[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2022 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, 2022
Containing a codification of documents of general
applicability and future effect
As of October 1, 2022
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 83
Chapter 5--General Services Administration 155
Chapter 6--Department of State 319
Finding Aids:
Table of CFR Titles and Chapters........................ 421
Alphabetical List of Agencies Appearing in the CFR...... 441
List of CFR Sections Affected........................... 451
[[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
previous annual editions of the LSA. For changes to the Code prior to
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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``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
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not dropped in error.
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, 2022
[[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, 2022.
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............... 36
328
[Reserved]
330 Cost accounting standards................... 36
331 Contract cost principles and procedures..... 36
332 Contract financing.......................... 37
333 Protests, disputes, and appeals............. 40
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
334 Major system acquisition.................... 41
335 Research and development contracting........ 41
336 Construction and architect-engineer
contracts............................... 42
337 Service contracting--general................ 43
339 Acquisition of information technology....... 44
SUBCHAPTER G--CONTRACT MANAGEMENT
342 Contract administration..................... 46
SUBCHAPTER H--CLAUSES AND FORMS
352 Solicitation provisions and contract clauses 47
353
Forms [Reserved]
SUBCHAPTERS I-L [RESERVED]
SUBCHAPTER M--HHS SUPPLEMENTATIONS
370 Special programs affecting acquisition...... 79
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 PGI Part 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.
[80 FR 72151, Nov. 18, 2015, as amended at 85 FR 72911, Nov. 16, 2020]
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--General
326.600-1 Scope of part.
326.600-2 Buy Indian Act acquisition regulations.
326.601--Definitions
326.601 Definitions.
326.602--Applicability
326.602-1 Scope of part.
326.602-2 Restrictions on the use of the Buy Indian Act.
326.603--Policy
326-603-1 Requirement to give preference to Indian Economic Enterprises.
326-603-2 Delegations and responsibility.
326-603-3 Deviations.
326.604--Procedures
326.604-1 General.
[[Page 26]]
326.604-2 Procedures for Acquisitions under the Buy Indian Act.
326.604-3 Debarment and suspension.
326.605--Contract Requirements
326.605-1 Subcontracting limitations.
326.605-2 Performance and payment bonds.
326.606--Representation by an Indian Economic Enterprise Offeror
326.606-1 General.
326.606-2 Representation provision.
326.606-3 Representation process.
326.607--Challenges to Representation
326.607-1 Procedure.
326.607-2 Receipt of Challenge.
326.607-3 Award in the face of Challenge.
326.607-4 Challenge not timely.
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, 25 U.S.C. 47, 25 U.S.C. 1633, 41 U.S.C.
253(c)(5), and 42 U.S.C. 2003.
Source: 80 FR 72151, Nov. 18, 2015, unless otherwise noted.
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.
[[Page 27]]
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 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
Source: 87 FR 2072, Jan. 13, 2022, unless otherwise noted.
326.600 General.
326.600-1 Scope of part.
This subpart implements policies and procedures for the procurement
of supplies, general services, architect and engineer (A&E) services, or
construction while giving preference to Indian
[[Page 28]]
Economic Enterprises under authority of the Buy Indian Act (25 U.S.C.
47).
326.600-2 Buy Indian Act acquisition regulations.
(a) This subpart supplements Federal Acquisition Regulation (FAR)
and Health and Human Services Acquisition Regulation (HHSAR)
requirements to meet the needs of the Department of Health and Human
Services (HHS), Indian Health Service (IHS) in implementing the Buy
Indian Act.
(b) This subpart is under the direct oversight and control of the
Head of Contracting Activity (HCA), within the Office of Management
Services (OMS)--IHS, HHS. The HCA, in consultation with the Assistant
Secretary for Financial Resources (ASFR) and the Senior Procurement
Executive (SPE), is responsible for promulgating this subpart, and
following its enactment, will be primarily responsible for implementing
its terms.
(c) Acquisitions conducted under this subpart are subject to all
applicable requirements of the FAR and HHSAR, as well as internal
policies, procedures, or instructions issued by IHS. After the FAR, this
HHSAR subpart would take precedence over any inconsistent IHS policies,
procedures, or instructions.
326.601 Definitions.
Alaska Native Claims Settlement Act (ANCSA) means Public Law 92-203
(December 18, 1971), 85 Stat. 688, codified at 43 U.S.C. 1601-1629h.
Alaska Native Corporation means any Regional Corporation, any
Village Corporation, any Urban Corporation, and any Group Corporation as
those terms are defined by ANCSA.
Buy Indian Act means section 23 of the Act of June 25, 1910,
codified at 25 U.S.C. 47.
Chief Contracting Officer (CCO) means a person with authority to
enter into, administer, or terminate contracts and make related
determinations and findings on behalf of the U.S. Government for the
respective IHS Areas.
Contracting Officer (CO) means a person with the authority to enter
into, administer, or terminate contracts and make related determinations
and findings on behalf of the U.S. Government.
Construction means the planning, design, construction and
renovation, including associated architecture and engineering services,
of IHS facilities pursuant to 25 U.S.C. 1631 and in the construction of
safe water and sanitary waste disposal facilities pursuant to 25 U.S.C.
1632.
Deviation means an exception to the requirement to use the Buy
Indian Act in fulfilling an acquisition requirement subject to the Buy
Indian Act.
Fair market price means a price based on reasonable costs under
normal competitive conditions and not on lowest possible cost, as
determined in accordance with FAR 19.202-6(a).
Indian means a person who is an enrolled member of an Indian Tribe
or ``Native'' as defined in the Alaska Native Claims Settlement Act.
Indian Health Service (IHS) means operations at all administrative
levels of IHS, including Headquarters, Area Offices, and Service Units
(inclusive of clinics).
Indian Economic Enterprise (IEE) means any business activity owned
by one or more Indians or Indian Tribes that is established for the
purpose of profit provided that: The combined Indian or Indian Tribe
ownership must constitute not less than 51 percent of the enterprise;
the Indians or Indian Tribes must, together, receive at least a majority
of the earnings from the contract; and the management and daily business
operations of an enterprise must be controlled by one or more
individuals who are Indians. To ensure actual control over the
enterprise, the individuals must possess requisite management or
technical capabilities directly related to the primary industry in which
the enterprise conducts business. The enterprise must meet these
requirements throughout the following time periods:
(1) At the time an offer is made in response to a written
solicitation;
(2) At the time of the contract award; and
(3) During the full term of the contract.
Indian Tribe means an Indian Tribe, band, nation, or other
recognized group or community that is recognized as eligible for the
special programs and services provided by the United States to
[[Page 29]]
Indians because of their status as Indians, including any Alaska Native
village or regional or village corporation under the Alaska Native
Claims Settlement Act (Pub. L. 92-203, 85 Stat. 688; 43 U.S.C. 1601).
Indian Small Business Economic Enterprise (ISBEE) means an IEE that
is also a small business concern established in accordance with the
criteria and size standards of 13 CFR part 121.
Interested Party means an IEE that is an actual or prospective
offeror whose direct economic interest would be affected by the proposed
or actual award of a particular contract set-aside pursuant the Buy
Indian Act.
List of Federally Recognized Tribes means the list published
annually in the Federal Register identifying Indian entities that are
recognized by and eligible to receive services from the United States
Department of the Interior (DOI), Bureau of Indian Affairs (BIA).
Transfer Act of 1954 means the authority of transferred
responsibility and other health care ``functions, responsibilities,
authorities and duties of the Department of the Interior'' (including
the Snyder Act) to Health, Education and Welfare, the predecessor of the
HHS. Public Law 83-568, 68 Stat. 674 (1954) (codified at 42 U.S.C. 2001
et seq.). The Transfer Act authorizes IHS to use the Buy Indian Act (25
U.S.C. 47) to carry out its health care responsibilities.
326.602 Applicability.
326.602-1 Scope of part.
Except as provided in HHSAR 326.602-2, this subpart applies to all
acquisitions above the micro-purchase threshold, including simplified
acquisitions, made by IHS, and any HHS operating divisions or agency
outside of IHS conducting acquisitions on behalf of IHS.
326.602-2 Restrictions on the use of the Buy Indian Act.
(a) IHS may not use the authority of the Buy Indian Act and the
procedures contained in this subpart to award intergovernmental
contracts to Tribal organizations to plan, operate, or administer
authorized IHS programs (or parts thereof) that are within the scope and
intent of the Indian Self-Determination and Education Assistance Act
(ISDEAA) (Pub. L. 93-638). IHS must use the Buy Indian Act solely to
award procurement contracts to IEEs. Contracts subject to ISDEAA are not
covered under the FAR and are codified separately under 25 CFR part 900
and 42 CFR part 137.
(b) Contract health services (referred to administratively as
Purchased/Referred Care services) are defined at 25 U.S.C. 1603 as
excluding services provided by Buy Indian Act contractors. Accordingly,
the Buy Indian Act may not be used to obtain services through the
Purchased/Referred Care program (previously Contract Health Services).
Purchase orders for care authorized pursuant to 42 CFR part 136 subpart
C may be issued without regard to the provisions of this Part.
326.603 Policy.
326.603-1 Requirement to give preference to Indian Economic Enterprises.
(a) Except as provided by 25 U.S.C. 1633, IHS must use the
negotiation authority of the Buy Indian Act to give preference to IEEs
whenever the use of that authority is practicable. Thus, IHS may use the
Buy Indian Act to give preference to IEEs through set-asides when
acquiring supplies, general services, A&E services, or construction to
meet IHS needs and requirements. The Buy Indian Act does not apply when
mandatory government sources are available, as required by FAR Part
8.002.
(b) Contract awards under the authority of the Buy Indian Act can be
pursued via the acquisition procedures prescribed in this HHSAR subpart
in conjunction with the procedures from FAR part 12, 13, 14, 15 and/or
16.
(c) The CO will give priority to ISBEEs for all purchases,
regardless of dollar value, by utilizing ISBEE set-aside to the maximum
extent possible. COs when prioritizing ISBEEs may consider either:
(1) A set-aside for ISBEEs; or
(2) A sole source award to an ISBEE, as authorized under the FAR.
(d) If the CO determines after market research that there is no
reasonable expectation of obtaining offers from two
[[Page 30]]
or more ISBEEs that will be competitive in terms of market price,
product quality, and delivery capability, the CO may consider either:
(1) A set-aside for IEEs; or
(2) A sole source award to an IEE, as authorized under the FAR.
(e) If the CO determines after market research that there is no
reasonable expectation of obtaining two or more offers that will be
competitive in terms of market price, product quality, and delivery
capability, from ISBEEs and/or IEEs, then the CO shall follow the
Deviation process under HHSAR 326.603-3.
(f) Price analysis technique(s) provided in FAR 15.404-1(b) shall be
used in determination of price fair and reasonableness when only one
offer is received from a responsible ISBEE or IEE in response to an
acquisition set-aside under paragraph (d)(1) or (e)(1) of this section:
(1) If the offer meets the technical capability requirements and is
not at a reasonable and fair market price, then the CO may negotiate
with that enterprise for a reasonable and fair market price, as
authorized under the FAR.
(2) If the offer meets the technical capability requirements and is
at a reasonable and fair market price, then the CO must:
(i) Make an award to that enterprise;
(ii) Document the reason only one offer was considered; and
(iii) Initiate action to increase competition in future
solicitations.
(g) If the offers received in response to an acquisition set-aside
under paragraph (c) or (d) of this section are determined to be
unreasonable or otherwise unacceptable upon price and/or technical
evaluations, then the CO must follow the Deviation process under HHSAR
326.603-3. The CO must document in the deviation determination the
reasons why the IEE offeror(s) were not reasonable or otherwise
unacceptable.
(1) If a deviation determination is approved, the CO must cancel the
current ISBEE or IEE set-aside solicitation and inform all offerors in
writing.
(2) If a deviation determination is approved, the CO must identify,
based on current available market research, an alternate set-aside or
procurement method.
(3) When the solicitation of the same requirement is posted, the CO
must inform all previous offerors in writing of the solicitation number.
(h) With respect to construction, the provisions of 25 U.S.C. 1633
shall apply. Under 25 U.S.C. 1633, IHS may give a preference to an IEE
unless the agency finds, after considering the evaluation criteria
listed in 25 U.S.C. 1633, that the project to be contracted for will not
be satisfactory or cannot be properly completed or maintained under the
proposed contract.
326.603-2 Delegations and responsibility.
(a) The Director, IHS--exercises the authority of the Buy Indian Act
pursuant to the Transfer Act of 1954, as delegated pursuant to 25 U.S.C.
1661. Under 25 U.S.C. 1661, the Director is authorized ``to enter into
contracts for the procurement of goods and services to carry out the
functions of the IHS.'' IHS exercises this authority in support of its
mission and program activities and as a means of fostering Indian
employment and economic development.
(b) The IHS HCA is responsible for ensuring that all IHS
acquisitions under the Buy Indian Act comply with the requirements of
this part.
326.603-3 Deviations.
(a) There are certain instances where the application of the Buy
Indian Act to an acquisition may not be appropriate. In these instances,
the CO must detail the reasons in writing or via email and make a
deviation determination.
(b) Some acquisitions by their very nature would make such a written
determination unnecessary. For example, any order or call placed against
an indefinite delivery vehicle that already has an approved deviation
from the requirements of the Buy Indian Act.
(c) Deviation determinations shall be required for all other
acquisitions where the Buy Indian Act is applicable and must be approved
as follows:
[[Page 31]]
Table 1 to Paragraph (c)
------------------------------------------------------------------------
The following official may
For a proposed contract action authorize a deviation
------------------------------------------------------------------------
Exceeding the micro-purchase threshold Contracting Officer.
and up to $25,000.
Exceeding $25,000 but not exceeding Chief Contracting Officer (CCO)
$700,000. (or the IHS Division of
Acquisition Policy (DAP)
Director, absent a CCO).
Exceeding $700,000 but not exceeding IHS Competition Advocate.
$13.5 million.
Exceeding $13.5 million but not Head of Contracting Activity.
exceeding $68 million.
Exceeding $68 million.................. HHS Office of Small &
Disadvantaged Business
Utilization (OSDBU), Office of
the General Counsel (OGC), HHS
Department Competition
Advocate andthe HHS Senior
Procurement Executive.
------------------------------------------------------------------------
(d) Deviations may be authorized prior to issuing the solicitation
when the CO makes the following determinations and takes the following
actions:
(1) The CO determines after market research that there is no
reasonable expectation of obtaining offers that will be competitive in
terms of market price, quality and delivery from two or more responsible
ISBEEs or IEEs.
(2) The deviation determination is authorized by the official listed
at HHSAR 326.603-3(c) for the applicable contract action.
(e) If a deviation determination has been approved, the CO must
follow the FAR and HHSAR unless specified otherwise.
(f) Acquisitions made under an authorized deviation from the
requirements of the Buy Indian Act must be made in conformance with the
order of precedence required by FAR Part 8.002.
326.604 Procedures.
326.604-1 General.
All acquisitions under the authority of the Buy Indian Act, must
conform to all applicable requirements of the FAR and HHSAR.
326.604-2 Procedures for Acquisitions under the Buy Indian Act.
(a) Each acquisition of supplies, services and construction that is
subject to commercial items or simplified acquisition procedures in
accordance with FAR Parts 12 or 13 must be set-aside exclusively for
ISBEEs, except as otherwise set forth in this Part. IHS will use ISBEE
commercial item(s) or simplified acquisition set-asides to accomplish
this preference action.
(b) Commercial items or simplified acquisitions under this section
must conform to the competition and price reasonableness documentation
requirements of FAR 12.209 for commercial item acquisitions and FAR
13.106 for simplified acquisitions.
(c) When acquiring construction and A&E services, solicit proposals
and evaluate potential contractors in accordance with FAR Part 36.
(d) This paragraph applies to solicitations that are not restricted
to participation of IEEs.
(1) If an interested IEE is identified after a solicitation has been
issued, but before the date established for receipt of offers, the
contracting office must provide a copy of the solicitation to this
enterprise. In this case, the CO:
(i) Will not give preference under the Buy Indian Act to the IEE;
and
(ii) May extend the date for receipt of offers when practical.
(2) If more than one IEE is identified after issuing a solicitation,
but prior to the date established for receipt of offers, the CO may
cancel the solicitation and re-compete it as an IEE set-aside.
(e) The contracting officer shall insert the provision at HHSAR
352.226-4, NOTICE OF INDIAN SMALL BUSINESS ECONOMIC ENTERPRISE SET-
ASIDE, in solicitations for acquisitions that are set-aside to ISBEE
concerns under HHSAR 326.603-1(c).
(1) The contracting officer shall insert the provision at HHSAR
352.226-5, NOTICE OF INDIAN ECONOMIC ENTERPRISE SET-ASIDE, in
solicitations for acquisitions that are set-aside to IEE concerns in
accordance with HHSAR 326.603-1(d).
(2) The contracting officer shall insert the clause at HHSAR
352.226-6, SUBCONTRACTING LIMITATIONS, in all solicitations and
contracts when
[[Page 32]]
the contract award is to be made under the authority of the Buy Indian
Act.
(3) The contracting officer shall insert the provision at HHSAR
352.226-7, INDIAN ECONOMIC ENTERPRISE REPRESENTATION, in all
solicitations when the contract award is to be made under the authority
of the Buy Indian Act.
326.604-3 Debarment and suspension.
A misrepresentation by an offeror of its status as an IEE, failure
to notify the CO of any change in IEE status that would make the
contractor ineligible as an IEE, or any violation of the regulations in
this part by an offeror or an awardee may lead to debarment or
suspension in accordance with FAR 9.406 and 9.407 and HHSAR 309.406 and
309.407.
326.605 Contract Requirements.
326.605-1 Subcontracting limitations.
(a) The CO shall insert FAR clause at 52.219-14, Limitations on
Subcontracting, in solicitations and contracts for supplies, services,
and construction, if any portion of the requirement is to be set-aside
for ISBEEs and IEEs.
(b) The CO must also insert the clause 352.226-6, Indian Economic
Enterprise Subcontracting Limitations, in all awards to ISBEEs and IEEs
pursuant this part.
326.605-2 Performance and payment bonds.
Solicitations requiring performance and payment bonds must conform
to FAR Part 28 and authorize use of any of the types of security
acceptable in accordance with FAR Subpart 28.2 or section 11 of Public
Law 98-449, the Indian Financing Act Amendments of 1984 (25 U.S.C. 47a).
In accordance with FAR 28.102 and 25 U.S.C. 47a, the CO may accept
alternative forms of security in lieu of performance and payment bonds
if a determination is made that such forms of security provide the
Government with adequate security for performance and payment.
326.606 Representation by an Indian Economic Enterprise Offeror.
326.606-1 General.
(a) The CO must insert the provision at HHSAR 352.226-7, INDIAN
ECONOMIC ENTERPRISE REPRESENTATION, in all solicitations regardless of
dollar value solicited under HHSAR 326.603-1(c) or (d) and in accordance
with this part.
(b) To be considered for an award under HHSAR 326.603-1(c) or (d),
an offeror must:
(1) Certify that it meets the definition of ``Indian Economic
Enterprise'' in response to a specific solicitation set-aside in
accordance with the Buy Indian Act and this part; and
(2) Identify the Indian Tribe(s) upon which the offeror relies for
its IEE status.
(c) The enterprise must meet the definition of ``Indian Economic
Enterprise'' throughout the following time periods:
(1) At the time an offer is made in response to a solicitation;
(2) At the time of contract award; and
(3) During the full term of the contract.
(d) If, after award, a contractor no longer meets the eligibility
requirements as it has certified and as set forth in this section, then
the contractor must provide the CO with written notification within 3
calendar days of its failure to comply with the eligibility
requirements. The notification must include:
(1) Full disclosure of circumstances causing the contractor to lose
eligibility status; and
(2) A description of actions, if any, that must be taken to regain
eligibility.
(e) Failure to maintain eligibility under the Buy Indian Act or to
provide written notification required by paragraph (d) of this section
means that:
(1) The contractor may be declared ineligible for future contract
awards under this part;
(2) The CO may consider termination for default of the ongoing
contract; and
(3) The CO may pursue debarment or suspension of the contractor.
[[Page 33]]
(f) The CO will review the offeror's representation that it is an
IEE in a specific bid or proposal and verify that the Indian Tribe(s)
that the offeror identified in the representation is either on the List
of Federally Recognized Tribes or is an Alaska Native Corporation. A CO
will also investigate the representation if an interested party
challenges the IEE representation or if the CO has any other reason to
question the representation. The CO may ask the offeror for more
information to substantiate the representation. Challenges of and
questions concerning a specific representation must be referred to the
CO or CCO in accordance with HHSAR 326.607.
(g) Participation in the Mentor-Prot[eacute]g[eacute] Program
established under section 831 of the National Defense Authorization Act
for Fiscal Year 1991 (25 U.S.C. 47 note) does not render an IEE
ineligible for contracts awarded under the Buy Indian Act.
326.606-2 Representation provision.
(a) Contracting offices must provide copies of the awardees' IEE
representation to any interested parties upon written request. IHS will
make awardees' IEE representations available via IHS public sites and/or
other means.
(b) Any false or misleading information submitted by an enterprise
when submitting an offer in consideration for an award set-aside under
the Buy Indian Act may be a violation of the law punishable under 18
U.S.C. 1001. False claims submitted as part of contract performance may
be subject to the penalties enumerated in 31 U.S.C. 3729 to 3731 and 18
U.S.C. 287.
(c) The CO shall inform the Head of Contracting Activity, within 10
business days, of all suspected IEE misrepresentation by an offeror or
failure to provide written notification of a change in IEE eligibility.
326.606-3 Representation process.
(a) Only IEEs may participate in acquisitions set-aside in
accordance with the Buy Indian Act and this part. The procedures in this
Part are intended to support responsible IEEs and prevent circumvention
or abuse of the Buy Indian Act.
(b) The CO shall review the ownership information furnished under
HHSAR 352.226-7(b) and verify that the Indian Tribe(s) identified is
either on the List of Federally Recognized Tribes or is an Alaska Native
Corporation.
(c) If the CO cannot verify from the offeror submission that the
Indian Tribe(s) identified is either on the List of Federally Recognized
Tribes or is an Alaska Native Corporation, the CO must allow the offeror
to correct information submitted under HHSAR 352.226-7(b). The CO should
make every effort to allow the offeror to correct the information. If
the requirement is time sensitive the CO must specify to the offeror the
time and date by which a response is required.
(1) If the CO determines the offeror is not responsive, the CO must
document the circumstances and inform the offeror of the determination.
(2) The CO may ask the appropriate regional Office of the General
Counsel to review the IEE representation.
(3) The IEE representation does not relieve the CO of the obligation
for determining contractor responsibility, as required by FAR Subpart
9.1.
326.607 Challenges to Representation.
326.607-1 Procedure.
(a) The CO can accept an offeror's written representation of being
an ISBEE or IEE (as defined in HHSAR 326.601) only when it is submitted
in response to a Sources Sought Notice, Request for Information (RFI) or
with an offer in response to a solicitation under the Buy Indian Act.
Another interested party may challenge the representation of an offeror
or awardee by filing a written challenge.
(b) Upon receipt of the challenge, the CO shall re-verify the
representation of the offeror or awardee in accordance with the
requirements of this subpart, including the provisions of 326.606.
326.607-2 Receipt of Challenge.
(a) An interested party must file any challenges against an
offeror's representation with the cognizant CO.
(b) The challenge must be in writing and must contain the basis for
the
[[Page 34]]
challenge with accurate, complete, specific and detailed evidence. The
evidence must support the allegation that the offeror fails to meet the
definition of Indian Economic Enterprise or Indian Small Business
Economic Enterprise as defined in HHSAR 326.601 or is otherwise
ineligible. The CO will dismiss any challenge that is deemed frivolous
or that does not meet the conditions in this section.
(c) To be considered timely, a challenge must be received by the CO
no later than 10 calendar days after the basis of challenge is known or
should have been known, whichever is earlier.
(1) A challenge may be made orally if it is confirmed in writing
within the 10-day period after the basis of challenge is known or should
have been known, whichever is earlier.
(2) A written challenge may be delivered by hand, email, or letter
postmarked within the 10-day period after the basis of challenge is
known or should have been known, whichever is earlier.
(3) A CO's challenge to a certification is always considered timely,
whether filed before or after award.
(d) Upon receiving a timely challenge, the CO must:
(1) Notify the challenger of the date it was received, and that the
representation of the enterprise being challenged is under
consideration; and
(2) Furnish to the offeror (whose representation is being
challenged) a request to provide detailed information on its eligibility
by certified mail, return receipt requested or email.
(e) Within 3 calendar days after receiving a copy of the challenge
and the CO's request for detailed information, the challenged offeror
must file, as specified at (d)(2), with the CO a complete statement
answering the allegations in the challenge and furnish evidence to
support its position on representation. If the offeror does not submit
the required material within the 3 calendar days, or another period of
time granted by the CO, the CO may assume that the offeror does not
intend to dispute the challenge and must not award to the challenged
offeror.
(f) Within 10 calendar days after receiving a challenge, the
challenged offeror's response, and any other pertinent information, the
CO must determine the representation status of the challenged offeror
and notify the challenger and the challenged offeror of the decision by
certified mail, return receipt requested or email, and make known to all
parties the option to appeal the determination to IHS DAP.
(g) If the representation accompanying an offer is challenged and
subsequently upheld by DAP, the written notification of this action must
state the reason(s).
326.607-3 Award in the Face of Challenge.
(a) Award of a contract in the face of challenge only may be made on
the basis of the CO's written determination that the challenged
offeror's representation is valid.
(1) This determination is final unless it is appealed to DAP, and
the CO is notified of the appeal before award.
(2) If an award was made before the CO received notice of appeal,
the contract is presumed to be valid.
(b) After receiving a challenge involving an offeror being
considered for award, the CO must not award the contract until the CO
has determined the validity of the representation. Award may be made in
the face of a timely challenge when the CO determines in writing that an
award must be made to protect the public interest, is urgently required,
or a prompt award will otherwise be advantageous to the Government.
(c) If a timely challenge on representation is filed with the CO and
received before award in response to a specific offer and solicitation,
the CO must notify eligible offerors within one day that the award will
be withheld. The CO also may ask eligible offerors to extend the period
for acceptance of their proposals.
(d) If a challenge on representation is filed with the CO and
received after award in response to a specific offer and solicitation,
the CO need not suspend contract performance or terminate the awarded
contract unless the CO believes that an award may be invalidated and a
delay would prejudice the Government's interest. However, if
[[Page 35]]
contract performance is to be suspended, the CO would follow those
guidelines as outlined in FAR Part 49.
326.607-4 Challenge Not Timely.
If a CO receives an untimely filed challenge of a representation,
the CO must notify the challenger that the challenge cannot be
considered on the instant acquisition but will be considered in any
future actions. However, the CO may question at any time, before or
after award, the representation of an IEE.
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 36]]
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 37]]
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.
Subpart 332.70_Electronic Submission and Processing of Payment Requests
332.7000 Scope of subpart.
332.7001 Definitions.
332.7002 Policy.
332.7003 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 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