[Federal Register Volume 64, Number 162 (Monday, August 23, 1999)]
[Proposed Rules]
[Pages 46104-46107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21078]
[[Page 46103]]
_______________________________________________________________________
Part V
Department of Housing and Urban Development
_______________________________________________________________________
48 CFR Part 2403 et al.
HUD Acquisition Regulation; Miscellaneous Revisions; Proposed Rule
Federal Register / Vol. 64, No. 162 / Monday, August 23, 1999 /
Proposed Rules
[[Page 46104]]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
48 CFR Parts 2403, 2409, 2436, 2439, 2442, 2452 and 2453
[Docket No. FR-4291-P-01]
RIN 2535-AA25
HUD Acquisition Regulation; Miscellaneous Revisions
AGENCY: Office of the Chief Procurement Officer (CPE).
ACTION: Proposed rule.
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SUMMARY: This proposed rule would amend the Department of Housing and
Urban Development (HUD) Acquisition Regulation (HUDAR) to implement
changes applicable to HUD's procurement activities made in the Federal
Acquisition Regulation since the HUDAR's last issuance. It would also
implement miscellaneous HUD procurement rules as described in the
Supplementary Information below.
DATES: Comment Due Date: October 22, 1999.
ADDRESSES: Interested persons are invited to submit comments regarding
this rule to the Rules Docket Clerk, Office of the General Counsel,
Room 10276, Department of Housing & Urban Development, 451 Seventh
Street, SW., Washington, DC 20410-8000. Communication should refer to
the above docket number and title. Facsimile comments will not be
accepted. A copy of each communication submitted will be available for
public inspection and copying between 7:30 am and 5:30 pm weekdays at
the above address.
FOR FURTHER INFORMATION CONTACT: Frederick Graves, Policy and Field
Operations Division, Office of Procurement and Contracts (Seattle
Outstation), U.S. Department of Housing and Urban Development, Seattle
Federal Office Building, 909 1st Avenue, Seattle, WA 98104-1000, (206)
220-5122, ext. 3450. Hearing or speech-impaired individuals may call
(206) 220-5185 (TTY) or 1-800-877-8339 (Federal Information Relay
Service TTY). (Other than the ``800'' number, these are not toll-free
numbers.)
SUPPLEMENTARY INFORMATION:
Background
The uniform regulation for the procurement of supplies and services
by Federal departments and agencies, the Federal Acquisition Regulation
(FAR), was promulgated on September 19, 1983 (48 FR 42102). The FAR is
codified in title 48, chapter 1, of the Code of Federal Regulations.
HUD promulgated its regulation to implement the FAR on March 1, 1984
(49 FR 7696).
The HUDAR (title 48, chapter 24 of the Code of Federal Regulations)
is prescribed by the Chief Procurement Officer under section 7(d) of
the Department of HUD Act (42 U.S.C. 3535(d)); section 205(c) of the
Federal Property and Administrative Services Act of 1949 (40 U.S.C.
486(c)); the Secretary's delegation effective October 6, 1998 (63 FR
54723); and the general authorization in FAR 1.301.
The most recent version of the HUDAR was published as a final rule
on May 1, 1996 (61 FR 19467). This proposed rule amends the HUDAR to
reflect HUD's implementation of changes in the FAR and Federal statutes
applicable to HUD's procurement activities. Please note that the
Department is also publishing, elsewhere in this issue of the Federal
Register, an interim rule for comment making other changes to the
HUDAR.
Section 2403.670 is revised pursuant to section 4301 of the Federal
Acquisition Reform Act of 1996, (Public Law 104-106, 110 Stat. 642,
approved February 10, 1996) (1996 FAR Act) to delete the requirement
for a certification regarding Federal employment by offerors and
contractors.
In accordance with Section 4301 of the 1996 FAR Act, the Department
is removing, via this proposed rule, two of its three previously
existing regulatory certification requirements that are not statutorily
based, viz., 2452.203-71, ``Certification Regarding Federal
Employment'' and 2452.209-71, ``Organizational Conflicts of Interest
Certification.'' The Chief Procurement Officer has made a determination
to retain the certification requirement at Section 2426.703 and the
related solicitation provision at 2452.226-70, Certification of Status
as a Minority Business Enterprise. The CPE has determined that the
Department needs to maintain its capability to provide accurate, timely
reporting on its minority contracting activity statistics. This
certification is the most efficient means for obtaining the data needed
for making such reports.
In section 2439.107 a new paragraph (b) is added to prescribe the
use of a computer virus security clause in contracts for information
technology.
Section 2442.1106 is revised to replace the Department's current
requirement for the use of a specific project planning and monitoring
process for certain technical services contracts with a generic
requirement for an acceptable planning and monitoring system. The
revision allows contractors to develop their own system or use
commercially available systems that are acceptable to the contracting
officer. This also permits the use of automated planning and monitoring
systems to streamline those functions. HUD's current system is not
automated.
Section 2452.203-71 is removed to delete the requirement for the
non-statutory certification (see comments under 2403.670 above).
Section 2452.209-70 is replaced with a new version of the
solicitation provision in which the contracting officer identifies the
potential areas for organizational conflicts of interest. This reflects
the guidance provided in FAR Subpart 9.5.
Section 2452.209-71 is revised to better conform to the
requirements of FAR Subpart 9.5, viz., to place the burden on the
contracting officer of describing any potential organizational conflict
of interest in the contract. The revised clause also prohibits the
contractor's performance under future contracts of work using
specifications developed by the contractor under the immediate
contract. The contracting officer may also impose additional
restrictions via this clause. Section 2452.209-71 is also revised
pursuant to section 4301 of the 1996 FAR Act to delete the existing
requirement for the submission of an organizational conflict of
interest certification by all offerors.
In section 2452.215-70, an Alternate III is added to obtain
information required of offerors by the provision at 2452.209-72.
Section 2452.239-71 is added in accordance with 2439.107(b). The
clause seeks to prevent the knowing submission by a contractor of
information technology containing viruses that the contractor should
have detected before such submission.
Section 2452.242-71 is revised to describe in generic terms the
Department's requirements for project planning and monitoring systems
to be used under contracts exceeding $500,000 for technical or
professional services for work of a developmental or advisory nature.
This eliminates the requirement for HUD's previous system which was not
automated and permits the use of contractors' own automated planning
and monitoring systems to streamline those functions. The forms related
to the previous system at 2453.242-70 and 2453.242-71 are removed.
Findings and Certifications
Paperwork Reduction Act Statement
The information collection requirements contained in the HUDAR,
[[Page 46105]]
as described in the table below, have been submitted to the Office of
Management and Budget for review under section 3507(d) of the Paperwork
Reduction Act of 1995 (44 U.S.C. Chapter 35).
Estimate of the total reporting and recordkeeping burden that will
result from the collection of information:
REPORTING AND RECORDKEEPING BURDEN:
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Annual Est. avg.
Number of freq. of time for Est. annual
Section reference parties requirement requirement burden
(annum) (hours) (hours)
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HUDAR:
2452.209-70............................................. 350 1 0.5 175
2452.209-72............................................. 5 1 1.0 5
2452.215-70............................................. 350 1 120.0 42,000
2452.216-72............................................. 2 4 2.0 16
2452.219-70............................................. 30 1 0.5 15
2452.219-71............................................. 30 4 0.1 12
2452.237-70............................................. 30 1 4.0 120
2452.237-75............................................. 5 1 5.0 25
2452.239-70............................................. 40 1 1.0 40
2452.242-71 (initial plan).............................. 40 1 8.0 320
2452.242-71 (reports)................................... 40 12 8.0 2,880
HUD 770................................................. 2 1 0.5 1
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Total Reporting and Recordkeeping Burden (Hours)...... ........... ........... ........... 45,609
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In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments
from members of the public and affected agencies concerning this
collection of information to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond; including through the use of appropriate automated
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
Interested persons are invited to submit comments regarding the
information collection requirements in this proposal. Comments must be
received within sixty (60) days from the date of this proposal.
Comments must refer to the proposal by name (HUDAR) and must be sent
to:
Joseph F. Lackey, Jr., HUD Desk Officer, Office of Management and
Budget, New Executive Office Building, Washington, DC 20503
and
Antoinette Henry, Reports Liaison Officer, Office of the Chief
Procurement Officer, Department of Housing & Urban Development, 451--
7th Street, SW, Room 5262, Washington, DC 20410.
Unfunded Mandates Reform Act
The Secretary has reviewed this rule before publication and by
approving it certifies, in accordance with the Unfunded Mandates Reform
Act of 1995 (2 U.S.C. 1532), that this rule does not impose a Federal
mandate that will result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this rule, and in so doing
certifies that this proposed rule will not have a significant economic
impact on a substantial number of small entities. Small businesses are
specifically invited, however, to comment on whether this rule will
significantly affect them, and persons are invited to submit comments
according to the instructions in the DATES and COMMENTS sections in the
preamble of this proposed rule.
Environmental Impact
This rule does not direct, provide for assistance or loan and
mortgage insurance for, or otherwise govern or regulate real property
acquisition, disposition, leasing, rehabilitation, alteration,
demolition or new construction, or establish, revise or provide for
standards for construction or construction materials, manufactured
housing or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this rule
is categorically excluded from environmental review under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321). Accordingly, a
Finding of No Significant Impact is not required.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this rule
will not have substantial direct effects on States or their political
subdivisions, or the relationship between the Federal Government and
the States, or on the distribution of power and responsibilities among
the various levels of Government. No programmatic or policy changes
will result from this document's promulgation that would affect the
relationship between the Federal Government and State and local
governments.
Executive Order 13045, Protection of Children From Environmental Health
Risks and Safety Risks
This rule will not pose an environmental health risk or safety risk
to children.
List of Subjects in 48 CFR Parts 2403, 2409, 2436, 2439, 2442, 2452
and 2453.
Government procurement, HUD acquisition regulations.
Accordingly, title 48, chapter 24 of the Code of Federal
Regulations, is proposed to be amended as follows:
PART 2403--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
1. The authority citation for part 2403 continues to read as
follows:
[[Page 46106]]
Authority: 42 U.S.C. 3535(d).
2. Section 2403.670 is revised to read as follows:
2403.670 Solicitation provision and contract clause.
Insert the clause at 48 CFR 2452.203-70 in all solicitations and
contracts.
PART 2409--CONTRACTOR QUALIFICATIONS
3. The authority citation for part 2409 continues to read as
follows:
Authority: 40 U.S.C. 486(c); and 42 U.S.C. 3535(d).
4. Section 2409.507-1 is revised to read as follows:
2409.507-1 Solicitation provisions.
The Contracting Officer shall insert a provision substantially the
same as the provision at 48 CFR 2452.209-70, Potential Organizational
Conflicts of Interest, in all solicitations over the simplified
acquisition limitation when the Contracting Officer has reason to
believe that a potential organizational conflict of interest exists.
The Contracting Officer shall describe the nature of the potential
conflict in the provision.
5. Section 2409.507-2 is revised to read as follows:
2409.507-2 Contract clauses.
The Contracting Officer shall insert a clause substantially the
same as the clause at 48 CFR 2452.209-71, Limitation on Future
Contracts, in all contracts above the simplified acquisition threshold.
The Contracting Officer shall describe in the clause the nature of the
potential conflict, and the negotiated terms and the duration of the
limitation.
PART 2436--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
6. The authority citation for part 2436 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
7. Paragraph (a)(2) of section 2436.602-2 is revised to read as
follows:
2436.602-2 Evaluation boards.
(a) * * *
(2) The cognizant program office head for boards appointed at the
field level.
* * * * *
8. Section 2436.602-4 is revised to read as follows:
2436.602-4 Selection authority.
(a) The final selection decision shall be made by the cognizant
Primary Organization Head in headquarters, or field program office
head.
PART 2439--ACQUISITION OF INFORMATION TECHNOLOGY
9. The authority citation for part 2439 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
10. In section 2439.107, a new paragraph (b) is added to read as
follows:
2439.107 Contract clauses.
* * * * *
(b) The contracting officer shall insert the clause at 48 CFR
2452.239-71, Information Technology Virus Security, in solicitations
and contracts under which the contractor will provide information
technology hardware, software or data products.
PART 2442--CONTRACT ADMINISTRATION
11. The authority citation for part 2442 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
12. Section 2442.1106 is revised to read as follows:
2442.1106 Reporting requirements.
(a) All contracts for professional or technical services of a
developmental or advisory nature exceeding $500,000 shall include a
requirement for the use of systematic project planning and progress
reporting. The Contracting Officer may require the use of such project
planning and reporting systems for contracts below the above threshold.
13. Section 2442.1107 is revised to read as follows:
2442.1107 Contract clause.
The Contracting Officer shall insert a clause substantially the
same as the clause at 48 CFR 2452.242-71, Project Management System, in
solicitations and contracts for services as described in 2442.1106
expected to exceed $500,000. Use of this clause below the stated
threshold is at the discretion of the Contracting Officer.
PART 2452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
14. The authority citation for part 2452 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
2452.203-71 [Removed]
15. Section 2452.203-71 is removed.
16. Section 2452.209-70 is revised to read as follows:
2452.209-70 Potential organizational conflicts of interest.
As prescribed in 2409.507-1, the Contracting Officer may insert a
provision substantially the same as follows in solicitations:
Potential Organizational Conflicts of Interest (*** 1999)
(a) The Contracting Officer has determined that the proposed
contract contains a potential organizational conflict of interest.
Offerors are directed to FAR subpart 9.5 for detailed information
concerning organizational conflicts of interest.
(b) The nature of the potential conflict of interest is
[Contracting Officer insert description]:
(c) Offerors shall provide a statement which describes concisely
all relevant facts concerning any past, present or planned interest
(financial, contractual, organizational, or otherwise) relating to
the work to be performed under the proposed contract and bearing on
whether the offeror has a possible organizational conflict of
interest with respect to:
(1) Being able to render impartial, technically sound, and
objective assistance or advice, or
(2) Being given an unfair competitive advantage. The offeror may
also provide relevant facts that show how its organizational
structure and/or management systems limit its knowledge of possible
organizational conflicts of interest relating to other divisions or
sections of the organization and how that structure or system would
avoid or mitigate such organizational conflict.
(d) No award shall be made until any potential conflict of
interest has been neutralized or mitigated to the satisfaction of
the Contracting Officer.
(e) Refusal to provide the requested information or the willful
misrepresentation of any relevant information by an offeror shall
disqualify the offeror from further consideration for award of a
contract under this solicitation.
(f) If the Contracting Officer determines that a potential
conflict can be avoided, effectively mitigated, or otherwise
resolved through the inclusion of a special contract clause, the
terms of the clause will be subject to negotiation.
(End of provision)
17. Section 2452.209-71 is revised to read as follows:
2452.209-71 Limitation on future contracts.
As prescribed in 2409.507-2, the Contracting Officer may insert a
clause substantially the same as follows in solicitations and contracts
for services:
Limitation on Future Contracts (**** 1999)
(a) The Contracting Officer has determined that this contract
may give rise to potential organizational conflicts of interest as
defined at FAR subpart 9.5.
(b) The nature of the potential conflict of interest is
[Contracting Officer insert description]:
[[Page 46107]]
(c) If the contractor, under the terms of this contract or
through the performance of tasks pursuant to this contract, is
required to develop specifications or statements of work that are to
be incorporated into a solicitation, the contractor shall be
ineligible to perform the work described in that solicitation as a
prime or first-tier subcontractor under any ensuing HUD contract.
(d) Other restrictions--[Contracting Officer insert description]
(e) The restrictions imposed by this clause shall remain in
effect until [Contracting Officer insert period or date].
(End of clause)
18. A new section 2452.239-71 is added to read as follows:
2452.239-71 Information technology virus security.
As prescribed in 2439.107(b), insert the following clause:
Information Technology Virus Security (****, 1999)
(a) The contractor hereby agrees to make every reasonable effort
to deliver information technology products to HUD free of known
computer viruses. The contractor shall be responsible for examining
all such products prior to their delivery to HUD using software
tools and processes capable of detecting all known viruses.
(b) The contractor shall include the following statement on
deliveries of hardware, software, and data products, including
diskettes, made under this contract:
[product description, part/catalog number, other identifier, and
serial number, if any]
``This product has been scanned for known viruses using [name of
virus-screening product, including version number, if any] and is
certified to be free of known viruses at the time of delivery.''
(c) The Contracting Officer may assess monetary damages against
the contractor sufficient to compensate HUD for actual or estimated
costs resulting from computer virus damage or malicious destruction
of computer information arising from the contractor's failure to
take adequate precautions to preclude delivery of virus-containing
products in the delivery of hardware, software, or data on diskettes
under this contract.
(d) This clause shall not subrogate the rights of the Government
under any other clause of this contract.
(End of clause)
19. Section 2452.242-71 is revised to read as follows:
2452.242-71 Project management system.
As prescribed in 2442.1107, insert the following clause:
Project Management System (**** 1999)
(a) Within the time period specified elsewhere in this contract,
or as directed by the Contracting Officer, the Contractor shall
provide to the GTR and Contracting Officer a project management
baseline plan and routine reports showing the Contractor's actual
progress against the baseline plan.
(b) The project management system shall consist of two parts:
(1) Baseline plan. The baseline plan shall consist of--
(i) A narrative portion that:
(A) Identifies each task and significant activity required for
completing the contract work, critical path activities, task
dependencies, task milestones, and related deliverables;
(B) Describes the project schedule, including the period of time
needed to accomplish each task and activity (see i(B));
(C) Describes staff (e.g., hours per individual), financial, and
other resources allocated to each task and significant activity; and
(D) Provides the rationale for project organization and resource
allocation.
(ii) A graphic portion showing:
(A) Cumulative planned or budgeted costs of work scheduled for
each reporting period over the life of the contract; and
(B) The planned start and completion dates of all planned and
budgeted tasks and activities.
(2) Progress reports. Progress reports shall consist of:
(i) A narrative portion that:
(A) Provides a brief, concise summary of technical progress made
and the costs incurred for each task during the reporting period;
and
(B) Identifies significant problems, or potential problems,
their causes, proposed corrective actions, and the net effect on
contract completion.
(ii) A graphic portion showing:
(A) The schedule status and degree of completion of the tasks,
activities and deliverables shown in the baseline plan for the
reporting period, including actual start and completion dates for
all tasks and activities in the baseline plan;
(B) The costs incurred during the reporting period, the current
total amount of costs incurred through the end date of the reporting
period for budgeted work, and the projected costs required to
complete the work under the contract.
(c) The formats, forms and/or software to be used for the
project management system under this contract shall be [Contracting
Officer insert appropriate language--``as prescribed in the
schedule;'' ``a format, forms and/or software designated by the
GTR;'' or, ``the contractor's own format, forms and/or software,
subject to the approval of the GTR.'']
(End of clause)
PART 2453--FORMS
20. The authority citation for part 2453 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
2453.242-70 [Removed]
21. Section 2453.242-70 is removed.
2453.242-71 [Removed]
22. Section 2453.242-71 is removed.
Dated: June 7, 1999.
V. Stephen Carberry,
Chief Procurement Officer.
[FR Doc. 99-21078 Filed 8-20-99; 8:45 am]
BILLING CODE 4210-01-P