[Federal Register Volume 65, Number 14 (Friday, January 21, 2000)]
[Rules and Regulations]
[Pages 3576-3578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-531]



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Part V





Department of Housing and Urban Development





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48 CFR Part 2403, et al.



HUD Acquisition Regulation; Miscellaneous Revisions; Final Rule

  Federal Register / Vol. 65, No. 14 / Friday, January 21, 2000 / Rules 
and Regulations  

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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-F-02]
RIN 2535-AA25


HUD Acquisition Regulation; Miscellaneous Revisions

AGENCY:  Office of the Chief Procurement Officer (CPO) DHUD.

ACTION:  Final rule.

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SUMMARY:  This rule amends 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 and implements 
miscellaneous HUD procurement rules.

DATES: Effective Date: This rule is effective February 22, 2000, except 
for the addition of a part heading and authority citation for part 
2439, which is effective September 22, 1999.

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, 
telephone (206) 220-5122 extension 3450, FAX (206) 220-5406. Persons 
with hearing or speech impairments may access that number via TTY by 
calling the Federal Information Relay Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION: On August 23, 1999, at 64 FR 46103, the 
Department of Housing and Urban Development published a proposed rule 
making miscellaneous changes to the HUD Acquisition Regulation (HUDAR) 
and invited public comments for 60 days. No public comments were 
received on the proposed rule. HUD is adopting as final the proposed 
rule without change.

Findings and Certificates

Paperwork Reduction Act Statement

    The information collection requirements contained in the HUDAR have 
been approved by the Office of Management and Budget (OMB) in 
accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520), and have been assigned OMB approval number 2535-0091. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless the collection displays a valid 
control number.

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 rule will not have a significant economic impact on 
a substantial number of small entities. Small businesses were 
specifically invited, however, to comment on whether this rule would 
significantly affect them, and persons were invited to submit comments 
according to the instructions in the DATES and COMMENTS sections in the 
preamble of the proposed rule. No comments were received.

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 13132, Federalism

    This final rule does not have federalism implications and does not 
impose substantial direct compliance costs on State and local 
governments or preempt State law within the meaning of Executive Order 
13132 (entitled ``Federalism'').

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 regulation.

    1. The authority citation for part 2403 continues to read as 
follows:

    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.
* * * * *

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    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.

    9. A part heading and an authority citation are added for part 2439 
reading as follows:

PART 2439--ACQUISITION OF INFORMATION TECHNOLOGY

    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

(Feb. 2000)

    (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

(Feb. 2000)

    (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]:
    (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

(Feb. 2000)

    (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.

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    (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

(Feb. 2000)

    (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: December 30, 1999.
V. Stephen Carberry,
Chief Procurement Officer.
[FR Doc. 00-531 Filed 1-20-00; 8:45 am]
BILLING CODE 4210-01-P