(s) of records to which the Privacy Act and
the implementing regulations are applicable or may be applicable. 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 ensure that the contract SOW or
PWS specifies for both the Privacy Act and the Federal Records Act the
disposition to be made of the system(s) of records upon completion of
contract performance. The contract SOW or 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
requiring activity prior to award shall prepare and have published in
the Federal Register a ``system notice,'' describing the Department of
Health and Human Services' (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 requiring
activity 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 requiring activity for inclusion in the
contract file. If a notice for the system of records 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.
324.104 Restrictions on Contractor Access to Government or Third
Party Information.
The contracting officer shall establish the restrictions that govern
the contractor employees' access to Government or third party
information in order to protect the information from unauthorized use or
disclosure.
324.105 Contract clauses.
(a) The contracting officer shall insert the clause at 352.224-70,
Privacy Act, in solicitations, contracts, and orders that require the
design, development, or operation of a system of records 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
[[Page 25]]
extent as HHS employees. The clause also requires the contractor to
ensure each of its employees knows the prescribed rules of conduct in 45
CFR part 5b and each contractor employee is aware that he or 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.
(b) The contracting officer shall insert the clause at 352.224-71,
Confidential Information, in solicitations, contracts, and orders that
require access to Government or to third party information.
Subpart 324.70_Health Insurance Portability and Accountability Act of
1996
324.7000 Scope of subpart.
All individually identifiable health information that is Protected
Health Information (PHI), as defined in 45 CFR 160.103 shall be
administered in accordance with the Health Insurance Portability and
Accountability Act of 1996 (HIPAA) implementing regulations at 45 CFR
parts 160 and 164 (the HIPAA Privacy, Security, and Breach Notification
Rules). The term ``HIPAA'' is used in this part to refer to title II,
subtitle F of the HIPAA statute, at part C of title XI of the Social
Security Act, 42 U.S.C. 1320d et seq., section 264 of HIPAA, subtitle D
of title XIII of the American Recovery and Reinvestment Act of 2009, and
regulations under such provisions.
324.7001 Policy on Compliance with HIPAA business associate contract
requirements.
(a) HHS is a HIPAA ``covered entity'' that is a ``hybrid entity'' as
these terms are defined at sections 160.103 and 164.103 respectively. As
such, only the portions of HHS that the Secretary has designated as
``health care components'' (HCC) as defined at section 164.103, are
subject to HIPAA. HHS' HCCs may utilize persons or entities known as
``business associates,'' as defined at section 160.103. Generally,
``business associate'' means a ``person'' as defined by section 160.103
(including contractors, and third-party vendors, etc.) if or when the
person or entity:
(1) Creates, receives, maintains, or transmits ``protected health
information'', as the term is defined at section 160.103, on behalf of
an HHS HCC to carry out HHS HIPAA ``covered functions'' as that term is
defined at 164.103; or
(2) Provides certain services to an HHS HCC that involve PHI.
(b) Where the Department as a covered entity is required by 45 CFR
164.502(e)(1) and 164.504(e) and, if applicable, sections 164.308(b)(3)
and 164.314(a), to enter into a HIPAA business associate contract, the
relevant HCC contracting officer, acting on behalf of the Department,
shall ensure that such contract meets the requirements at section
164.504(e)(2) and, if applicable, section 164.314(a)(2).
PART 326_OTHER SOCIOECONOMIC PROGRAMS--Table of Contents
Subpart 326.5_Indian Preference in Employment, Training, and
Subcontracting Opportunities
Sec.
326.501 Statutory requirements.
326.502 Definitions.
326.503 Compliance enforcement.
326.504 Tribal Preference requirement.
326.505 Applicability.
Subpart 326.6_Acquisitions Under the Buy Indian Act
326.600 Scope of subpart.
326.601 Policy.
326.602 Definitions.
326.603 Requirements.
326.604 Competition.
326.605 Responsibility determinations.
Subpart 326.7_Acquisitions Requiring the Native American Graves
Protection and Repatriation Act
326.700 Scope of subpart.
326.701 Applicability.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
[[Page 26]]
Subpart 326.5_Indian Preference in Employment, Training, and
Subcontracting Opportunities
326.501 Statutory requirements.
Any contract or subcontract pursuant to subchapter II, chapter 14,
title 25 of the United States Code, the Act of April 16, 1934 (48 Stat.
596), as amended, or any other Act authorizing Federal contracts with or
grants to Indian organizations or for the benefit of Indians, shall, to
the greatest extent feasible, comply with section 7(b) of the Indian
Self-Determination and Education Assistance Act, Public Law 93-638, 88
Stat. 2205, 25 U.S.C. 450e(b) which provides preferences and
opportunities for training and employment in connection with the
administration of such contracts, and preference in the award of
subcontracts in connection with the administration of such contracts to
Indian organizations and to Indian-owned economic enterprises as defined
in section 1452 of title 25, United States Code.
326.502 Definitions.
For purposes of this subpart, the following definitions shall apply:
(a) Indian means a person who is a member of an Indian tribe. If the
contractor has reason to doubt that a person seeking employment
preference is an Indian, the contractor shall grant the preference but
shall require the individual provide evidence within 30 days from the
tribe concerned that the person is a member of the tribe.
(b) Indian tribe means an Indian tribe, pueblo, band, nation, or
other organized group or community, including any Alaska Native Village
or regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act (85 Stat. 688, 43 U.S.C.
1601), which the United States recognizes as eligible for special
programs and services because of its status as Indian.
(c) Indian organization means the governing body of any Indian
tribe, or entity established or recognized by such governing body, in
accordance with the Indian Financing Act of 1974 (88 Stat. 77, 25 U.S.C.
1451).
(d) Indian-owned economic enterprise means any Indian-owned
commercial, industrial, or business activity established or organized
for the purpose of profit, provided that such Indian ownership shall
constitute not less than 51 percent of the enterprise, and the ownership
shall encompass active operation and control of the enterprise.
(e) Indian reservation includes Indian reservations, public domain
Indian allotments, former Indian reservations in Oklahoma, and land held
by incorporated Native groups, regional corporations, and village
corporations under the provisions of the Alaska Native Claims Settlement
Act (85 Stat. 688, 43 U.S.C. 1601 et seq.).
(f) On or near an Indian reservation means on a reservation or
reservations or within that area surrounding an Indian reservation(s)
where a person seeking employment could reasonably commute to and from
in the course of a work day.
326.503 Compliance enforcement.
The contracting officer shall promptly investigate and resolve
written complaints of noncompliance with the requirements of the clauses
at 352.226-1, Indian Preference and 352.226-2, Indian Preference Program
filed with the contracting activity.
326.504 Tribal preference requirements.
(a) When the contractor will perform work under a contract on an
Indian reservation, the contracting officer may supplement the clause at
352.226-2, Indian Preference Program by adding specific Indian
preference requirements of the tribe on whose reservation the contractor
will work. The contracting activity and the tribe shall jointly develop
supplemental requirements for the contract. Supplemental preference
requirements shall represent a further implementation of the
requirements of section 7(b) of Public Law 93-638 and require the
approval of the affected program director and the appropriate legal
office, or a regional attorney, before the contracting officer adds them
to a solicitation and resultant contract. Any supplemental preference
requirements the contracting officer adds to the clause at 352.226-2,
Indian Preference Program shall also clearly
[[Page 27]]
identify in the solicitation the additional requirements.
(b) Nothing in this part shall preclude tribes from independently
developing and enforcing their own tribal preference requirements. Such
independently-developed tribal preference requirements shall not, except
as provided in paragraph (a) of this section, become a requirement in
contracts covered under this subpart, and shall not conflict with any
Federal statutory or regulatory requirement concerning the award and
administration of contracts.
326.505 Applicability.
The contracting officer shall insert the clause at 352.226-1, Indian
Preference, and the clause at 352.226-2, Indian Preference Program, in
contracts to implement section 7(b) of Public Law 93-638 for all
Department of Health and Human Services (HHS) activities. Contracting
activities shall use the clauses as follows, except for those exempted
solicitations and contracts issued and or awarded pursuant to Title I of
Public Law 93-638 (25 U.S.C. 450 et seq.):
(a) The contracting officer shall insert the clause at 352.226-1,
Indian Preference, in solicitations, contracts, and orders when--
(1) The award is (or will be) pursuant to an act specifically
authorizing such awards with Indian organizations; or
(2) The work is specifically for the benefit of Indians and is in
addition to any incidental benefits which might otherwise accrue to the
general public.
(b) The contracting officer shall insert the clause at 352.226-2,
Indian Preference Program, in solicitations, contracts, and orders
when--
(1) The dollar amount of the acquisition is expected to equal or
exceed $650,000 for non-construction work or $1.5 million for
construction work;
(2) The solicitation, contract, or order includes the Indian
Preference clause; and
(3) The contracting officer makes the determination, prior to
solicitation, that performance will take place in whole or in
substantial part on or near an Indian reservation(s). In addition, the
contracting officer may insert the Indian Preference Program clause in
solicitations, contracts, and orders below the $650,000 or $1.5 million
level for non-construction or construction contracts, respectively, but
which meet the requirements of paragraphs (b)(2) and (3) of this
section, and in the opinion of the contracting officer, offer
substantial opportunities for Indian employment, training, and
subcontracting.
Subpart 326.6_Acquisitions Under the Buy Indian Act
326.600 Scope of subpart.
This subpart sets forth the policy on preferential acquisition from
Indians under the negotiation authority of the Buy Indian Act. This
subpart applies only to acquisitions made by or on behalf of Indian
Health Service (IHS).
326.601 Policy.
(a) IHS shall utilize the negotiation authority of the Buy Indian
Act to give preference to Indians whenever authorized and practicable.
The Buy Indian Act, 25 U.S.C. 47, prescribes the application of the
advertising requirements of 41 U.S.C. 6101 to the acquisition of Indian
supplies. As specified in 25 U.S.C. 47, the Buy Indian Act provides
that, so far as practicable, the Government shall employ Indian labor
and, at the discretion of the Secretary of the Interior, purchase
products of Indian industry (including, but not limited to printing,
notwithstanding any other law) from the open market.
(b) Due to the transfer of authority from the Department of the
Interior to HHS, the Secretary of HHS may use the Buy Indian Act to
acquire products of Indian industry in connection with the maintenance
and operation of Indian hospital and health facilities, and for the
overall conservation of Indian health. This authority is exclusively
delegated to IHS and is not available for use by any other HHS component
(unless that component makes an acquisition on behalf of IHS). However,
the Buy Indian Act itself does not exempt IHS from meeting the
statutorily mandated small business goals.
(c) Subsequent legislation, particularly Public Law 94-437 and
Public Law 96-537, emphasize using the Buy Indian Act negotiation
authority.
[[Page 28]]
326.602 Definitions.
(a) Buy Indian contract means any contract involving activities
covered by the Buy Indian Act and negotiated under the provisions of 41
U.S.C. 3104 and 25 U.S.C. 47 between an Indian firm and a contracting
officer representing IHS.
(b) Indian means a member of any tribe, pueblo, band, group,
village, or community recognized by the Secretary of the Interior as
being Indian or any individual or group of individuals recognized by the
Secretary of the Interior or the Secretary of HHS. The Secretary of HHS
in making determinations may take into account the determination of the
tribe with which affiliation is claimed.
(c) Indian firm means a sole enterprise, partnership, corporation,
or other type of business organization owned, controlled, and operated
by:
(1) One or more Indians (including, for the purpose of sections 301
and 302 of Public Law 94-437, former or currently federally recognized
Indian tribes in the State of New York); or
(2) By an Indian firm (as defined in paragraph (1) of this
definition); or
(3) A nonprofit firm organized for the benefit of Indians and
controlled by Indians (see 326.601(a)).
(d) Product of Indian industry means anything produced by Indians
through either physical labor or intellectual effort involving the use
and application of their skills. To classify as a product of Indian
industry, the total cost of the item's production must equal or exceed
51 percent Indian effort.
326.603 Requirements.
(a) Indian ownership. Indian ownership shall constitute at least 51
percent of an Indian firm during the period covered by a Buy Indian
contract.
(b) Joint ventures. An Indian firm may enter into a joint venture
with other entities for specific projects as long as the Indian firm is
the managing partner. However, the contracting officer shall approve the
joint venture prior to the award of a contract under the Buy Indian Act.
(c) Bonds. In the case of contracts for the construction,
alteration, or repair of public buildings or public works, the Miller
Act (40 U.S.C. 3131 et seq.) and Federal Acquisition Regulation (FAR)
part 28 require performance and payment bonds. Bonds are not required in
the case of contracts with Indian tribes or public nonprofit
organizations serving as governmental instrumentalities of an Indian
tribe. However, bonds are required when dealing with private business
entities owned by an Indian tribe or members of an Indian tribe. The
contracting officer may require bonds of private business entities that
are joint ventures with, or subcontractors of, an Indian tribe or a
public nonprofit organization serving as a governmental instrumentality
of an Indian tribe. A bid guarantee or bid bond is required only when a
performance or payment bond is required.
(d) Indian preference in employment, training and subcontracting.
Contracts awarded under the Buy Indian Act are subject to the
requirements of section 7(b) of the Indian Self-Determination and
Education Assistance Act 25 U.S.C. 450e, which requires giving
preference to Indians in employment, training, and subcontracting. The
contracting officer shall include the Indian Preference clause specified
at 326.505(a) in all Buy Indian solicitations and resultant contracts.
The contracting officer shall use the Indian Preference Program clause
specified at 326.505(b). The contracting officer shall follow all
requirements specified in subpart 326.2 which apply to a Buy Indian
acquisition (e.g., 326.604 and 326.605).
(e) Subcontracting. A contractor shall not subcontract more than 50
percent of the work under a prime contract awarded pursuant to the Buy
Indian Act to non-Indian firms. For this purpose, contract work does not
include the provision of materials, supplies, or equipment.
(f) Wage rates. The contracting officer shall include a
determination of the minimum wage rates by the Secretary of Labor as
required by the Davis-Bacon Act (40 U.S.C. 276a) in all contracts
awarded under the Buy Indian Act for over $2,000 for construction,
alteration, or repair, including painting and decorating, of public
buildings and public works, except contracts with Indian tribes or
public nonprofit organizations serving as governmental instrumentalities
of an Indian tribe.
[[Page 29]]
The contracting officer shall include the wage rate determination in
contracts with private business entities, even when owned by an Indian
tribe or a member of an Indian tribe and in connection with joint
ventures with, or subcontractors of, an Indian tribe or a public
nonprofit organization serving as a governmental instrumentality of an
Indian tribe.
326.604 Competition.
(a) Contracts awarded under the Buy Indian Act are subject to
competition among Indians or Indian firms to the maximum extent
practicable. When the contracting officer determines that competition is
not practicable, a justification and approval is required in accordance
with subpart 306.3.
(b) The contracting officer shall: Synopsize and publicize
solicitations in the Government point of entry and provide copies of the
synopses to the tribal office of the Indian tribal government directly
concerned with the proposed acquisition as well as to Indian firms and
others having a legitimate interest. The synopses shall state that the
acquisitions are restricted to Indian firms under the Buy Indian Act.
326.605 Responsibility determinations.
(a) The contracting officer may award a contract under the Buy
Indian Act only if it is determined that the contractor will likely
perform satisfactorily and properly complete or maintain the contracted
project or function.
(b) The contracting officer shall make the written determination
specified in paragraph (a) of this section prior to the award of a
contract. The determination shall reflect an analysis of FAR 9.104-1
standards.
Subpart 326.7_Acquisitions Requiring the Native American Graves
Protection and Repatriation Act
326.700 Scope of subpart.
Public Law 101-601, dated November 16, 1990, also known as the
Native American Graves Protection and Repatriation Act, imposes certain
responsibilities on individuals and organizations when they discover
Native American cultural items (including human remains) on Federal or
tribal lands.
326.701 Applicability.
The contracting officer shall insert the clause at 352.226-3, Native
American Graves Protection and Repatriation Act, in solicitations,
contracts, and orders requiring performance on tribal lands or those for
construction projects on Federal or tribal lands.
[[Page 30]]
SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS
PART 327_PATENTS, DATA, AND COPYRIGHTS--Table of Contents
Subpart 327.3_Patent Rights Under Government Contracts
Sec.
327.303 Solicitation provision and contract clause.
Subpart 327.4_Rights in Data and Copyrights
327.404-70 Solicitation provision and contract clause.
327.409 Solicitation provision and contract clause.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 327.3_Patent Rights Under Government Contracts
327.303 Solicitation provision and contract clause.
The contracting officer shall insert the clause at 352.227-11,
Patent Rights--Exceptional Circumstances and any appropriate alternates
in lieu of Federal Acquisition Regulation (FAR) 52.227-11 whenever a
Determination of Exceptional Circumstances (DEC) involving the provision
of materials that has been executed in accordance with Agency policy and
procedures calls for its use and the clause at 352.227-11, Patent
Rights--Exceptional Circumstances, appropriately covers the
circumstances. The contracting officer should reference the DEC in the
solicitation and shall attach a copy of the executed DEC to the
contract.
Subpart 327.4_Rights in Data and Copyrights
327.404-70 Solicitation provision and contract clause.
The contracting officer shall insert the clause at 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 its work under the contract.
327.409 Solicitation provision and contract clause.
The contracting officer shall insert the clause at 352.227-14,
Rights in Data--Exceptional Circumstances, and any appropriate
alternates in lieu of the FAR clause at 52.227-14, Rights in Data-
General, whenever a DEC executed in accordance with Agency policy and
procedures calls for its use. Prior to using this clause, a DEC must be
executed in accordance with Agency policy and procedures. The
contracting officer should reference the DEC in the solicitation and
shall attach a copy of the executed DEC to the contract.
PART 328 [RESERVED]
PART 330_COST ACCOUNTING STANDARDS--Table of Contents
Subpart 330.2_CAS Program Requirements
Sec.
330.201 Contract requirements.
330.201-5 Waiver.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 330.2_CAS Program Requirements
330.201 Contract requirements.
330.201-5 Waiver.
The Senior Procurement Executive (SPE) shall exercise the waiver
authority under Federal Acquisition Regulation 30.201-5(a)(2). Operating
Divisions and Staff Divisions shall forward waiver requests to the SPE.
PART 331_CONTRACT COST PRINCIPLES AND PROCEDURES--Table of Contents
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
[[Page 31]]
Subpart 331.1_Applicability
331.101-70 Salary rate limitation.
(a) Beginning in fiscal year 1990, Congress has stipulated in the
Department of Health and Human Services appropriations acts and
continuing resolutions that, under applicable contracts, appropriated
funds cannot be used to pay the direct salary of an individual above the
stipulated rates. The applicable rates for each year are identified at
www.opm.gov.
(b) The contracting officer shall insert the clause at 352.231-70,
Salary Rate Limitation, in solicitations and contracts when a cost-
reimbursement; fixed-price level-of-effort; time-and-materials; or
labor-hour contract is contemplated.
PART 332_CONTRACT FINANCING--Table of Contents
Subpart 332.4_Advance Payments for Non-Commercial Items
Sec.
332.402 General.
332.407 Interest.
Subpart 332.5_Progress Payments Based on Cost
332.501 General.
332.501-2 Unusual progress payments.
Subpart 332.7_Contract Funding
332.702 Policy.
332.703 Contract funding requirements.
332.703-1 General.
332.703-71 Incrementally funded cost-reimbursement contracts.
332.703-72 Incremental Funding Table.
332.706 Solicitation provision and contract clauses.
332.706-2 Provision and clauses for limitation of cost or funds.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 332.4_Advance Payments for Non-Commercial Items
332.402 General.
(e) The head of the contracting activity (HCA) (non-delegable) shall
make determinations related to advanced payments and assure compliance
with FAR 32.402.
332.407 Interest.
(d) The HCA (non-delegable) shall make the determinations in FAR
32.407(d).
Subpart 332.5_Progress Payments Based on Cost
332.501 General.
332.501-2 Unusual progress payments.
(a)(3) The HCA (non-delegable) shall approve unusual progress
payments.
Subpart 332.7_Contract Funding
332.702 Policy.
Departmental employees shall report any suspected violation of the
Anti-Deficiency Act (31 U.S.C. 1341, 13 U.S.C. 1342, and 31 U.S.C. 1517)
immediately to the Operating Division's Chief Financial Officer (CFO),
who in turn will report the matter to the HHS Deputy CFO.
332.703 Contract funding requirements.
332.703-1 General.
(b) The following requirements govern all solicitations and
contracts using incremental funding, as appropriate:
(1) The contracting officer shall consider the estimated total cost
of the contract, including all planned increments of performance when
determining the requirements that must be met before contract execution
(e.g., Justification and Approvals, clearances, and approvals).
(2) The solicitation and resultant contract shall include a
statement of work or performance work statement that describes the total
project, covers all proposed increments of performance, and contains a
schedule of planned increments of performance. No funding increment may
exceed 1 year, and the services rendered during each increment of
performance must provide a specific material benefit that can stand
alone if the remaining effort is not funded. The resultant contract
shall also include the corresponding
[[Page 32]]
amount of funds planned for obligation for each increment of
performance.
(3) The contracting officer shall request that offerors respond to
the solicitation with technical and cost proposals for the entire
project, and shall require distinct technical and cost break-outs of the
planned increments of performance.
(4) Proposals shall be evaluated and any discussions and
negotiations shall be conducted based upon the total project, including
all planned increments of performance.
332.703-71 Incrementally funded cost-reimbursement contracts.
Incremental funding may be used in cost-reimbursement contracts for
severable services only when all of the following circumstances are
present:
(a) Funding of increments after the initial increment of performance
is provided from the appropriation account available for obligation at
that time;
(b) The project represents a bona fide need of the fiscal year in
which the contract is awarded and initially funded (i.e., the initial
increment of performance) and is also a bona fide need of each
subsequent fiscal year whose appropriation will be used; and
(c) The project's significance provides reasonable assurance that
subsequent year appropriations will be made available to fund the
project's continuation and completion.
332.703-72 Incremental Funding Table.
(a) The contracting officer shall insert substantially the following
language in Section B: Supplies or Services and Prices or Costs, Table
1, in all cost-reimbursement contracts for severable services using
incremental funding. The language requires the contracting officer to:
(1) Insert the initial funding obligated by the award;
(2) Identify the increment of performance covered by the funding
provided; and
(3) Specify the start and end dates for each increment of
performance, as required by the ``Limitation of Funds'' clause at FAR
52.232-22.
(b) Modification of the language is permitted to fit specific
circumstances of the contract, including but not limited to language
necessary to reflect the specific type of cost reimbursement contract
awarded, but the language may not be omitted completely.
Table 1--B. __Estimated Cost--Incrementally Funded Contract
(a) The total estimated cost to the Government for full performance
of this contract, including all allowable direct and indirect costs, is
$__ [insert full amount].
(b) The following represents the schedule* by which the Government
expects to allot funds to this contract:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Start date of Estimated cost plus
CLIN, task number, or description increment of End date of increment Estimated cost ($) Fee ($) (as fee ($) (as
performance of performance appropriate) appropriate)
--------------------------------------------------------------------------------------------------------------------------------------------------------
...................... ...................... .....................
--------------------------------------------------------------------------------------------------------------------
...................... ...................... .....................
--------------------------------------------------------------------------------------------------------------------
...................... ...................... .....................
--------------------------------------------------------------------------------------------------------------------
...................... ...................... .....................
--------------------------------------------------------------------------------------------------------------------
...................... ...................... .....................
--------------------------------------------------------------------------------------------------------------------
...................... ...................... [Total].............. [Total].............. [Total]
--------------------------------------------------------------------------------------------------------------------------------------------------------
* To be inserted after negotiation
(c) Total funds currently obligated and available for payment under
this contract are $__ [insert amount funded to date].
(d) The contracting officer may issue unilateral modifications to
obligate additional funds to the contract and make related changes to
paragraphs (b) and/or (c) above.
[[Page 33]]
(e) Until this contract is fully funded, the requirements of the
clause at FAR 52.232-22, Limitation of Funds, shall govern. Once the
contract is fully funded, the requirements of the clause at FAR 52.232-
20, Limitation of Cost, govern.
332.706 Solicitation provision and contract clauses.
332.706-2 Provision and clauses for limitation of cost or funds.
(b) In addition to the clause at FAR 52.232-22, Limitation of Funds,
the contracting officer shall insert the provision at 352.232-70,
Incremental Funding, in all solicitations when a cost-reimbursement
contract for severable services using incremental funding is
contemplated. The provision requires the contracting officer to insert a
specific increment of performance that the initial funding is expected
to cover.
PART 333_PROTESTS, DISPUTES, AND APPEALS--Table of Contents
Subpart 333.1_Protests
Sec.
333.102 General.
333.103 Protests to the agency.
Subpart 333.2_Disputes and Appeals
333.203 Applicability.
333.209 Suspected fraudulent claims.
333.215-70 Contract clauses.
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 333.1_Protests
333.102 General.
(g)(1) The Office of General Counsel-General Law Division serves as
the liaison for protests lodged with the Government Accountability
Office (GAO); is designated as the office responsible for all protests
within the Department of Health and Human Services; and serves as the
notification point with GAO for all protests.
(2) The contracting officer will follow the direction of the
Operating Division's protest control officer for responding to protests
whether they are filed with GAO or directly with the contracting
officer.
333.103 Protests to the agency.
(f)(1) Protests to the contracting officer must be in writing. The
contracting officer is authorized to make the determination, using the
criteria in Federal Acquisition Regulation 33.104(b), to award a
contract notwithstanding the protest after obtaining the concurrence of
the contracting activity's protest control officer and consulting with
the appropriate legal office.
Subpart 333.2_Disputes and Appeals
333.203 Applicability.
(c) The Civilian Board of Contract Appeals is the authorized
``Board'' to hear and determine disputes for the Department.
333.209 Suspected fraudulent claims.
The contracting officer shall submit any instance of a contractor's
suspected fraudulent claim to the Office of Inspector General for
investigation.
333.215-70 Contract clauses.
(a) The contracting officer shall insert the clause at 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 at 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).
[[Page 34]]
SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING
PART 334_MAJOR SYSTEM ACQUISITION--Table of Contents
Subpart 334.2_Earned Value Management System
Sec.
334.201 Policy.
334.202 Integrated Baseline Reviews (IBRs).
Authority: 5 U.S.C. 301; 40 U.S.C. 121(c)(2).
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
Subpart 334.2_Earned Value Management System
334.201 Policy.
The Department of Health and Human Services applies the earned value
management system requirement as follows:
(a) For cost or incentive contracts and subcontracts valued at $20
million or more, the contractor's earned value management system shall
comply with the guidelines in the American National Standards Institute/
Electronic Industries Alliance Standard 748, Earned Value Management
Systems (ANSI/EIA-748).
(b) For cost or incentive contracts and subcontracts valued at $50
million or more, the contractor shall have an earned value management
system that has been determined by the cognizant Federal agency to be in
compliance with the guidelines in ANSI/EIA-748.
(c) For cost or incentive contracts and subcontracts valued at less
than $20 million--
(1) The application of earned value management is optional at the
discretion of the program/project manager and is a risk-based decision
that must be supported by a cost/benefit analysis; and
(2) A decision to apply earned value management shall be documented
in the contract file.
(d) For firm-fixed-price contracts and subcontracts of any dollar
value the application of earned value management is discouraged.
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 acquisition plan 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 head of
the contracting activity prior to the issuance of the solicitation;
(3) The source selection plan and solicitation 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
(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.