[Federal Register Volume 74, Number 227 (Friday, November 27, 2009)]
[Rules and Regulations]
[Pages 62396-62472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26948]
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Part II
Department of Health and Human Services
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48 CFR Chapter 3
Health and Human Services Acquisition Regulation; Final Rule
Federal Register / Vol. 74 , No. 227 / Friday, November 27, 2009 /
Rules and Regulations
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
48 CFR Chapter 3
Health and Human Services Acquisition Regulation
AGENCY: Department of Health and Human Services.
ACTION: Issuance of direct final rule and opportunity for comment.
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SUMMARY: The Department of Health and Human Services (HHS) is revising
its Federal Acquisition Regulation (FAR) Supplement--the HHS
Acquisition Regulation (HHSAR) in its entirety to reflect statutory,
FAR, and government-wide and HHS policy changes since the last revision
to the HHSAR in December 2006.
DATES: Comments are due on or before December 28, 2009. If HHS does not
receive adverse comments, this direct final rule will be effective on
January 26, 2010.
ADDRESSES: You may submit comments, identified by docket number or RIN
number and title, by any of the following four methods:
Access the Federal eRulemaking Portal: [http://www.regulations.gov], and follow the instructions;
Mail them to: Cheryl Howe, Procurement Analyst, U.S.
Department of Health and Human Services, Office of the Assistant
Secretary for Financial Resources, Office of Grants and Acquisition
Policy and Accountability, Division of Acquisition, Room 336-E, Hubert
Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201;
E-mail them to [email protected]; or
Via facsimile to 202-690-8772.
Due to potential delays in receipt and processing of mail sent through
the U.S. Postal Service, respondents are encouraged to submit comments
electronically to ensure timely receipt. HHS cannot guarantee that
comments mailed will be received before the comment closing date.
If providing comments via e-mail, please include ``HHS Acquisition
Regulation'' in the subject line of your e-mail message. Also, please
include the full body of your comments in the text of the electronic
message, as well as in an attachment, and include your name, title,
organization, postal address, telephone number, and e-mail address in
the text of the message.
Instructions: All comments or submissions must include the agency
name and docket number or Regulatory Information Number (RIN) for this
Federal Register document. The policy is to make comments and other
submissions available for public viewing on the Internet at http://regulations.gov. These submissions are published just as they are
received without changes or deletions of information, including any
personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Cheryl Howe, Procurement Analyst, U.S.
Department of Health and Human Services, Office of the Assistant
Secretary for Financial Resources, Office of Grants and Acquisition
Policy and Accountability, Division of Acquisition, telephone (202)
690-5552.
SUPPLEMENTARY INFORMATION:
I. Background
The Department of Health and Human Services (HHS) is revising the
entire HHSAR (48 CFR chapter 3, parts 301 through 370) to reflect
changes since the last revision was published in the Federal Register
in December 2006. The decision to revise the document in its entirety
is based on the number of changes rather than their collective
substance.
The amendments generally fall into several categories: (1) Changes
to make the document easier to read; (2) changes to reflect internal
procedural matters which are administrative in nature and which will
not have a major effect on the general public or on contractors or
offerors supporting HHS acquisition programs; (3) changes which HHS
previously issued on an interim basis (and posted on its publicly
available Web site), following coordination with the HHS Operating
Divisions' (OPDIVs) Heads of Contracting Activity; (4) changes that
involve implementation of statutes or government-wide mandates enacted
or issued since December 2006; (5) necessary conforming changes, such
as addition of new or revised definitions; and (6) deletion of outdated
material.
The majority of the HHSAR revisions fall into the first category,
i.e., they are editorial and include (1) using plain English, such as
using active rather than passive voice; (2) standardizing terminology
usage and formatting; (3) making minor adjustments to reflect current
internal coordination procedures among departmental organizations; (4)
citing current titles for various acquisition officials and
organizations; and (5) providing a table that specifies the
abbreviations and acronyms commonly used throughout the HHSAR.
II. Summary of Key Changes
The following summarizes changes that involve implementation of
statutes or government-wide mandates enacted or issued since December
2006. The editorial changes are not individually summarized.
A. Federal-Wide and HHS Acquisition Certification Programs
The HHSAR coverage in Subpart 301.6 of requirements for training
and certification of acquisition officials, as well appointment of
Contracting Officers, has been rewritten to reflect the HHS
implementation of the Federal Acquisition Certification Programs for
contracting staff (FAC-C) (based on guidance provided by the Office of
Federal Procurement Policy (OFPP) in April, 2005); Contracting
Officer's Technical Representatives (FAC-COTR) (based on the
government-wide COTR certification standards established by OFPP in
November, 2007), and Program/Project Managers (FAC-P/PM) (in response
to the Services Acquisition Reform Act of 2003 (SARA), Public Law 108-
136, and the requirements established by OFPP in April, 2007).
Implementation of the FAC-COTR program also has resulted in HHS
changing the terminology it uses to describe the official who
represents the requiring office after award. Where previously, HHS used
only one term--Project Officer--to signify the person responsible for
the pre-award and post-award responsibilities of the requiring office,
the HHSAR now distinguishes between the pre-award responsibilities of
the Project Officer and the post-award responsibilities of the COTR,
even if the same individual performs both sets of responsibilities.
These certification programs establish prerequisites for those who
seek certification, as well as for others involved in the acquisition
process. For example, HHS added a new section 301.605, Contracting
Officer designation of Contracting Officer Technical Representative, to
specify Contracting Officer responsibilities for designation of a COTR,
including documenting that a proposed COTR meets certification
requirements.
Subpart 301 also addresses the HHS-unique simplified acquisition
certification program (SAC-C); HHS-specific training requirements,
including those for purchase card holders; and prerequisites and
authorities for issuance of Contracting Officer warrants.
[[Page 62397]]
B. Improvements in the Quality of Contract Data
Consistent with the statutory requirements of the Federal Funding
and Transparency Act of 2006 (Pub. L. 109-282) and the American
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) and OFPP's
initiative to improve the quality and timeliness of the award
information stored in the Federal Procurement Data System--Next
Generation, HHS is making efforts to improve the quality and timeliness
of its contract data as reported in FPDS-NG, USA.Spending.gov, and
Recovery.gov. To accomplish this, in Subpart 304.6, HHS has established
clear lines of responsibility and accountability for the quality and
timeliness of contract data.
C. Internal Initiatives To Provide Common Formats and Templates
A new HHSAR Subpart--302.71--lists the areas where HHS has
developed standards for documentation or approaches that provide
consistency across the HHS OPDIVs. These internal business standards
encompass: Acquisition planning, competition reporting, the
organization and content of contract files, and market research
notices.
D. Homeland Security Presidential Directive-12 (HSPD-12)
A new Subpart 304.13, Personal Identity Verification, and section
304.1300, Policy, have been added to implement HSPD-12 in HHS. The HHS
implementation includes applicable solicitation provisions and contract
clauses and (1) reflects the implementing guidance established by
Office of Management and Budget Memoranda M-05-24 and M-06-18, Federal
Information Processing Standard (FIPS) Publication 201, and Federal
Acquisition Regulation (FAR) 4.13; and (2) provides a consistent and
systematic approach to ensure the security of HHS facilities and
information systems.
E. Competition and Acquisition Planning
Consistent with government-wide efforts to increase competition, in
Parts 306, 307, and 308, as applicable, HHS included HHSAR coverage
concerning (1) appropriate use of sources sought notices (Research and
development (R&D) and non-R&D and small businesses) and requests for
information (2) content requirements for Justifications for Other Than
Full and Open Competition (JOFOCs) and Limited Source Justifications
(LSJs), (3) the requirement to use a standard JOFOC and LSJ format, and
(4) the Contracting Officer's approval authority for JOFOCs and LSJs
for acquisitions exceeding $100,000.
HHS also--
--Specified that each HHS OPDIV competition advocate must prepare an
annual Competition Advocate Report; and provided a standard format for
the report's preparation.
--Updated the requirements for preparing an Annual Acquisition Plan and
provided a standard template for the plan's preparation.
--Established a standard format for development of an Acquisition Plan;
and provided procedures for the plan's review, coordination, and
approval.
--Addressed preparation and approval of a LSJ for acquisitions awarded
under the General Services Administration multiple award schedule
program; and provided a standard format for preparing an LSJ.
--Addressed preparation and approval of an acquisition strategy for
major information technology capital investments and, as applicable,
other major investments.
F. Section 508 Electronic Information Technology Accessibility
Standards
In a new Subpart 315.70, HHS added coverage for acquisition of
electronic information technology (EIT) products and services to
implement the requirements of Section 508 of the Rehabilitation Act of
1973 [29 U.S.C. 794(d)], as amended by the Workforce Investment Act of
1998. In that subpart and, as a result of conforming changes in other
parts of the HHSAR, HHS established a policy preference for
commercially available products; indicated what must be addressed in
solicitations, contracts, and orders, and added documentation and
contract administration requirements that relate to the Section 508
accessibility standards and requirements.
G. Multi-Year Contracting and Awards Made During a Continuing
Resolution
HHS added a new Subpart 317.1 to address its policy on multi-year
contracting and amended Subpart 332.7 to provide coverage regarding
awards made during a continuing resolution.
H. Multi-Agency and Intra-Agency Contracts
HHS added a new subpart 317.70 to address its expectations
regarding the use of intra-agency and multi-agency contracts. Such
contracting has been the subject of audit scrutiny and has been
addressed by OFPP. As a result, to avoid possible misuse, HHS is
stating the conditions for use of such vehicles within HHS.
I. Green Purchasing Requirements
HHS added a new subpart 323.71 to establish its requirements for
green purchasing.
J. Earned Value Management
HHS added a new Subpart 334.2 to implement the FAR coverage of
earned value management (EVM), including: Use of full and partial EVM;
use of solicitation provisions and contract clauses addressing
documentation offerors must provide to demonstrate compliance with EVM
system requirements; and criteria for use of pre-award or post-award
integrated baseline reviews.
K. Other Changes
Under section 331.101-70, Salary Rate Limitation, HHS provided a
revised prescription for use of, and made minor revisions to, the
Salary Rate Limitation clause in 352.231-70.
HHS added the following coverage in Part 339 for information
technology-related acquisition:
--A new subpart, 339.70, to address the use of General Services
Administration Blanket Purchase Agreements for the acquisition of
independent risk analysis services, and
--A new subpart 339.1 that provides standards for security
configuration, encryption, and information security.
HHS revised the coverage in Part 333 related to internal handling of
protests to specify revised legal review, concurrence, and approval
procedures related to protests to HHS and the Government Accountability
Office before and after award.
HHS added language in section 319.270-1 concerning use of the
mentor-protege program in HHS.
HHS added a new subpart 322.8 to provide a contract clause
regarding contractor cooperation in equal employment opportunity
investigations.
HHS added a new subpart 370.6 to provide guidance, including a
contract clause, concerning conference funding, sponsorship, and
disclaimers.
HHS added a new subpart 370.7 to provide a solicitation provision
and a contract clause to be used (i) in connection with the
implementation of HIV/AIDS programs under the President's Emergency
Plan for AIDS Relief; or (ii) when the contractor will receive funding
under the United States Leadership Against HIV/AIDS, Tuberculosis and
Malaria Act of 2003.
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III. Procedural Review Requirements
A. Executive Order 12866, Regulatory Planning and Review
It has been determined that this revision of the HHSAR is not a
significant regulatory action. The rule does not--
(1) Have an annual effect on the economy of $100 million or more or
adversely affect, in a material way, the economy; a section of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another Agency;
(3) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
Executive Order 12866.
B. Unfunded Mandates Reform Act [2 U.S.C. 1501(7)]
It has been certified that this revision of the HHSAR does not
contain a Federal mandate that may result in the expenditure by State,
local, and Tribal governments, in aggregate, or by the private sector,
of $100 million or more in any one year.
C. Regulatory Flexibility Act (5 U.S.C. 601)
The Regulatory Flexibility Act requires that a Federal agency
prepare a regulatory flexibility analysis for any rule for which the
agency is required to publish a general notice of rulemaking. This rule
consists of a general statement of policies and procedures and amends
HHS regulations for contracts. Each part of today's direct final rule
is exempt from the requirement to publish a general notice of proposed
rulemaking under the Administrative Procedure Act, 5 U.S.C. 553(a)(2).
Therefore, the Regulatory Flexibility Act does not apply to this
rulemaking.
D. Paperwork Reduction Act (44 U.S.C. 35)
It has been determined that this rule does not impose any reporting
or recordkeeping requirements under the Paperwork Reduction Act beyond
those provided in the FAR.
E. Small Business Regulatory Enforcement Fairness Act
As required by the Small Business Regulatory Enforcement Fairness
Act, 5 U.S.C. 801, HHS has determined that this rule is not a major
rule under 5 U.S.C. 801(2).
F. Executive Order 12988, Civil Justice Reform
Each agency promulgating new regulations shall adhere to the
following requirements: The agency's proposed regulations shall (1) be
reviewed by the agency to eliminate drafting errors and ambiguity; (2)
be written to minimize litigation; (3) provide a clear legal standard
for affected conduct rather than a general standard, and (4) promote
simplification and burden reduction. HHS determined that this rule
meets these standards.
List of Subjects in 48 CFR Chapter 3, Parts 301-370
Government procurement.
0
For the reasons stated in the preamble, HHS revises 48 CFR Chapter 3,
parts 301 through 370, to read as follows:
Title 48--Federal Acquisition Regulations System
CHAPTER 3--HEALTH AND HUMAN SERVICES
SUBCHAPTER A--GENERAL
PART 301--HHS ACQUISITION REGULATION SYSTEM
PART 302--DEFINITIONS OF WORDS AND TERMS
PART 303--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
PART 304--ADMINISTRATIVE MATTERS
SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
PART 305--PUBLICIZING CONTRACT ACTIONS
PART 306--COMPETITION REQUIREMENTS
PART 307--ACQUISITION PLANNING
PART 308--REQUIRED SOURCES OF SUPPLIES AND SERVICES
PART 309--CONTRACTOR QUALIFICATIONS
PART 310--MARKET RESEARCH
PART 311--DESCRIBING AGENCY NEEDS
PART 312--ACQUISITION OF COMMERCIAL ITEMS
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
PART 313--SIMPLIFIED ACQUISITION PROCEDURES
PART 314--SEALED BIDDING
PART 315--CONTRACTING BY NEGOTIATION
PART 316--TYPES OF CONTRACTS
PART 317--SPECIAL CONTRACTING METHODS
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
PART 319--SMALL BUSINESS PROGRAMS
PART 322--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
PART 323--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
PART 324--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
PART 327--PATENTS, DATA, AND COPYRIGHTS
PART 328--BONDS AND INSURANCE
PART 330--COST ACCOUNTING STANDARDS
PART 331--CONTRACT COST PRINCIPLES AND PROCEDURES
PART 332--CONTRACT FINANCING
PART 333--PROTESTS, DISPUTES, AND APPEALS
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
PART 334--MAJOR SYSTEM ACQUISITION
PART 335--RESEARCH AND DEVELOPMENT CONTRACTING
PART 337--SERVICE CONTRACTING--GENERAL
PART 339--ACQUISITION OF INFORMATION TECHNOLOGY
SUBCHAPTER G--CONTRACT MANAGEMENT
PART 342--CONTRACT ADMINISTRATION
SUBCHAPTER H--CLAUSES AND FORMS
PART 352--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
PART 353--FORMS
SUBCHAPTERS I, J, K AND L ARE RESERVED
SUBCHAPTER M--HHS SUPPLEMENTATIONS
PART 370--SPECIAL PROGRAMS AFFECTING ACQUISITION
SUBCHAPTER A--GENERAL
PART 301--HHS ACQUISITION REGULATION SYSTEM
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.
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Subpart 301.2--Administration
301.270 Executive Committee for Acquisition.
Subpart 301.4--Deviations From the FAR
301.403 Individual deviations.
301.404 Class deviations.
301.470 Procedure.
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.
301.603-2 Selection and appointment.
301.603-3 Interim appointments.
301.603-4 Termination of appointments.
301.603-70 Delegation of Contracting Officer responsibilities.
301.603-71 Waivers to warrant standards.
301.603-72 FAC-C and HHS SAC certification requirements.
301.603-73 Additional HHS training requirements.
301.603-74 Requirement for retention of FAC-C and HHS SAC
certification.
301.604 Training and certification of Contracting Officers'
Technical Representatives.
301.604-70 General.
301.604-71 HCA authorities and responsibilities.
301.604-72 Requirements for certification maintenance.
301.604-73 Certification policy exception.
301.604-74 Additional COTR training requirements.
301.605 Contracting Officer designation of Contracting Officer
Technical Representative.
301.606 Training requirements for Project Officers.
301.606-70 General.
301.606-71 Project Officer training.
301.606-72 Delegation of authority to HCAs.
301.606-73 Training policy exception.
301.606-74 Additional Project Officer training requirements.
301.607 Certification of Program and Project Managers.
301.607-70 General.
301.607-71 FAC-P/PM levels and requirements.
301.607-72 Applicability.
301.607-73 Certification waivers.
301.607-74 Certification transfers.
301.607-75 Maintenance of FAC-P/PM certification.
301.607-76 FAC-P/PM application process.
301.607-77 Input and maintenance of FAC-P/PM information.
301.607-78 Governance.
301.607-79 Contracting Officer designation of a Program/Project
Manager as the Contracting Officer's Technical Representative.
301.608 Training Requirements for Purchase Cardholders, Approving
Officials, and Agency/Organization Program Coordinators.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
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 conform to the Federal Acquisition Regulation (FAR)
System.
(b) The HHSAR implements FAR policies and procedures and provides
additional policies and procedures that supplement the FAR.
(c) The HHSAR contains HHS policies and procedures that govern the
acquisition process or otherwise control acquisition relationships
between HHS' contracting activities and contractors.
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. 486(c), as delegated by the Secretary.
(c) The HHSAR is issued in the Code of Federal Regulations (CFR) as
Chapter 3 of Title 48, Department of Health and Human Services
Acquisition Regulation. It may be referenced as ``48 CFR Chapter 3.''
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:
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OMB control
HHSAR segment No. No.
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315.4...................................................... 0990-0139
342.7101................................................... 0990-0131
352.233-70................................................. 0990-0133
352.270-1.................................................. 0990-0129
352.270-2.................................................. 0990-0129
352.270-3.................................................. 0990-0129
352.270-5.................................................. 0990-0130
352.270-8.................................................. 0990-0128
352.270-9.................................................. 0990-0128
370.1...................................................... 0990-0129
370.2...................................................... 0990-0129
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(c) The Contracting Officer shall insert the clause in 352.201-70,
Paperwork Reduction Act, in solicitations, contracts, and orders that
include a requirement to collect the same information from 10 or more
persons.
Subpart 301.2--Administration
301.270 Executive Committee for Acquisition.
(a) The Associate Deputy Assistant Secretary for Acquisition
(Associate DAS for Acquisition) has established the Executive Committee
for Acquisition (ECA) to facilitate the planning, development, and
implementation of HHS acquisition policies and procedures and to share
successful acquisition practices.
(b) The ECA consists of members and alternates from the following
organizations:
(1) ASFR/Office of Grants and Acquisition Policy and Accountability
(OGAPA)/Division of Acquisition (DA).
(2) Agency for Healthcare Research and Quality (AHRQ).
(3) Biomedical Advanced Research and Development Authority (BARDA).
(4) Centers for Disease Control and Prevention (CDC).
(5) Centers for Medicare and Medicaid Services (CMS).
(6) Food and Drug Administration (FDA).
(7) Health Resources and Services Administration (HRSA).
(8) Indian Health Service (IHS).
(9) National Institutes of Health (NIH).
(10) Program Support Center (PSC).
(11) Substance Abuse and Mental Health Services Administration
(SAMHSA).
(c) The Associate DAS for Acquisition is the Chair of the ECA. The
Chair will call all meetings and direct all ECA activities.
Subpart 301.4--Deviations From the FAR
301.403 Individual deviations.
Contracting activities shall prepare requests for individual
deviations to either the FAR or HHSAR in accordance with 301.470.
301.404 Class deviations.
Contracting activities shall prepare requests for class deviations
to either the FAR or HHSAR in accordance with 301.470.
301.470 Procedure.
(a) Contracting activities shall prepare deviation requests in
memorandum form and forward them through the Head of the Contracting
Activity (HCA) to the Associate DAS for Acquisition. The Associate DAS
for Acquisition (non-delegable) is the official authorized to approve
all deviation requests.
[[Page 62400]]
Contracting activities may request a deviation telephonically or by e-
mail in an exigent situation, but shall confirm the request by
memorandum as soon as possible.
(b) A deviation request shall clearly set forth the--
(1) Nature of the deviation, including what contract(s)/
contractor(s) is involved;
(2) Identification of the FAR or HHSAR citation from which the
deviation is needed;
(3) Circumstances under which the deviation will be used;
(4) Intended effect of the deviation;
(5) Period of applicability;
(6) Rationale for the deviation (Note: The Contracting Officer
shall include a copy of pertinent background papers, such as a
contractor's request, as part of the deviation request.); and
(7) Suggested wording for the deviation, if applicable.
Subpart 301.6--Career Development, Contracting Authority, and
Responsibilities
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. However, an authorized official
may later ratify and execute otherwise proper contracts that were made
by individuals without contracting authority or by Contracting Officers
in excess of their delegated authority. The ratification shall be in
the form of a written document that clearly states that ratification of
a previously unauthorized act is intended.
(2) The HCA is the official authorized to ratify an unauthorized
commitment--but see paragraph (b)(3) of this section.
(3) The HCA may redelegate ratification authority for actions up to
$100,000 to the Chief of the Contracting Office (CCO). No other
redelegations are authorized.
(c) Limitations.
(5) The concurrence of legal counsel concerning an unauthorized
commitment is optional. If a contracting activity determines that a
legal review is necessary, the HCA or CCO shall coordinate the request
for ratification with the Office of General Counsel (OGC), General Law
Division (GLD).
(e) Procedures.
(1) The individual who is responsible for the unauthorized
commitment shall provide the reviewing Contracting Officer all records
and documents concerning the commitment and a complete written
statement of facts, including a description of the requirement; the
estimated or agreed upon price; the funds citation; an explanation of
why the contracting office was not used and why the proposed contractor
was selected; a list of other sources considered; and a statement as to
whether the contractor has commenced work or an item has been
delivered.
(2) The Contracting Officer shall review the submitted material
and, if the Contracting Officer determines that the ratification
request has merit, prepare it for ratification. The Contracting Officer
shall forward the ratification document and related materials to the
HCA or CCO, as appropriate, with any comments or information which the
approving official should consider in evaluating the ratification
request.
(3) If the HCA or CCO approves the ratification request, the
Contracting Officer shall issue a purchase order or contract, as
appropriate, upon return of the approved ratification document and
file.
301.603 Selection, appointment, and termination of appointment of
Contracting Officers.
301.603-1 General.
(a) The HCA (non-delegable) shall select, appoint, and terminate
the appointment of Contracting Officers--i.e., those individuals who
are authorized to obligate the Government to the expenditure of funds
for contracts and orders with dollar values that exceed (or are
expected to exceed) the micro-purchase threshold. The procedures for
selecting and appointing Contracting Officers apply to HHS employees.
HCAs may not issue HHS Contracting Officer warrants to contractor
personnel. OPDIVs shall follow local procedures in the event that the
signature of another authorized official, in addition to that of the
HCA, is required to appoint or terminate the appointment of Contracting
Officers.
(b) The HCA shall use Standard Form (SF) 1402, ``Certificate of
Appointment,'' (also known as a warrant) to appoint personnel, whether
in the General Schedule (GS) 1102 series or other series, as
Contracting Officers. The SF 1402 shall indicate the Contracting
Officer's warrant level--i.e., maximum dollar signature authority
(e.g., $1 million or ``unlimited'') and any other limitations or
restrictions. The HCA shall make changes to a Contracting Officer
appointment (other than a termination of an appointment as provided in
301.603-4) by issuing a revised SF 1402. FAR 1.603-1 prescribes the
requirements for preparing and maintaining Contracting Officer
warrants.
(c) Before an HCA may appoint an individual as a Contracting
Officer, the individual must be certified in accordance with either the
Federal Acquisition Certification in Contracting (FAC-C) program or the
HHS Simplified Acquisition Certification (SAC) program, as appropriate,
at the level required for the warrant authority requested. See 301.603-
72 and the HHS Contracting Workforce Training and Certification
Handbook.
(d) The dollar amount of an individual transaction determines
whether a Contracting Officer has the authority to sign it in
accordance with the delegated authority specified on the SF 1402. For
new or follow-on awards, the dollar amount of an individual transaction
is the amount obligated at the time of contract or order award plus any
potential option amounts or future funding amounts established by the
transaction. However, under an existing contract or order, when an
option is subsequently exercised or a contact or order is otherwise
modified to add funding, the dollar amount of the modification
(individual transaction) determines whether a Contracting Officer has
the necessary delegated authority to sign it.
(e) For individuals that will exercise acquisition authorities
(other than solely purchase card authorities) at or below the micro-
purchase threshold, the HCA may--
(1) Use a document other than the SF 1402, such as a memorandum,
that indicates a maximum dollar signature authority for individual
transactions; and
(2) Determine training requirements for individuals who will
exercise acquisition authorities at dollar levels below the micro-
purchase threshold level.
301.603-2 Selection and appointment.
Contracting activities shall provide nominations for appointment of
Contracting Officers through appropriate acquisition channels to the
HCA for review. The HCA shall appoint an individual as a Contracting
Officer only when a valid organizational need is demonstrated and after
considering such factors as volume of actions, complexity of work, and
structure of the requesting organization. The HCA shall also ensure
that a Contracting Officer candidate meets the FAC-C or HHS SAC
certification requirements, as
[[Page 62401]]
appropriate. Consistent with FAR 1.603-2, the HCA shall determine the
documentation required when the requested appointment and authority
will not exceed the micro-purchase threshold.
301.603-3 Interim appointments.
If it is essential to appoint an individual as a Contracting
Officer who does not yet fully meet the FAC-C or HHS SAC certification
requirements for the signature authority sought, the HCA (non-
delegable) may make an interim appointment for up to 2 years. If an
extension of time has been granted, but the individual does not
complete the certification requirements by the extended date, the HCA's
approval for the interim appointment will automatically terminate on
that date.
301.603-4 Termination of appointments.
The HCA shall terminate or revoke Contracting Officer appointments
in accordance with FAR 1.603-4.
301.603-70 Delegation of Contracting Officer responsibilities.
(a) Contracting Officers may re-delegate their acquisition
responsibilities that do not involve the obligation or deobligation of
funds, but involve the expenditure of previously obligated funds (such
as approval of contractor scientific meeting travel and subcontract
consent) to acquisition staff (for example, those in the GS-1100
series) by means of a written memorandum that clearly delineates the
delegation and its limits. See 301.604 for responsibilities that
Contracting Officers may delegate to technical personnel.
(b) Contracting Officers may designate individuals as ordering or
approving officials to make purchases or place/approve orders under
blanket purchase agreements (BPAs), indefinite-delivery, indefinite
quantity (IDIQ) contracts, or other pre-established mechanisms.
Ordering officials are not Contracting Officers.
301.603-71 Waivers to warrant standards.
There may be an unusual circumstance that requires issuance of a
warrant to an individual who does not fully meet the FAC-C or HHS SAC
certification program requirements. Contracting activities shall
provide any request for a waiver of the FAC-C program requirements and
policies in writing to the Senior Procurement Executive (SPE), through
the HCA, for review and approval. The SPE (non-delegable) will either
approve or disapprove in writing the request for waiver. The HCA (non-
delegable) may approve or disapprove a waiver of the HHS SAC program
requirements.
301.603-72 FAC-C and HHS SAC certification requirements.
(a) The FAC-C certification program is available to all acquisition
staff who are/will be involved as Contracting Officers or Contract
Specialists in acquisitions exceeding the simplified acquisition
threshold. Personnel who, as part of prior certification programs, have
completed some or all of the required training or have attained
certification thereunder are not required to re-take training courses,
but shall follow FAC-C training requirements when considering
additional or required core training, if needed. See 301.603-74 for
information regarding retention of certification, including the
requirement to earn continuous learning points (CLPs). FAC-C
certification also does not apply to--
(1) The SPE;
(2) Senior level officials responsible for delegating acquisition
authority;
(3) Personnel who are not in the GS-1102 series whose warrants are
used to acquire emergency goods and services; or
(4) Personnel who are not in the GS-1102 series whose warrants are
so limited as to be outside the scope of this program, as determined by
the Chief Acquisition Officer (CAO). (Note: The HHS CAO has determined
that individuals with warrants which are limited to simplified
acquisitions are deemed to be outside the scope of the FAC-C program.)
(b) HHS does not require personnel with Contracting Officer
warrants issued prior to January 1, 2007 to be FAC-C certified unless
they are seeking a change in authority on or after that date.
Individuals applying for a new Contracting Officer warrant or an
increase in warrant authority on or after January 1, 2007, regardless
of GS series, must be FAC-C certified at the level appropriate for the
warrant authority sought. To obtain an unlimited warrant, FAC-C Level
III certification is required. (Note: New Contracting Officer warrants
are defined in the Office of Federal Procurement Policy's (OFPP's) FAC-
C memorandum, dated January 20, 2006, as warrants issued to employees
for the first time at a department or agency.)
(c) The FAC-C certification is based on three sets of requirements:
Education, training, and experience, and the requirements are
cumulative--i.e., an individual must meet the requirements of each
previous certification level before attaining a higher level
certification. The FAC-C certification requirements, including
additional HHS-specific training requirements for certain types of
acquisitions, are specified in the HHS Contracting Workforce Training
and Certification Handbook.
(d) HHS SAC certification is based on three sets of requirements:
Training, experience, and satisfactory performance rating. Personnel
who are involved in the award of simplified acquisitions must meet the
appropriate HHS SAC certification requirements. (Note: While personnel
who are FAC-C certified are not required to obtain HHS SAC
certification in order to award simplified acquisitions, they should
obtain appropriate training before doing so.) The HHS SAC certification
requirements, including additional HHS-specific training requirements
for certain types of acquisitions, are specified in the HHS Contracting
Workforce Training and Certification Handbook.
301.603-73 Additional HHS training requirements.
HHS acquisition personnel are required to complete, as applicable,
the additional training requirements specified below. These courses may
be used as electives for the purpose of satisfying FAC-C requirements
or as continuous learning for maintenance of FAC-C or SAC
certifications.
(a) Earned value management training. Effective January 1, 2010,
all personnel in the GS-1102 series who are responsible for, or may
become responsible for, the award or administration of any contract to
which earned value management (EVM) is applied pursuant to 334.201(a)
or (b) must successfully complete an EVM training course before they
commence administration of the contract or are authorized to award the
contract. After completion of the initial course, a refresher course is
required every 2 years. This course is in addition to the training
requirements for FAC-C certification at the specified levels.
Determination of course suitability shall be made by the Operating
Division (OPDIV) HCA, in conjunction with HHS' Office of the Chief
Information Officer (OCIO) or Office of Facilities Management and
Policy (OFMP), as appropriate. To be eligible, the basic and refresher
courses must each be 8 hours or more in length.
(b) Performance based acquisition training. Effective January 1,
2010, all GS-1102s, who award or administer service contracts, are
required to complete a Performance-Based Acquisition (PBA) course prior
to assuming such responsibilities. Refresher training in PBA is
required
[[Page 62402]]
every 4 years. To be eligible, a course must be 8 hours or more in
length. Determination of course suitability shall be made by the HCA.
(c) Federal appropriations law training. Effective January 1, 2010,
all GS-1102s and GS-1105s are required to complete both HHS
University's classroom-based and on-line Federal appropriations law
course, by January 1, 2011 (for current employees) and within 1 year of
entering on duty (for new employees). Employees are required to take
the HHS University on-line course as refresher training every year.
Determination of course equivalency shall be made by the HCA.
(d) Green purchasing training. Effective January 1, 2010, all GS-
1102s and GS-1105s are required to complete green purchasing training
by January 1, 2011 (for current employees) and within 1 year of
entering on duty (for new employees). Refresher training is required
every 2 years. To be eligible, a course must be 4 hours or more in
length. Determination of course suitability shall be made by the HCA.
(e) Section 508 training. Effective January 1, 2010 (or when the
HHS Office on Disability so requires), all GS-1102s, GS-1105s, and GS-
1106s who award or administer acquisitions that exceed the micro-
purchase threshold and involve electronic information technology (EIT)
products or services (subject to Section 508 of the Rehabilitation Act
of 1973 and pertinent HHSAR provisions), must complete all applicable
training courses sponsored by the HHS Office on Disability. For
information on frequency, timing, and duration of the training
requirement, personnel shall consult with the HHS Office on Disability.
(f) Training policy exceptions.
(1) EVM training. In the event that there is an urgent requirement
for a Contracting Officer/Contract Specialist to award or administer a
project to which EVM will be applied, and the individual has not yet
met the EVM training requirement, the HCA (non-delegable) may authorize
the individual to perform the position duties, provided that the
individual meets the training requirement within 9 months from the date
of assignment to the contract. If the individual does not complete the
training requirement within 9 months, the HCA's approval for the
individual's assignment to the contract will automatically terminate on
that date. The Contract Specialist is not required to take the class as
long as the Contract Specialist is working under the direction of a
Contracting Officer who has taken an EVM course.
(2) Other additional HHS training. The HCA (non-delegable) may
grant a time extension of up to 9 months to an individual to complete
the PBA, Federal appropriations law, green purchasing, and Section 508
training requirements, including completion of refresher training. If
the individual does not complete the training requirement within the
extension period, the HCA's approval will automatically terminate on
that date.
301.603-74 Requirement for retention of FAC-C and HHS SAC
certification.
To maintain FAC-C certification, all warranted Contracting
Officers, regardless of series, as well as Contract Specialists, must
earn 80 CLPs every 2 years. To maintain HHS SAC certification, all
individuals with delegated Contracting Officer authority, including
those in the GS-1102, GS-1105, GS-1106, and non-1100 series, must earn
a minimum of 40 hours (CLPs) every 2 years after completing all
mandatory training requirements. FAC-C and HHS SAC certification will
expire if the CLPs are not earned every 2 years (from the date of
initial certification or re-certification) and, if applicable, may
result in a loss of warrant authority. (Note: The certification
programs' continuous learning requirement applies to all applicable
personnel, including those who were certified under prior certification
programs.)
301.604 Training and certification of Contracting Officers' Technical
Representatives.
301.604-70 General.
In accordance with the Federal Acquisition Certification for
Contracting Officers' Technical Representatives (FAC-COTR) program, HHS
has established a training program for certification and designation of
personnel as COTRs--see HHS' Federal Acquisition Certification for
Contracting Officers' Technical Representative Program Handbook, dated
January 2009, for information on the methods for earning FAC-COTR
certification. See also 302.101(c) for further information regarding
the definition of a COTR and when designation of a COTR is appropriate.
All references to COTRs also apply to their alternates.
301.604-71 HCA authorities and responsibilities.
(a) HCAs are authorized to determine (1) equivalencies for the
Basic Contracting Officer's Technical Representative Course; (2) course
prerequisites; and (3) approve completion of CLP continuous learning
activities, education, and training for maintenance of COTR
certification. This authority does not apply to EVM training--see
301.603-73. Course equivalencies must meet the Federal Acquisition
Institute's (FAI's) required COTR competencies. HCAs may re-delegate
the authorities in (1) and (2) to OPDIV Acquisition Career Managers
(ACMs) or other comparable officials.
(b) In addition to the authorities specified in 301.604-71(a), HCAs
or their designees (except where the authority is shown as non-
delegable) are responsible for--
(1) Reviewing a candidate's qualifications to be a COTR;
(2) Granting, suspending, denying, and revoking COTR certifications
and their continuance;
(3) Authorizing (non-delegable) an individual to perform COTR
duties on an interim basis for up to 90 days--see 301.604-73; and
(4) Determining (non-delegable) on a case-by-case basis whether to
postpone (for up to 90 days) withdrawal of any interim COTR delegation
for failure of a candidate to qualify for certification--see 301.604-
73.
301.604-72 Requirements for certification maintenance.
Maintaining HHS FAC-COTR certification requires at least 40
relevant CLPs every 2 years. See Appendix A of OFPP's FAC-COTR
memorandum, dated November 26, 2007, and HHS' Federal Acquisition
Certification for Contracting Officers' Technical Representative
Program Handbook, dated January 2009, for information on CLPs.
301.604-73 Certification policy exception.
(a) In the event that an individual who is not currently certified
under HHS' FAC-COTR program is urgently required to serve as a COTR,
the head of the sponsoring program office (Program Manager) or designee
(e.g., the immediate supervisor) may request, and the HCA (non-
delegable) may authorize, the individual to perform the designated
duties on an interim basis for up to 6 months, provided that--
(1) The individual agrees to become certified during that period
and provides evidence of training course registration; and
(2) Prior to assignment to the contract, the individual meets with
the cognizant Contracting Officer to discuss the role and specific
responsibilities of a COTR and the interrelationships, as applicable,
among the Project Officer, Contracting Officer, Program/Project
Manager, and COTR functions.
(b) If an extension has been granted, but the individual does not
complete
[[Page 62403]]
the training by the extended date, the HCA's approval for the
individual's assignment to the contract will automatically terminate on
that date.
301.604-74 Additional COTR training requirements.
HHS COTRs are required to complete, as applicable, the training
requirements specified below.
(a) Earned value management training. Effective January 1, 2010,
all COTRs assigned to any contract to which EVM is applied pursuant to
334.201(a) or (b) must successfully complete an EVM training course
before assuming their COTR duties. In conjunction with ASFR/OGAPA/DA,
HHS' OCIO [for information technology (IT)] and OFMP (for construction/
facilities), are authorized to designate appropriate EVM courses. At
least 8 hours of EVM training is required every 2 years.
(b) Performance-based acquisition training. Effective January 1,
2010, all COTRs assigned to a service contract are required to
successfully complete a PBA course. To be eligible, a course must be 8
hours or more in length. Determination of course suitability shall be
made by the HCA or designee. At least 8 hours of refresher training in
PBA is required every 4 years.
(c) Federal appropriations law training. Effective January 1, 2010,
all COTRs are required to successfully complete HHS University's
classroom-based or on-line Federal appropriations law course within 3
years after an initial certification is issued. COTRs are required to
take the HHS University on-line appropriations law course as refresher
training every 4 years.
(d) Green purchasing training. Effective January 1, 2010, all COTRs
are required to complete green purchasing training within the first
certification period. The individual's immediate supervisor shall make
the determination of course suitability. At least 4 hours of refresher
training is required every 4 years.
(e) Training policy exceptions.
(1) EVM training. In the event that there is an urgent requirement
for a COTR to administer a contract to which EVM will be applied, and
the individual has not yet met the EVM training requirement, the HCA
(non-delegable) may authorize the individual to perform the position
duties, provided that the individual meets the training requirement
within 9 months from the date of assignment to the contract. If the
individual does not complete the training requirement within 9 months,
the HCA's approval for the individual's assignment to the contract will
automatically terminate on that date. In addition, during any extension
period, the COTR must work under the direction of a COTR, or Program/
Project Manager who has taken an EVM course.
(2) Other additional HHS training. The HCA (non-delegable) may
grant a time extension of up to 9 months to a COTR to complete the PBA,
Federal appropriations law, and green purchasing training requirements,
including completion of refresher training. If the individual does not
complete the training requirement within the extension period, the
HCA's approval will automatically terminate on that date.
301.605 Contracting Officer designation of Contracting Officer
Technical Representative.
The Contracting Officer shall ensure that a COTR candidate is
currently certified under HHS' FAC-COTR program before delegating
authority to that individual to act as a COTR. Even if an individual is
FAC-COTR-certified, a candidate becomes a COTR only when a Contracting
Officer provides in writing the authorities the individual may exercise
for a specified contract or order. Authority for such designations
rests solely with the Contracting Officer. The Contracting Officer
shall retain in the contract or order file the individual's active FAC-
COTR certificate. In the event that the HCA has granted an exception--
see 301.604-73, the Contracting Officer shall include the HCA's
approval in the file.
301.606 Training requirements for Project Officers.
301.606-70 General.
HHS has established a program for training personnel for
certification and designation as Project Officers. See 302.101(g) for
further information regarding the definition of a Project Officer and
when designation of a Project Officer is appropriate. All references to
Project Officers also apply to their alternates. Program Managers or
their designees are authorized to designate individuals to serve as
Project Officers. (Note: If an individual will also serve as the COTR
for a proposed project, the individual shall comply with the training
certification requirements for COTRs--see 301.604.)
301.606-71 Project Officer training.
Before an individual may perform the duties of a Project Officer,
including development of an Acquisition Plan (AP) or other acquisition
request documentation--see 307.71, for a proposed project, the Program
Manager or designee shall designate an individual as a Project Officer
in writing by means of a memorandum to the Project Officer candidate
with a copy to the cognizant Contracting Officer. A Project Officer
must successfully complete HHS University's Basic Contracting Officer's
Technical Representative Course or equivalent and any OPDIV-specific
course prerequisites. The Project Officer must provide a course
completion certificate to the Contracting Officer with any AP or other
acquisition request documentation submitted. See HHS guidance on the
training requirement for technical proposal evaluators in
315.305(a)(3)(ii).
301.606-72 Delegation of authority to HCAs.
HCAs are authorized to determine equivalencies for the Basic
Contracting Officer's Technical Representative Course and any OPDIV-
specific course prerequisites. This authority may be re-delegated to
OPDIV acquisition ACMs or other comparable officials.
301.606-73 Training policy exception.
(a) In the event that an individual who has not successfully
completed the required training course is urgently required to serve as
a Project Officer, the Program Manager or designee may authorize the
individual to perform the designated duties on an interim basis for up
to 6 months, provided that--
(1) The individual agrees to take the Basic Contracting Officer's
Technical Representative course during that period and provides
evidence of course registration; and
(2) The individual meets, prior to assignment to the project, with
the cognizant Contracting Officer to discuss the specific role and
responsibilities of a Project Officer and the interrelationships, as
applicable, among the Project Officer, Contracting Officer, Program/
Project Manager, and COTR functions.
(b) If an extension of time has been granted, but the individual
fails to complete the training by the extended date, the Program
Manager's or designee's approval for the individual's assignment to the
project will automatically terminate on that date.
301.606-74 Additional Project Officer training requirements.
HHS Project Officers are required to complete, as applicable, the
training requirements specified below.
(a) Earned value management training. All Project Officers assigned
to any contract project to which EVM is applied pursuant to 334.201(a)
or (b) must successfully complete an EVM
[[Page 62404]]
training course before assuming their Project Officer duties. In
conjunction with ASFR/OGAPA/DA, HHS' OCIO (for IT) and OFMP (for
construction/facilities) are authorized to designate appropriate EVM
courses.
(b) Performance-based acquisition training. Effective January 1,
2010, all Project Officers assigned to a service contract are required
to successfully complete a PBA course. To be eligible, a course must be
8 hours or more in length. Determination of course suitability shall be
made by the HCA or designee. At least 8 hours of refresher training in
PBA is required every 4 years.
(c) Federal appropriations law training. Effective January 1, 2010,
all Project Officers are required to successfully complete HHS
University's classroom-based or on-line Federal appropriations law
course. Project Officers are required to take the HHS University on-
line appropriations law course as refresher training every 4 years.
(d) Green purchasing training. Effective January 1, 2010, all
Project Officers are required to complete green purchasing training.
The individual's immediate supervisor shall make the determination of
course suitability. At least 4 hours of refresher training is required
every 4 years.
(e) Training policy exceptions.
(1) EVM training. In the event that there is an urgent requirement
to assign a Project Officer to a contract project to which EVM will be
applied, and the individual has not yet met the EVM training
requirement, the HCA (non-delegable) may authorize the individual to
perform the position duties, provided that the individual meets the
training requirement within 3 months from the date of submission of the
AP or other acquisition request documentation to the contracting
office. If the individual does not complete the training requirement
within the extension period, the HCA's approval for the individual's
assignment to the project will automatically terminate on that date. In
addition, during any extension period, the Project Officer must work
under the direction of a Project Officer, COTR, or Program/Project
Manager who has taken an EVM course.
(2) Other additional HHS training. The HCA (non-delegable) may
grant a time extension of up to 9 months to a Project Officer to
complete the PBA, Federal appropriations law, and green purchasing
training requirements, including completion of refresher training. If
the individual does not complete the training requirement within the
extension period, the HCA's approval will automatically terminate on
that date.
301.607 Certification of Program and Project Managers.
301.607-70 General.
In accordance with the Federal Acquisition Certification--Program
and Project Managers (FAC-P/PM) program, HHS has established a
certification program for Program or Project Managers. See HHS' Federal
Acquisition Certification--Program and Project Managers Handbook (P/PM
Handbook) for information on the methods for earning FAC-P/PM
certification.
301.607-71 FAC-P/PM levels and requirements.
(a)(1) The FAC-P/PM certification program specifies three different
levels of certification, depending on the core competency, training,
and experience required to manage different types of acquisitions--
(i) Entry/Apprentice--Level I;
(ii) Mid-level/Journeyman--Level II; and
(iii) Senior/Expert--Level III.
(2) Each FAC-P/PM certification level is independent of the
others--i.e., applicants for the Senior/Expert level need not have been
certified at the Mid-level/Journeyman or Entry/Apprentice levels.
General and specific core competencies, training, and required
experience vary by certification level. (Note: Individuals certified
under the FAC-P/PM program meet the general competency and experience
standards for P/PM certification. However, IT Program and Project
Managers should attain/demonstrate IT-specific P/PM requirements. See
Appendix C, Federal Acquisition Certification--Program and Project
Managers--Information Technology Technical Competencies, in the P/PM
Handbook for additional information.
(b)(1) Competencies. An applicant can satisfy the competency
requirements through:
(i) Successful completion of training;
(ii) Completion of comparable education or certification programs;
(iii) Demonstration of knowledge, skills, and abilities; or
(iv) Any combination of these three.
(2) The FAI describes the following three sets of general core
competencies on its Web site:
(3) General Business Competencies: Includes decision-making,
interpersonal skills, oral communication, team-building, and writing.
(4) Technical Competencies: Includes contracting, financial
management, quality assurance, and risk management.
(5) Essential Competencies and Proficiencies: Includes management
processes, systems engineering, test and evaluation, contracting, and
business.
(6) Specific core competencies also apply to the three
certification levels. See Chapter 2, Federal Acquisition
Certification--Program and Project Managers--Requirements and
Performance Accountability, in the P/PM Handbook for additional
information.
(c) Training. (1) Suggested training includes coursework, varying
from 16-24 hours in duration, in:
(i) Acquisition;
(ii) Project management;
(iii) leadership and interpersonal skills;
(iv) Government-specific training; and
(v) Earned value management and cost estimating.
(2) The depth of the training for each course required may vary by
certification level.
(d) Experience. Experience requirements vary by certification
level. For example, for certification at the Entry/Apprentice--Level I,
at least 1 year of project management experience within the last 5
years is required. The Mid-level/Journeyman--Level II requires at least
2 years of program or project management experience within the last 5
years. The Senior/Expert--Level III requires at least 4 years of
program and project management experience on Federal projects within
the last 5 years.
(e) Additional OPDIV guidance. OPDIVs may issue supplemental
guidance and requirements for selection and assignment of Program and
Project Managers and require additional skills and competencies to meet
organizational or mission needs. However, OPDIVs may not reduce the
requirements specified in the P/PM Handbook.
301.607-72 Applicability.
(a) The FAC-P/PM certification prerequisites and continuous
learning requirements apply to all HHS employees who seek to obtain a
FAC-P/PM certification. Although obtaining a FAC-P/PM certification
qualifies employees to serve as a Program or Project Manager, it does
not ensure their selection or designation as such. (Note: Contractors
and their employees are not eligible to be certified or to serve as
Program or Project Managers.)
(b) Mandatory certification is limited to major and non-major IT
and construction capital investment acquisitions. Consistent with OFPP
guidance, HHS requires FAC-P/PM Level III certification for Program and
[[Page 62405]]
Project Managers responsible for major IT and construction capital
investments--i.e., those requiring preparation of an OMB Exhibit 300,
HHS Form 300, or equivalent. An individual must obtain FAC-P/PM Level
III certification within 1 year from the date of being assigned to such
a major capital investment. Also, HHS requires that an individual
obtain FAC-P/PM Level II or I certification for non-major IT and
construction--i.e., tactical or supporting, capital investments,
respectively, within 2 years from the date of being assigned to such a
non-major capital investment. See Appendix A, Federal Acquisition
Certification--Program and Project Managers--HHS Projects and Programs
with Associated Certification Levels, in the P/PM Handbook for
additional information regarding major and non-major IT and
construction capital investments. FAC-P/PM certification for other
types of investments [e.g., advanced research and development (R & D)]
is encouraged, but is not mandatory.
301.607-73 Certification waivers.
(a) Waivers to certification requirements may be approved in
certain situations. Waivers for additional time to complete
certification requirements are not necessary for the first year
following an assignment to a major IT or construction capital
investment and for 2 years following an assignment to a non-major
capital investment. For waivers beyond those periods (for up to 1
additional year), the HHS Chief Information Officer (CIO) (for IT
programs and projects) and the Deputy Assistant Secretary for
Facilities Management and Policy (DASFMP) (for construction programs
and projects) are delegated authority to approve waiver requests. The
HHS CAO is the only individual authorized to approve waiver requests
for additional time beyond the initial 1-year waiver period.
(b) Approval of a waiver request does not relieve an individual
from meeting the certification requirements. Also, unlike FAC-P/PM
certifications, waivers issued by other Federal departments and
agencies do not transfer to HHS, since a waiver is agency-specific.
301.607-74 Certification transfers.
(a) HHS recognizes and accepts FAC-P/PM certifications issued by
other Federal departments and agencies. In addition, HHS complies with
FAI determinations as to which certifications by organizations outside
the Federal government are eligible for full or partial consideration
under FAC-P/PM. See FAI's Web site, and Chapter 3, Federal Acquisition
Certification--Program and Project Managers--Application and
Certification Procedures, in the P/PM Handbook for additional
information.
(b) A certification transfer should not be initiated when an
individual, who holds a current FAC-P/PM certification from another
Federal department or agency, becomes an HHS employee. Instead, the
individual must apply for recertification (which will result in
issuance of an HHS certification) at the time the candidate's immediate
supervisor performs the bi-annual assessment to determine whether the
individual has met the HHS FAC-P/PM CLP requirements.
301.607-75 Maintenance of FAC-P/PM certification.
(a) FAC-P/PM certification lasts for 2 years. To maintain FAC-P/PM
certification, HHS Program and Project Managers are required to earn 80
CLPs of skills currency every 2 years, starting from the date of their
initial certification or recertification, and document completion of
all training. If the required CLPs are not earned within each 2-year
period, a FAC-P/PM certification will lapse. Lapsed certifications may
be reinstated when 80 CLPs have been accumulated.
(b) Continuous learning activities related to FAC-P/PM include, but
are not limited to--
(1) Training activities, such as teaching, self-directed study, and
mentoring;
(2) Courses completed to achieve certification at the next higher
level;
(3) Professional activities, such as attending/speaking/presenting
at professional seminars/symposia/conferences, publishing papers, and
attending workshops;
(4) Educational activities, such as formal training and formal
academic programs; and
(5) Experience, such as developmental or rotational assignments.
See Appendix F, Federal Acquisition Certification--Program and
Project Managers--Guidance on Meeting Requirements for Continuous
Learning Points, in the P/PM Handbook for additional information.
301.607-76 FAC-P/PM application process.
The P/PM Handbook contains application procedures and forms to be
completed for basic certification; certification transfer;
certification through fulfillment; recertification; and certification
waiver. Applicants for HHS FAC-P/PM certification actions shall comply
with the requirements and procedures specified in the P/PM Handbook and
refer any questions to their OPDIV ACM for resolution.
301.607-77 Input and maintenance of FAC-P/PM information.
FAI's Acquisition Career Management Information System (ACMIS) is
HHS' system of record for the FAC-P/PM program. Program and Project
Manager candidates and certified Program and Project Managers are
responsible for entering, maintaining, and updating their FAC-P/PM
training and CLP data in ACMIS. OPDIV ACMs shall periodically review
ACMIS records for quality assurance purposes.
301.607-78 Governance.
The Departmental ACM, in ASFR/OGAPA/DA, serves as the Departmental
FAC-P/PM Program Manager and is responsible for administering the
program. To support the overall management of the FAC-P/PM
certification program at the OPDIV level, Executive Officers and their
HCAs may either use their existing ACM or designate an additional ACM,
whose professional background includes program and project management.
See Appendix B, Federal Acquisition Certification--Program and Project
Managers--Roles and Responsibilities, in the P/PM Handbook for
additional information.
301.607-79 Contracting Officer designation of a Program/Project
Manager as the Contracting Officer's Technical Representative.
Personnel who are FAC-P/PM certified, at any level, meet the
requirements for FAC-COTR certification and are, therefore, not
required to obtain FAC-COTR certification to serve as a COTR for an HHS
acquisition. However, for those individuals serving as a Program or
Project Manager under a FAC-P/PM certification waiver--see 301.607-73,
the Contracting Officer shall ensure that the individual meets the
requirements of HHS' FAC-COTR program before delegating authority to
that individual to act as a COTR. See 301.605 for additional
information regarding the Contracting Officer's designation of a COTR.
301.608 Training Requirements for Purchase Cardholders, Approving
Officials, and Agency/Organization Program Coordinators.
Training requirements for purchase cardholders, Approving
Officials, and Agency/Organization Program Coordinators are listed in
the following table:
[[Page 62406]]
HHS Purchase Card Training Program, by Authority Level
------------------------------------------------------------------------
Required training
Authority \a\ Program participant \b\
------------------------------------------------------------------------
Up to $3,000................ Prospective/newly Basic purchase card
appointed purchase training (HHS
cardholders and University course
Approving Officials. or an OPDIV
equivalent course).
Purchase card Yearly refresher
holders and purchase card
Approving Officials. training.
$3,001 to $25,000........... Prospective/newly Basic
appointed purchase purchase card
cardholders and training (HHS
Approving Officials. University course
or an equivalent).
Basic
simplified
acquisition
procedures (e.g.,
DAU's CON 237).
Advanced
simplified
acquisition
procedures or
Appropriations law.
Purchase card Yearly refresher
holders and purchase card
Approving Officials. training.
$25,001 to $100,000......... Prospective/newly Basic
appointed purchase purchase card
cardholders and training (HHS
Approving Officials. University course
or an OPDIV
equivalent course).
Basic
simplified
acquisition
procedures (e.g.,
DAU's CON 237).
Advanced
simplified
acquisition
procedures or
Appropriations law.
CON 100
(Shaping Smart
Business
Arrangements).
CON 110
(Mission Support
Planning).
Purchase cardholders Yearly refresher
and Approving purchase card
Officials. training.
Not applicable.............. Prospective/newly Basic
appointed Agency/ purchase card
Organization training (HHS
Program University course
Coordinators. or an OPDIV
equivalent course).
Basic
simplified
acquisition
procedures or DAU's
CON 237.
Advanced
simplified
acquisition
procedures or
appropriations law.
CON 100
(Shaping Smart
Business
Arrangements).
CON 110
(Mission Support
Planning).
Agency/Organization Yearly refresher
Program purchase card
Coordinators. training
(attendance at
GSA's annual
training conference
satisfies refresher
training).
------------------------------------------------------------------------
\a\ Cardholders and Approving Officials with authorized increases in
delegation of procurement authority (DPA) have up to 3 months to
complete the training requirements for the new DPA.
\b\ CON 237, CON 100, and CON 110 are available at the DAU Web site at
http://www.dau.mil/registrar/enroll.asp. CON 100 is also offered
through HHS University (see Web site at: http://learning.hhs.gov).
PART 302--DEFINITIONS OF WORDS AND TERMS
Subpart 302.1--Definitions
Sec.
302.101 Definitions.
Subpart 302.2--Definitions Clause
302.201 Contract clause.
Subpart 302.70--Common HHSAR Acronyms and Abbreviations
302.7000 Common HHSAR acronyms and abbreviations.
Subpart 302.71--HHS Standard Templates and Formats
302.7100 HHS standard templates and formats.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 302.1--Definitions
302.101 Definitions.
(a) Agency head or head of the Agency, unless otherwise stated,
means the head of the OPDIV for: AHRQ; CDC; CMS; FDA; HRSA; IHS; NIH;
SAMHSA; and ASFR for the Office of the Secretary (OS), including PSC.
The Assistant Secretary for Preparedness and Response (ASPR) is the
head of the agency for BARDA contracting functions.
(b) Chief of the Contracting Office is typically a mid-level
management official, usually an office director, division director, or
branch chief, who manages and monitors the daily contract operations of
an OPDIV or major component of an OPDIV. The CCO is subordinate to the
HCA, except where the same individual is the HCA and CCO.
(c) Contracting Officer's Technical Representative is a Federal
employee whom a Contracting Officer has designated in writing to act as
the Contracting Officer's representative in monitoring and
administering specified aspects of contractor performance after award
of a contract or order that exceeds the simplified acquisition
threshold. (Note: In accordance with local procedures, OPDIVs may
designate COTRs for contracts or orders estimated to be less than the
simplified acquisition threshold.) These activities may include
verifying that:
(1) The contractor's performance meets the standards set forth in
the contract;
(2) The contractor meets the contract/order's technical
requirements by the specified delivery date(s) or within the period of
performance; and
(3) The contractor performs within the fixed price or cost ceiling
stated in the contract or order. COTRs must meet the training and
certification requirements specified in 301.604.
(d) Head of the contracting activity is an official who has overall
responsibility for managing a contracting activity--i.e., the
organization within an OPDIV or other HHS organization which has been
delegated broad authority regarding the conduct of acquisition
functions.
(1) The HHS HCAs are as follows:
AHRQ: Director, Division of Contracts Management
BARDA: Director, Acquisition Management System
CDC: Director, Procurement and Grants Office
CMS: Director, Office of Acquisition and Grants Management
FDA: Director, Office of Acquisitions and Grant Services
HRSA: Director, Office of Acquisition Management and Policy
IHS: Director, Division of Acquisition Policy
NIH: Director, Office of Acquisition and Logistics Management
PSC: Director, Strategic Acquisition Service
SAMHSA: Director, Division of Contracts Management
[[Page 62407]]
(2) Each HCA shall conduct an effective and efficient acquisition
program; establish adequate controls to ensure compliance with
applicable laws, regulations, procedures, and the dictates of good
management practices; and conduct periodic reviews to evaluate and
determine the extent of adherence to prescribed policies and
regulations and the need for guidance and training.
(3) HCAs may redelegate their authorities to the extent that
redelegation is not prohibited by the terms of their respective
delegations of authority, by law, by the FAR, by the HHSAR, or by other
regulations. To ensure proper control of redelegated acquisition
authorities, HCAs shall maintain a file containing successive
delegations of HCA authority through the Contracting Officer level.
(e) Program Manager is a Federal employee whom an OPDIV official or
designee one level above the head of the sponsoring program office has
designated in writing to act as a Program Manager for a group of
related major or non-major IT or construction capital investments--see
HHS FAC-P/PM Program Handbook. See also Appendix D, Relationship
between Program Management and Project Management, of OFFP memorandum
entitled ``The Federal Acquisition Certification for Program and
Project Managers,'' dated April 25, 2007. Program Managers must meet
the FAC-P/PM certification requirements in 301.607. A Program Manager
may also be delegated authority to act as the COTR for a major or non-
major IT or construction capital investment--see 301.604.
(f) Project Manager is a Federal employee whom a head of the
sponsoring program office (Program Manager) or designee has designated
in writing to act as a Project Manager for a major or non-major IT or
construction capital investment--see HHS FAC-P/PM Program Handbook. See
also Appendix D, Relationship between Program Management and Project
Management, of OFFP memorandum entitled ``The Federal Acquisition
Certification for Program and Project Managers,'' dated April 25, 2007.
Project Managers must meet the FAC-P/PM certification requirements in
301.607. A Project Manager may also be delegated authority to act as
the COTR for a major or non-major IT or construction capital
investment--see 301.604.
(g) Project Officer is a Federal employee whom a head of the
sponsoring program office (Program Manager) or designee has designated
in writing to act as a Project Officer and provide guidance,
information, and assistance to the Contracting Officer for all
technical aspects of a proposed project before award of a contract or
order that is estimated to exceed the simplified acquisition threshold.
(Note: In accordance with local procedures, OPDIVs may designate
Project Officers for contracts or orders estimated to be less than the
simplified acquisition threshold.) Project Officers must meet the
training requirements in 301.606. Project Officers are often delegated
authority to also act as the COTR on a contract or order--see 301.604.
Subpart 302.2--Definitions Clause
302.201 Contract clause.
The Contracting Officer shall insert the clause in FAR 52.202-1,
Definitions, in solicitations and contracts, except as cited below.
This is an authorized FAR deviation.
(a) In accordance with FAR 52.202-1(a)(1), the Contracting Officer
shall insert paragraph (a) in 352.202-1 in place of paragraph (a) of
the FAR clause.
(b) In accordance with FAR 52.202-1(a)(1), the Contracting Officer
shall insert paragraph (b), or its alternate in 352.202-1, to the end
of the FAR clause. The Contracting Officer shall insert paragraph (b)
when a fixed-priced contract is contemplated and the alternate to
paragraph (b) when a cost-reimbursement contract is contemplated.
Subpart 302.70--Common HHSAR Acronyms and Abbreviations
302.7000 Common HHSAR acronyms and abbreviations.
(a) The HHSAR cites numerous acquisition-related and organizational
acronyms and abbreviations. Each of these is established where first
cited in the text, following the use of the unabbreviated term, and are
used in subsequent subparts of that part or any other part of the
HHSAR.
(b) The table below cites, for reference purposes, the most
commonly used acronyms and abbreviations--i.e., those that have
applicability to multiple parts of the HHSAR, and where they are first
cited. They are listed alphabetically. The HHSAR also contains other
acronyms and abbreviations, which because they are cited only in one
HHSAR part, subpart, section, or in reference to a particular topic,
are not listed in the table. An example is DCIS (Departmental Contracts
Information System) cited in subpart 304.602.
----------------------------------------------------------------------------------------------------------------
Acronym/abbreviation Term Where first cited in the HHSAR
----------------------------------------------------------------------------------------------------------------
A & E................................... Architect and engineer 304.803-70(b).
(contracts).
AHRQ.................................... Agency for Healthcare Research 301.270(b).
and Quality.
AP...................................... Acquisition Plan................ 301.606-71.
ASFR.................................... Assistant Secretary for 301.103(b).
Financial Resources (in OS).
Associate DAS for Acquisition........... Associate Deputy Assistant 301.270(a).
Secretary for Acquisition (in
OS/ASFR/OGAPA/DA).
BARDA................................... Biomedical Advanced Research and 301.270(b).
Development Authority.
BPA or BPAs............................. Blanket Purchase Agreement(s)... 301.603-70(b).
CA...................................... Competition Advocate............ 306.202(a).
CAO..................................... Chief Acquisition Officer (for 301.603-72(a)(4).
HHS).
CCO..................................... Chief of the Contracting Office. 301.602-3(b)(3).
CDC..................................... Centers for Disease Control and 301.270(b).
Prevention.
CFR..................................... Code of Federal Regulations..... 301.103(c).
CIO..................................... Chief Information Officer (for 301.607-73(a).
HHS).
CMS..................................... Centers for Medicare and 301.270(b).
Medicaid Services.
COTR.................................... Contracting Officer's Technical 301.604-70.
Representative.
D&F..................................... Determination and Findings...... 306.202(b)(1).
DA...................................... Division of Acquisition (in 301.270(b).
ASFR) in OS.
DASFMP.................................. Deputy Assistant Secretary for 301.607-73(a).
Facilities Management and
Policy.
DAS/GAPA................................ Deputy Assistant Secretary for 309.403.
Grants and Acquisition Policy
and Accountability.
EIT..................................... Electronic information 301.603-73(e).
technology.
EVM..................................... Earned value management......... 301.603-73(a).
[[Page 62408]]
FAR..................................... Federal Acquisition Regulation.. 301.101(a).
FDA..................................... Food and Drug Administration.... 301.270(b).
FedBizOpps.............................. Federal Business Opportunities.. 305.205(a).
FSS..................................... Federal Supply Schedule......... 304.803-70(b).
GLD..................................... General Law Division (typically 301.602-3(c)(5).
referred to with ``OGC'').
GSA..................................... General Services Administration. 304.803-70(b).
GWAC.................................... Government-wide acquisition 304.803-70(b).
contract.
HCA..................................... Head of the Contracting Activity 301.470(a).
HHS..................................... (Department of) Health and Human 301.101(a).
Services.
HHSAR................................... Health and Human Services 301.101(a).
Acquisition Regulation.
HRSA.................................... Health Resources and Services 301.270(b).
Administration.
HUBZone................................. Historically Underutilized 305.205(a)(2).
Business Zone.
IDIQ.................................... indefinite-delivery, indefinite- 301.603-70(b).
quantity (contract type).
IHS..................................... Indian Health Service........... 301.270(b).
IT...................................... information technology.......... 301.604-74(a).
JOFOC................................... Justification for Other than 306.303-1(b)(1).
Full and Open Competition.
NIH..................................... National Institutes of Health... 301.270(b).
OCIO.................................... Office of the Chief Information 301.603-73(a).
Officer (for HHS).
OFMP.................................... Office of Facilities Management 301.603-73(a).
and Policy (for HHS).
OGAPA................................... Office of Grants and Acquisition 301.270(b).
Policy and Accountability.
OGC..................................... Office of the General Counsel... 301.602-3(c)(5).
OIG..................................... Office of the Inspector General. 303.104-7(a)(2)(i).
OMB..................................... Office of Management and Budget. 301.106.
OPDIV................................... Operating Division.............. 301.603-73(a).
OS...................................... Office of the Secretary......... 302.101(a).
OSDBU................................... Office of Small and 307.104(a)(4).
Disadvantaged Business
Utilization (in OS).
Pub. L.................................. Public Law...................... 304.604.
PWS..................................... performance work statement 304.1300(c).
(typically cited with SOW).
PSC..................................... Program Support Center (in OS).. 301.270(b).
R&D..................................... research and development........ 301.607-72(b).
RFI..................................... Request for Information......... 305.205(a).
SAMHSA.................................. Substance Abuse and Mental 301.270(b).
Health Services Administration.
SBS..................................... Small Business Specialist (in 307.104(a)(4).
OSDBU).
SF...................................... Standard Form................... 301.603-1(b).
SOW..................................... statement of work [inclusive of 304.1300(c).
specification(s)] and typically
cited with PWS.
SPE..................................... Senior Procurement Executive-- 301.603-71.
i.e., Associate DAS for
Acquisition.
STAFFDIV................................ Staff Division (in OS).......... 311.7001(b).
----------------------------------------------------------------------------------------------------------------
Subpart 302.71--HHS Standard Templates and Formats
302.7100 HHS standard templates and formats.
HHS has developed standard templates and formats for preparation of
various acquisition documents, reports, and plans. The templates and
formats, which contain instructions for their completion, may be
accessed on the ASFR/OGAPA/DA Internet Web site. A complete listing of
the standard templates and formats and where they are referenced in the
text are cited in the table below:
------------------------------------------------------------------------
Title of template/format HHSAR reference
------------------------------------------------------------------------
Acquisition Plan...................... 307.7103.
Acquisition Plan Waiver Request....... 307.7101(b)(2).
Acquisition Strategy.................. 307.104-70.
Annual Acquisition Plan............... 307.104(a)(5).
Competition Advocate Report........... 306.502(b).
Contract File Checklists.............. 304.803-70.
FedBizOpps R & D Sources Sought Notice 305.205(a)(3).
FedBizOpps Request for Information.... 315.201(e)(4).
FedBizOpps Small Business Sources 319.202-2(a)(3).
Sought Notice.
FedBizOpps Sources Sought Notice...... 310.001(a)(3)(iv).
Justification for Other than Full and 306.303-1(b)(1).
Open Competition.
Limited Source Justification.......... 308.405-6(g)(1)(i).
Request for Information............... 315.201(e)(4).
------------------------------------------------------------------------
PART 303--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
Subpart 303.1--Safeguards
Sec.
303.101 Standards of conduct.
303.101-3 Agency regulations.
303.1047-7 Violations or possible violations of the Procurement
Integrity Act.
303.1003 Requirements.
Subpart 303.2--Contractor Gratuities to Government Personnel
303.203 Reporting suspected violations of the Gratuities clause.
[[Page 62409]]
Subpart 303.3--Reports of Suspected Antitrust Violations
303.303 Reporting suspected antitrust violations.
Subpart 303.4--Contingent Fees
303.405 Misrepresentations or violations of the Covenant Against
Contingent Fees clause.
Subpart 303.6--Contracts With Government Employees or Organizations
Owned or Controlled by Them
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.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
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 HCA for review
and approval the determination (along with supporting documentation)
that a reported violation or possible violation of the statutory
prohibitions has no impact on the pending award or selection of a
contractor for award.
(2) The Contracting Officer shall refer the determination that a
reported violation or possible violation of the statutory prohibitions
has an impact on the pending award or selection of a contractor, along
with all related information available, to the HCA, if the HCA is in
the Senior Executive Service (SES), or to another SES official
designated by the OPDIV. That individual shall--
(i) Refer the matter immediately to the Associate DAS for
Acquisition for review, who may consult with OGC-GLD and the Office of
the Inspector General (OIG), as appropriate; and
(ii) Determine the necessary action in accordance with FAR 3.104-
7(c) and (d). The HCA shall obtain the approval or concurrence of the
Associate DAS for Acquisition before proceeding with an action.
(b) The HCA (non-delegable) shall act with respect to actions taken
under the FAR clause 52.203-10, Price or Fee Adjustment for Illegal or
Improper Authority.
303.1003 Requirements.
(b) The Contracting Officer, when notified of a possible contractor
violation of Federal criminal law, in accordance with FAR 3.1003(b),
shall--
(1) Notify the OIG at http://www.oig.hhs.gov/fraud/hotline, 1-800-
HHS-TIPS (1-800-447-8477), or [email protected];
(2) Notify the HCA; and
(3) Cooperate with any investigation by the OIG; and in
coordination with the HCA, OIG, OGC and the affected program office,
pursue appropriate remedies.
(c)(2) The Contracting Officer shall specify the title of HHS'
hotline poster (``Report Fraud'') and the Web site where the poster can
be obtained (http://oig.hhs.gov/fraud/hotline/OIG_Hotline_Poster.pdf)
in subparagraph (b)(3) of the clause at FAR 52.203-14.
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 Gratuities
clause to the Contracting Officer, who will in turn report the matter
to the OGC Ethics Division for disposition. The OGC Ethics Division
shall identify, and notify the Contracting Officer of, the form and
content of the required report.
Subpart 303.3--Reports of Suspected Antitrust Violations
303.303 Reporting suspected antitrust violations.
(h) The HCA shall provide a copy of the draft OPDIV report of
suspected antitrust violations to the SPE. If the SPE concurs with the
draft report, the SPE will provide it to the OGC-GLD for its review. If
the OGD-GLD concurs with the draft report, the SPE will provide the
signed OGC-approved report to the Attorney General.
Subpart 303.4--Contingent Fees
303.405 Misrepresentations or violations of the Covenant Against
Contingent Fees clause.
(a) HHS personnel shall promptly report suspected
misrepresentations or violations of the Covenant Against Contingent
Fees clause to the Contracting Officer.
(b)(4) The HCA shall provide a copy of the draft OPDIV report of
suspected covenant against contingency fees misrepresentations or
violations to the SPE. If the SPE concurs with the draft report, the
SPE will provide it to the OGC-GLD for its review. If the OGD-GLD
concurs with the draft report, the SPE will provide the signed OGC-
approved report to the Attorney General.
Subpart 303.6--Contracts With Government Employees or Organizations
Owned or Controlled by Them
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 implementing FAR subpart 3.7, the HCA (non-
delegable) shall exercise the authorities granted to the ``agency head
or designee.''
Subpart 303.8--Limitation on the Payment of Funds to Influence
Federal Transactions
303.808-70 Solicitation provision and contract clause.
The Contracting Officer shall insert the clause in 352.203-70,
Anti-lobbying, in solicitations and contracts that exceed the
simplified acquisition threshold.
PART 304--ADMINISTRATIVE MATTERS
Subpart 304.6--Contracting Reporting
Subpart 304.8--Government Contract Files
Sec.
304.602 General.
304.604 Responsibilities.
304.803-70 Contract/order file organization and use of checklists.
304.804-70 Contract closeout audits.
Subpart 304.13--Personal Identity Verification
304.1300 Policy.
Subpart 304.70--Acquisition Instrument Identification Numbering System
304.7000 Scope of subpart.
304.7001 Numbering acquisitions.
Subpart 304.71--Review and Approval of Proposed Contract Awards
304.7100 Policy.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 304.6--Contract Reporting
304.602 General.
HHS' Departmental Contracts Information System (DCIS) captures and
stores HHS' Individual Contract Award Reports (ICARs) and forwards
copies of them to the Federal Procurement Data System--Next Generation
(FPDS-NG).
[[Page 62410]]
All HHS contracting activities shall use the DCIS, in accordance with
the most current version of the ``User Manual for the Enhanced
Departmental Contracts Information System,'' (DCIS Users' Manual)
available at http://dcis.hhs.gov. For the purposes of this policy,
reporting shall include inputting and submitting report data through
DCIS into FPDS-NG.
304.604 Responsibilities.
In order for HHS to meet its reporting requirements and ensure
compliance with the Federal Funding Accountability and Transparency Act
(Transparency Act), Public Law (Pub. L.) 109-282, HHS acquisition
officials and staff must report their contract information accurately
and timely. Ensuring accuracy and timeliness also requires effective
and efficient data verification and validation at the time of and
following reporting.
Following are descriptions of the organizational roles and
responsibilities associated with contract reporting, including data
input, oversight, and quality control; training of acquisition staff on
reporting responsibilities; and operating, managing, and maintaining
DCIS.
(a) ASFR/OGAPA/DA. The ASFR/OGAPA/DA shall do the following:
(1) Oversee and provide policy guidance for OPDIV contract
reporting by--
(i) Establishing and implementing an effective HHS-wide ICAR data
verification and validation program; and
(ii) Identifying cross-cutting trends through periodic testing of
selected ICAR data, including Transparency Act data fields.
(2) Ensure that DCIS is properly managed and maintained,
including--
(i) Verifying that data included therein meets FPDS-NG and
Transparency Act accuracy and timeliness standards;
(ii) Updating the DCIS Users' Manual periodically; and
(iii) Prescribing standard HHS-wide DCIS training.
(3) Certify annually that HHS ICAR information is complete and
accurate.
(b) HCA. Each HCA (non-delegable) shall--
(1) Ensure that all reportable ICAR information is collected,
submitted, and received within the time frames and under the
circumstances specified in FAR Subpart 4.6.
Note: Each CCO shall prepare and submit accurate ICAR data in
accordance with HCA guidance.;
(2) Provide continuing oversight, including implementing an OPDIV-
level data verification and validation program, to ensure ICAR data
quality and timeliness;
(3) Establish a continuous training program for acquisition staff
to ensure the quality and timeliness of ICAR data; and
(4) Certify annually to HHS' SPE that OPDIV ICAR information is
complete and accurate.
(c) Contracting Officer. As part of a normal file review, required
under 304.7101, the Contracting Officer shall--
(1) Ensure that all reportable contracts and orders, including BPA
orders and modifications thereto, are reported;
(2) Review and approve proposed ICAR data for completeness and
accuracy prior to signing contracts/orders and modifications; and
(3) Correct all DCIS data discrepancies before signing the
associated contract, order, or modification.
(d) OPDIV DCIS coordinator/focal point. The OPDIV DCIS coordinator/
focal point shall--
(1) Identify data errors and ensure their timely correction as part
of the DCIS quality control process;
(2) Conduct remedial staff training, as appropriate, to improve
data accuracy and timeliness; and
(3) Represent the OPDIV as a member of the DCIS Configuration
Committee.
(e) DCIS Configuration Committee. The DCIS Configuration Committee
is composed of the HHS DCIS manager, other ASFR/OGAPA/DA acquisition
management staff, as required; and each OPDIV's DCIS coordinator/focal
point. The Committee shall ensure that the DCIS is properly maintained
and shall evaluate and recommend changes to DCIS to improve its
functionality, features, and quality control, as appropriate.
Subpart 304.8--Government Contract Files
304.803-70 Contract/order file organization and use of checklists.
(a) To provide a consistent approach to the organization and
content of HHS contract and order files, OPDIVs shall use the folder
filing system and accompanying file checklists specified in 304.803-
70(b), in accordance with the guidance therein and the instructions
specified as ``Contract and Order File Folders, Checklists, and
Instructions. The checklists are available on the ASFR/OGAPA/DA
Internet.
(b) The checklist requirements apply to files for (i) negotiated,
sealed-bid, and Architect-Engineer (A & E) acquisitions; (ii) orders
awarded and BPAs established under General Services Administration
(GSA) Federal Supply Schedule (FSS) contracts; (iii) orders placed
under all types of indefinite-delivery contracts, including task orders
under Government-wide Acquisition Contracts (GWACs); and (iv)
modifications under the types of acquisitions specified in (i), (ii),
and (iii). Simplified acquisitions, including those for commercial
items, are exempt from these checklist requirements. However, HHS
contracting activities shall adhere to the simplified acquisition file
documentation and retention requirements of FAR 13.106-3(b). For
commercial item acquisitions using the negotiated or sealed bid
methods, HHS contracting activities shall use the applicable checklist.
(1) A complete contract or order file may consist of the following
folders that are titled as indicated below for the specified
acquisition methods:
----------------------------------------------------------------------------------------------------------------
Acquisition method Folder title Folder title Folder title Folder title
----------------------------------------------------------------------------------------------------------------
Negotiated...................... Presolicitation to Unsuccessful Administration and Reports and
Award. Proposals. Closeout. Deliverables.
Sealed-bid...................... Presolicitation to Unsuccessful Bids. Administration and N/A.
Award. Closeout.
A & E........................... Preannouncement to Unsuccessful Administration and Reports and
Award. Qualifications Closeout. Deliverables.
Statements.
Task orders..................... Presolicitation to Unsuccessful Administration and Reports and
Award. Proposals. Closeout. Deliverables.
GSA FSS......................... Presolicitation to Unsuccessful Administration and N/A.
Award. Quotations/Oral Closeout.
Presentations.
----------------------------------------------------------------------------------------------------------------
[[Page 62411]]
(2) Although the use of the checklists is mandatory, each OPDIV
contracting office is permitted to make certain checklist changes or
additions as specified in ``Use and modification of checklists'' under
``File checklists and tab dividers'' in the instructions.
(3) OPDIVs using or planning to use electronic filing capabilities
shall adhere to the folder and tab nomenclature requirements identified
herein to the maximum extent practicable.
304.804-70 Contract closeout audits.
(a) Contracting Officers shall rely, to the maximum extent
possible, on single audits to close physically completed cost-
reimbursement contracts with colleges and universities, hospitals, non-
profit organizations, and State and local governments. In addition,
where appropriate, a sample of these contracts or an individual
contract may be selected for audit, in accordance with paragraph (b) of
this section.
(b) Contracting Officers shall request contract closeout audits on
physically completed, cost-reimbursement, contracts with for-profit
organizations in accordance with the following:
(1) The OIG and the Associate DAS for Acquisition, in conjunction
with the OPDIV's cost advisory/audit focal point, determine which
contracts or contractors will be audited, which audit agency will
perform the audit, and the type and scope of closeout audit to be
performed. These decisions are based on the needs of the customer, risk
analysis, return on investment, and the availability of audit
resources. When an audit is warranted prior to closing a contract, the
Contracting Officer shall submit the audit request to the OIG's Office
of Audit Services, through the OPDIV's cost advisory/audit focal point.
(2) Except where a Contracting Officer suspects misrepresentation
or fraud, the Contracting Officer shall not request contract closeout
field audits, if the cost of performance is likely to exceed the
potential cost recovery. Contracting Officers may close contracts that
are not selected for a field audit on the basis of a desk review,
subject to any later on-site audit findings. In those situations, the
release executed by the contractor shall contain the following
statement: ``The Contractor agrees, pursuant to the clause in this
contract entitled ``Allowable Cost'' or ``Allowable Cost and Fixed
Fee,'' as appropriate, that it will refund to the Government the amount
of any sustained audit exceptions resulting from any audit made after
final payment.''
Subpart 304.13--Personal Identity Verification
304.1300 Policy.
(a) Definitions. The following definitions apply to this subpart:
(1) Access: ``Physical'' entry to and/or exit from a facility/area
of a facility (such as a building or room in a building) or ``logical''
entry into an information system, such as a researcher up-loading data/
information through a secure Web site or a contractor accessing an HHS-
controlled information system from its own facility. It does not
include access to a public Web site, whether by an HHS contractor or
member of the public, because such Web sites do not require permission
to access. In the case of sensitive data/information that exists in
hard copy, ``access'' means providing a contractor the right to view or
use written/typed data or information for the purpose described in a
contract.
(2) Long-term: Greater than 6 months in duration.
(3) Routine: On a regular, non-intermittent basis, which is at
least once per week during the contract or order period of performance.
(4) Sensitive data/information: As defined by the Computer Security
Act of 1987, any data/information, ``the loss, misuse, or unauthorized
access to or modification of which, could adversely affect the national
interest or the conduct of Federal programs, or the privacy to which
individuals are entitled under section 552a of the Title 5 of U.S.C.
(the Privacy Act), but which has not been specifically authorized under
criteria established by an Executive order or an act of Congress to be
kept secret in the interest of national defense or foreign policy.''
Examples include individuals' social security numbers; other personal
identification information, such as individuals' health, medical, or
psychological information; proprietary research data; and confidential
legal data.
(5) Short-term: Six (6) months or less in duration.
(b) Homeland Security Presidential Directive (HSPD-12), entitled,
``Policy for a Common Identification Standard for Federal Employees and
Contractors,'' was issued on August 27, 2004, to enhance security and
reduce identity fraud related to contractor physical access to
Federally-controlled facilities and/or logical access to Federally-
controlled information systems.
(1) The HSPD-12 requirements related to routine, long-term physical
access to HHS-controlled facilities and logical access to HHS-
controlled information systems, including contractor personnel
background checks/investigations (termed herein as ``more stringent''
access procedures), apply to all solicitations and new contracts or
orders for services, including services incidental to supply contracts/
orders, regardless of dollar amount, where the contractor will require
such access (FAR 4.1303). In addition, HHS has determined that, when a
contractor has routine, long-term access to sensitive data/information,
whether it exists in an HHS-controlled information system or in hard
copy, that data/information must also be protected and controlled in
accordance with HSPD-12's more stringent access procedures--see
304.1300(e).
(2) When a contractor's access to HHS-controlled facilities,
information systems, and/or sensitive data/information is of routine
but short-term duration, an OPDIV shall use the applicable guidance
cited in OMB memorandum M-05-24 related to ``short-term'' access to
determine appropriate protections and limit/control contractor access--
see 304.1300(f)]. However, if the Project Officer determines greater
access controls are necessary, an OPDIV may protect and control
facilities, information systems, and/or sensitive data information in
accordance with HSPD-12's more stringent access procedures.
(3) When a contractor's access to HHS-controlled facilities,
information systems, and/or sensitive data/information is not routine,
regardless of duration, HHS has determined that OPDIVs shall use the
applicable guidance cited in OMB memorandum M-05-24 related to
``occasional visitors'' to determine appropriate protections and limit/
control contractor access--see 304.1300(g).
(4) Summary table of contractor access circumstances and HSPD-12
requirements.
[[Page 62412]]
------------------------------------------------------------------------
HSPD-12 security
HSPD-12 access notice required in
Type of access procedures solicitation/
required contract SOW/PWS?
[see 304.1300(e)]
------------------------------------------------------------------------
Routine, long-term, physical More stringent YES.
access to HHS-controlled access procedures
facilities. apply.
Routine, long-term logical More stringent YES.
access to an HHS-controlled access procedures
information system that does apply.
not contain sensitive HHS data/
information.
Routine, long-term access to More stringent YES.
sensitive HHS data/information, access procedures
whether it exists in an HHS- apply.
controlled information system
(logical access) or in hard
copy.
Routine, short-term access to If greater access YES.
HHS-controlled facilities, controls are
information systems, and/or deemed necessary,
sensitive HHS data/information. more stringent
access procedures
apply.
If greater access controls are NO, but contractor
not deemed necessary, staff must be
applicable guidance cited in provided with the
OMB memorandum M-05-24 related OPDIV
to ``short-term'' access to documentation on
determine appropriate the rules of
protections and limit/control behavior and
contractor access. consequences for
violation [see
304.1300(f)].
Non-routine access, regardless Applicable NO, but contractor
of duration, to HHS-controlled guidance cited in staff must be
facilities, information OMB memorandum M- provided with the
systems, and/or sensitive HHS 05-24 related to OPDIV
data/information. ``occasional ``occasional
visitors'' to visitor'' policy
determine and procedures
appropriate [see
protections and 304.1300(g)].
limit/control
contractor access.
------------------------------------------------------------------------
(c) As part of the acquisition planning process, the Project
Officer shall determine whether, based on the nature of the
requirement, contractor personnel may require access to HHS-controlled
facilities and/or information systems, including sensitive data/
information, in order to perform the contract/order Statement of Work
(SOW)/Performance Work Statement (PWS). If contractor access is
required, the Project Officer must assess, based on information
available at that point in the process, the type, frequency, and
duration of such access. Following that determination, the Project
Officer shall consult with OPDIV and/or local building and IT security
officials/staff, and officials/staff involved with personnel security,
including the designated personnel security representative, to
determine appropriate security requirements and, as necessary, adjust
project requirements to minimize security and access issues. The
Project Officer shall comply with HSPD-12 and the following
implementing guidance in making these judgments and determinations:
(1) OMB memorandum M-05-24, Implementation of Homeland Security
Presidential Directive (HSPD) 12--Policy for a Common Identification
Standard for Federal Employees and Contractors, dated August 5, 2005.
(2) National Institutes of Standards and Technology Federal
Information Processing Standard Publication (FIPS PUB) 201), dated
February 25, 2005, which can be accessed at: http://csrc.nist.gov/publications/.
(3) FAR (FAR 4.13 and 52.204-9).
(4) Any HHS and OPDIV implementation thereof.
(d) If, as part of the acquisition planning process, the Project
Officer determines that contractor access will not be required, the
Project Officer should so state in the AP (or other acquisition request
document)--see 307.7101. If an AP does not address access issues or
indicates contractor access is not required, and it appears an
acquisition may involve access requirements, the Contracting Officer
shall request that the Project Officer address or reconsider the
initial access determination. The Project Officer's determination shall
be final.
(e) If HSPD-12's more stringent access procedures are expected to
apply, because access will be routine and of long-term duration, or is
routine and of short-term duration, but greater access controls are
deemed necessary, the Project Officer shall include the following
``HHS-Controlled Facilities and Information Systems Security'' notice
in a separate, clearly designated ``Security'' section of the SOW/PWS.
(Note: The Contracting Officer is responsible for tailoring the
language in the solicitation and contract/order in accordance with the
instructions provided below.)
``XXX Security.
HHS-Controlled Facilities and Information Systems Security
(a) To perform the work specified herein, Contractor personnel
are expected to have routine (1) physical access to an HHS-
controlled facility; (2) logical access to an HHS-controlled
information system; (3) access to sensitive HHS data or information,
whether in an HHS-controlled information system or in hard copy; or
(4) any combination of circumstances (1) through (3). (b) To gain
routine physical access to an HHS facility, logical access to an
HHS-controlled information system, and/or access to sensitive data
or information, the Contractor and its employees shall comply with
Homeland Security Presidential Directive (HSPD)-12, Policy for a
Common Identification Standard for Federal Employees and
Contractors; Office of Management and Budget memorandum (M-05-24);
and Federal Information Processing Standards Publication (FIPS PUB)
Number 201; and with the personal identity verification and
investigation procedures contained in the following documents:
(1) HHS Information Security Program Policy.
(2) HHS Office of Security and Drug Testing, Personnel Security/
Suitability Handbook, dated February 1, 2005.
(3) HHS HSPD-12 Policy Document, v. 2.0.
(4)
Note: Based upon information provided by the Project Officer,
the Contracting Officer shall insert references to OPDIV and/or
local procedural guideline(s), if any; indicate if they are readily
accessible to the public; and, if so, specify where they may be
found. If they are not readily accessible, the Contracting Officer
shall attach a copy to the solicitation and contract and reference
the guideline(s) here.
(c) This contract/order will entail the following position
sensitivity level(s): --------------------.
Note: At the time of solicitation, based upon information
provided by the Project Officer, the Contracting Officer shall
specify all known levels. If the position sensitivity levels are not
known at that time, the Contracting Officer shall insert the words
``To Be Determined at the Time of Award.'' However, the Contracting
Officer must include the definitive position sensitivity levels in
the awarded contract/order.
(d) The personnel investigation procedures for Contractor
personnel require that the Contractor prepare and submit background
check/investigation forms based on the type
[[Page 62413]]
of investigation required. The minimum Government investigation for
a non-sensitive position is a National Agency Check and Inquiries
(NACI) with fingerprinting. More restricted positions--i.e., those
above non-sensitive, require more extensive documentation and
investigation.
Note: The Contracting Officer shall include the following
sentence in each solicitation as the concluding sentence in
paragraph (d)): ``As part of its proposal, and if the anticipated
position sensitivity levels are specified in paragraph (c) above,
the Offeror shall notify the Contracting Officer of (1) its proposed
personnel who will be subject to a background check/investigation
and (2) whether any of its proposed personnel who will work under
the contract have previously been the subject of national agency
checks or background investigations.''
(The Contracting Officer shall include the following sentence in
each contract/order as the concluding sentence in paragraph (d) in
lieu of the solicitation language: ``The Contractor shall notify the
Contracting Officer in advance when any new personnel, who are
subject to a background check/investigation, will work under the
contract and if they have previously been the subject of national
agency checks or background investigations.'')
(e) Investigations are expensive and may delay performance,
regardless of the outcome of the investigation. Delays associated
with rejections and consequent re-investigations may not be
excusable in accordance with the FAR clause, Excusable Delays--see
FAR 52.249-14.
Note: The Contracting Officer shall include the following
sentence in each solicitation as the concluding sentence in
paragraph (e): ``Accordingly, if position sensitivity levels are
specified in paragraph (c), the Offeror shall ensure that the
employees it proposes for work under this contract have a reasonable
chance for approval.'' The Contracting Officer shall include the
following sentence in each contract/order as the concluding sentence
in paragraph (e) in lieu of the solicitation language:
``Accordingly, the Contractor shall ensure that any additional
employees whose names it submits for work under this contract have a
reasonable chance for approval.''
(f) Typically, the Government investigates personnel at no cost
to the Contractor. However, multiple investigations for the same
position may, at the Contracting Officer's discretion, justify
reduction(s) in the contract price of no more than the cost of the
additional investigation(s).
(g) The Contractor shall include language similar to this ``HHS-
Controlled Facilities and Information Systems Security'' language in
all subcontracts that require subcontractor personnel to have the
same frequency and duration of (1) physical access to an HHS-
controlled facility; (2) logical access to an HHS-controlled
information system; (3) access to sensitive HHS data/information,
whether in an HHS-controlled information system or in hard copy; or
(4) any combination of circumstances (1) through (3).
(h) The Contractor shall direct inquiries, including requests
for forms and assistance, to the Contracting Officer or designee.
(i) Within 7 calendar days after the Government's final
acceptance of the work under this contract, or upon termination of
the contract, the Contractor shall return all identification badges
to the Contracting Officer or designee.''
(f) When a contractor's access to HHS-controlled facilities,
information systems, and/or sensitive data/information is of routine,
but short-term duration, and greater access controls are not deemed
necessary, the Contracting Officer and Project Officer shall use the
applicable guidance cited in OMB memorandum M-05-24, dated August 5,
2005, specifically Attachment A, ``HSPD-12 Implementation Guidance for
Federal Departments and Agencies,'' to ensure that--
(1) Adequate OPDIV access controls are applied, and a contractor is
granted only limited/controlled access to facilities, systems, and/or
sensitive data/information, consistent with the requirements of the
acquisition;
(2) Contractor staff are provided with clear OPDIV documentation on
the rules of behavior and consequences of their violation before being
granted access to facilities, systems, and/or sensitive data/
information;
(3) Contractor security violations are documented and reported to
the appropriate OPDIV authority within 24 hours of their occurrence;
and
(4) Identity credentials issued to contractor staff are visually
and electronically distinguishable from credentials issued to
individuals to whom the more stringent HSPD-12 access procedures apply.
Note to paragraph (f): However, as indicated in 304.1300(e), if
the Project Officer determines greater access controls are
necessary, an OPDIV may protect and control facilities, information
systems, and/or sensitive data information in accordance with HSPD-
12's more stringent access procedures.
(g) When a contractor's access to HHS-controlled facilities,
information systems, and/or sensitive data/information is not routine,
regardless of duration, the Contracting Officer and Project Officer
shall use the applicable guidance cited in OMB memorandum M-05-24,
dated August 5, 2005, specifically Attachment A, ``HSPD-12
Implementation Guidance for Federal Departments and Agencies,'' related
to ``occasional visitors'' to determine appropriate protections and
limit/control contractor access to ensure that--
(1) Adequate OPDIV access controls are applied, and the contractor
is granted only limited/controlled access to facilities, systems, and/
or sensitive data/information, consistent with the requirements of the
acquisition; and
(2) OPDIV visitor policies, including contractor personnel identity
badging requirements, are enforced and are provided to the contractor.
Subpart 304.70--Acquisition Instrument Identification Numbering
System
304.7000 Scope of subpart.
This subpart prescribes policy and procedures for assigning
identification numbers to contracts and related instruments, including
solicitation documents, purchase orders, and delivery orders. The HCA
(non-delegable) shall establish a numbering system within an OPDIV.
304.7001 Numbering acquisitions.
(a) Acquisitions which require numbering. Contracting activities
shall number the following acquisitions and related instruments in
accordance with the system prescribed in paragraphs (b), (c) and (d) of
this section:
(1) Contracts, including letter contracts, that exceed the micro-
purchase threshold or the acquisition of personal property or
nonpersonal services. (Note: The Contracting Officer shall also assign
the letter contract number to the superseding definitized contract.)
(2) Basic ordering agreements (BOAs) and BPAs.
(3) Requests for proposals and invitations for bids.
(4) Requests for quotations.
(b) Numbering system for contracts. The Contracting Officer shall
assign a number consisting of the following to all contracts which
require numbering (paragraph (a)(1) of this section):
(1) The three-digit identification code (HHS) of the Department.
(2) A one-digit alphabetic identification code of the servicing
agency.
AHRQ: A
BARDA: O
CDC: D
CMS: M
FDA: F
HRSA: H
IHS: I
NIH: N
PSC: P
SAMHSA: S
(3) The three-digit numeric identification code assigned by ASFR/
OGAPA/DA to the contracting office within the servicing agency.
(4) A four-digit fiscal year designation (e.g., 2009, 2010).
(5) A five-digit alphanumeric tracking number, the content of which
is
[[Page 62414]]
determined by the contracting office within the servicing agency.
(6) A one-digit code describing the type of contract action. For
example, the National Cancer Institute, NIH, may number its first
contract for fiscal year 2009 as HHSN261200900001C. (Note: When more
than one code may apply in a specific situation, or for additional
codes, refer to the DCIS Users' Manual or consult with the cognizant
DCIS coordinator/focal point for guidance on which code governs.):
A Commercial Item Acquisitions (including purchases using simplified
acquisition procedures in accordance with the FAR subpart 13.5 Test
program)
C New Definitive Contract
P Purchases using simplified acquisition procedures (other than
commercial items)
I IDC
O BOA
B BPA
F Facilities Contract
U Contracts placed with or through other Government departments, GSA
contracts, or against mandatory source contracts such as AbilityOne
and Federal Prison Industries (UNICOR)
L Lease Agreement
W Government-wide Acquisition Contract (GWAC)
E Letter Contract
G Federal Supply Schedule
M Micro-purchase
Q Multi-agency contract
(c) Numbering system for orders. The Contracting Officer shall
assign order numbers (e.g., task order numbers) to orders issued under
contracts. The order number shall be up to a seventeen-digit number
consisting of the following:
(1) The three-digit identification code (HHS) of the Department.
(2) A one-digit numeric identification code of the servicing
agency:
AHRQ: A
BARDA: O
CDC: D
CMS: M
FDA: F
HRSA: H
IHS: I
NIH: N
PSC: P
SAMHSA: S
(3) The three-digit numeric identification code assigned by ASFR/
OGAPA/DA to the contracting office within the servicing agency.
(4) An alphanumeric tracking number, up to ten characters, the
content of which is determined by the contracting office within the
servicing agency.
(d) Numbering system for solicitations. The HCA is responsible for
developing a numbering system for solicitations listed in paragraphs
(a)(3) and (a)(4) of this section.
(e) Assignment of identification codes. ASFR/OGAPA/DA shall assign
each contracting office a three-digit identification code. HCAs shall
request from ASFR/OGAPA/DA the assignment of codes for newly
established contracting offices. A listing of the contracting office
identification codes currently in use is contained in the DCIS Users'
Manual, available at http://dcis.hhs.gov.
Subpart 304.71--Review and Approval of Proposed Contract Actions
304.7100 Policy.
(a) The HCA (non-delegable) shall establish review and approval
procedures for proposed contract actions to ensure that--
(1) Contractual documents are in conformance with law, established
policies and procedures, and sound business practices;
(2) Contract awards properly reflect the mutual understanding of
the parties; and
(3) The Contracting Officer is informed of deficiencies and items
of questionable acceptability, and takes corrective action.
(b) The HCA shall designate acquisition officials to serve as
reviewers. Each HCA shall establish the criteria for determining which
contracts to review.
(c) Officials assigned responsibility for review and approval of
contract actions shall possess qualifications in the field of
acquisition commensurate with the level of review performed. However,
if an official is to serve as the Contracting Officer and sign the
contractual document, an appropriate official at least one level above
the Contracting Officer shall perform the review and approval function.
(d) The Contracting Officer shall review all contractual documents,
regardless of dollar value, prior to award to ensure the requirements
of paragraph (a) of this section are met.
SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
PART 305--PUBLICIZING CONTRACT ACTIONS
Subpart 305.2--Synopsis of Proposed Contract Actions
Sec.
305.202 Exceptions.
305.205 Special situations.
Subpart 305.3--Synopses of Contract Awards
305.303 Announcement of contract awards.
Subpart 305.5--Paid Advertisements
305.502 Authority.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 305.2--Synopsis of Proposed Contract Actions
305.202 Exceptions.
(b) When the Contracting Officer deems an advance notice is not
appropriate or reasonable, the Contracting Officer shall prepare a
memorandum citing all pertinent facts and details and send it through
appropriate acquisition channels, including the HCA, to Associate DAS
for Acquisition requesting an exception to synopsizing. The Associate
DAS for Acquisition shall review the request and decide whether an
exception is appropriate and reasonable. If it is, the Associate DAS
for Acquisition shall take the necessary coordinating actions required
by FAR 5.202(b). ASFR/OGAPA/DA shall promptly notify the contracting
office of the Associate DAS for Acquisition's determination on the
request.
305.205 Special situations.
(a) An OPDIV may issue an advance notice, entitled ``Research and
Development Sources Sought,'' in Federal Business Opportunities
(FedBizOpps), in accordance with the requirements of FAR 5.205(a). The
primary purpose of an R & D Sources Sought notice is to identify all
potential sources, regardless of organizational type and size
classification, and determine their capabilities to fulfill a potential
Government requirement. The notice is not intended to solicit
technical, scientific, or business information for project planning
purposes regarding existing or possible solutions. In the latter
instance, a Request for Information (RFI) may be used--see FAR
15.201(e) and 315.201(e).
(1) When using an R & D Sources Sought notice, an OPDIV shall not
request that potential sources provide more than the minimum
information necessary--see FAR 10.001(b), to determine whether they
have the apparent capability to perform a requirement and, therefore,
whether they should be included in any future competition. The notice
and the information received shall not be used to determine how well
respondents can perform a requirement, which can only be evaluated in
response to a solicitation. Accordingly, the notice shall not be used
to--
(i) Obtain capability statements that are evaluated and determined
acceptable or unacceptable;
(ii) Require cost/price proposals or detailed technical solutions;
(iii) Identify a prospective sole source; or
[[Page 62415]]
(iv) Exclude small business concerns.
(2) While not the primary intent of an R & D Sources Sought notice,
in addition to seeking information regarding all potential qualified R
& D sources, the notice may request that respondents provide
information regarding their organizational size classification. For
example, the notice may ask respondents to identify whether they are
small businesses; Historically Underutilized Business (HUB) Zone small
businesses; service-disabled, veteran-owned small businesses; 8(a)
small businesses; veteran-owned small businesses; woman-owned small
businesses; or small disadvantaged businesses in order to determine the
appropriate acquisition method, including whether a set-aside is
possible. However, such a notice shall not be used solely to determine
the size classification of respondents for a proposed R & D
acquisition. In such instances, a ``Small Business Sources Sought''
notice may be used (see 319.202-2), in lieu of the procedures in this
section.
(3) OPDIVs shall follow the standard HHS instructions for
completing an R & D Sources Sought notice. The template for the notice
is available on the ASFR/OGAPA/DA Internet Web site. The Contracting
Officer shall post the notice in FedBizOpps by selecting and completing
a Sources Sought notice, accessible on the FedBizOpps ``Notices'' page
at: http://www.fedbizopps.gov. Additional information may be included
in the notice in accordance with OPDIV procedures. The Contracting
Officer shall document, in the form of a memorandum to the file, the
results of the review by technical personnel of information submitted
in response to the notice, including whether each respondent appears to
be capable of performing the requirement. The Contracting Officer shall
attach a copy of the analysis provided by the technical personnel to
the memorandum.
(4) In instances where a sufficient number of sources has not been
identified to compete for a non-R & D project, an OPDIV may use the
procedures specified in 310.001, including the issuance of a ``Sources
Sought'' notice, as appropriate, in lieu of the procedures in this
section.
Subpart 305.3--Synopses of Contract Awards
305.303 Announcement of contract awards.
(a) Public Announcement. The Contracting Officer shall report
awards over $3.5 million, not otherwise exempt under FAR 5.303, to the
Office of the Assistant Secretary for Legislation (OASL) (Congressional
Liaison). The Contracting Officer shall provide a copy of the contract
or award document face page to the referenced office prior to the day
of award or in sufficient time to allow OASL to make an announcement by
5 p.m. Washington, DC time on the day of award. The Contracting Officer
may also provide notification by e-mail or facsimile.
Subpart 305.5--Paid Advertisements
305.502 Authority.
The Contracting Officer may advertise or place notices in
newspapers and periodicals to announce that the contracting office is
seeking proposals, quotations, or bids, as appropriate.
PART 306--COMPETITION REQUIREMENTS
Subpart 306.2--Full and Open Competition after Exclusion of Sources
Sec.
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.
306.302-7 Public interest.
306.303 Justifications.
306.303-1 Requirements.
306.304 Approval of the justification.
Subpart 306.5--Competition Advocates
306.501 Requirement.
306.502 Duties and responsibilities.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 306.2--Full and Open Competition after Exclusion of Sources
306.202 Establishing or maintaining alternative sources.
(a) The reference to the agency head in FAR 6.202 (a) shall mean
the appropriate Competition Advocate (CA) cited in 306.501.
(b)(1) The Contracting Officer shall prepare the required
determination and findings (D & F) based on the data provided by
program personnel. The appropriate CA (non-delegable) shall sign the D
& F.
Subpart 306.3--Other Than Full and Open Competition
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.
(a)(2)(iv) Follow-on contracts for the continuation of R & D
studies on long-term social and health programs, research studies, or
clinical trials may be deemed to be available only from the original
source when it is likely that award to any other source would result in
unacceptable delays in fulfilling HHS' or the OPDIV's requirements.
(b) Application.
(5) when the head of the sponsoring program office has determined
that the activity must acquire only specified makes or models of
technical equipment or parts to meet the activity's program
responsibility to test and evaluate certain kinds and types of
products, and only one source is available. (Note: This criterion is
limited to testing and evaluation purposes only and not for initial
outfitting or repetitive acquisitions. Project Officers shall support
the use of this criterion with citations from their agency's
legislation and the technical rationale for the item of equipment
required.)
306.302-7 Public interest.
(a) Authority.
(2) Agency head, in this instance, means the Secretary.
(c) Limitations. The Contracting Officer shall prepare a written
request for approval and provide it through appropriate acquisition
channels, including the HCA and Associate DAS for Acquisition, to the
Secretary. The request shall include a D & F for the Secretary's
signature that contains all pertinent information to support the
justification for exercising the exemption to competition and a letter
for the Secretary's signature notifying Congress of the determination
to award a contract under the authority of 41 U.S.C. 253(c)(7).
306.303 Justifications.
306.303-1 Requirements.
(b) The responsible Program Office must provide a written
justification whenever it requests that goods or services be acquired
without obtaining full and open competition. The justification must be
submitted with the AP or other acquisition request document--see
Subpart 307.71. The Project Officer has responsibility for preparing
the justification with
[[Page 62416]]
assistance, as necessary, from the Contracting Officer.
(1) Justifications for acquisitions at or below the simplified
acquisition threshold may be in the form of a paragraph or paragraphs
contained in the requisition or other acquisition request document.
Justifications for acquisitions in excess of the simplified acquisition
threshold shall be in the form of a separate, self-contained document,
prepared in accordance with FAR 6.303 and 306.303, and titled
``Justification for Other Than Full and Open Competition'' (JOFOC). HHS
requires use of a standard format for a JOFOC. The template for the
justification is available on the ASFR/OGAPA/DA Internet Web site.
Additional information may be included in the JOFOC template in
accordance with OPDIV procedures.
(2) Regardless of the dollar amount of the acquisition,
justifications shall--
(i) Fully describe what is to be acquired;
(ii) Provide a specific explanation of why it is not feasible to
obtain full and open competition;
(iii) Be supported by verifiable facts, rather than untested or
unsubstantiated opinions or conclusions; and
(iv) Be written in a manner to permit an individual without
technical knowledge of the requirement to understand the supporting
rationale.
(3) Preliminary arrangements with, or verbal or written commitments
to, a proposed sole-source contractor shall be avoided given the
statutory requirement to obtain full and open competition to the
maximum extent practicable.
(4) Justifications for orders to be placed under FSS contracts that
limit consideration of contractors shall comply with FAR 8.405-6 and
308.405-6.
306.304 Approval of the justification.
Certification, concurrence, and approval requirements. The Project
Officer, the Project Officer's immediate supervisor, the head of the
sponsoring program office, and the Contracting Officer shall certify
that the justification is accurate and complete by signing the JOFOC.
For acquisitions in the dollar amount cited in FAR 6.304(a)(2) through
(a)(4), the CCO, if applicable, and the HCA shall indicate their review
of, and concurrence with, the justification by signing the JOFOC.
(a) The approving officials for JOFOCs are as follows:
(1) The Contracting Officer shall exercise this approval authority
unless a higher approval level is required by OPDIV procedures.
(2) The CAs are listed in 306.501. This approval authority is not
delegable.
(3) The CA shall exercise this approval authority, except where the
individual designated as the CA does not meet the requirements of FAR
6.304 (a)(3)(ii). This approval authority is not delegable.
(4) HHS' SPE is the Associate DAS for Acquisition.
(c) A class justification shall be processed in the same manner as
an individual justification. A class justification may consist of
contracts/orders for the same or related supplies and services or other
contract/order actions that require essentially identical
justifications.
Subpart 306.5--Competition Advocates
306.501 Requirement.
The HHS CA is the Director, Strategic Acquisition Service, PSC. The
CAs for each of HHS' contracting activities are as follows:
AHRQ: Director, Office of Performance Accountability, Resources and
Technology
BARDA: Chief of Mission Support and Acquisition Policy
CDC: Chief Information Officer
CMS: Chief Operating Officer
FDA: Deputy Commissioner for Administration
HRSA: Associate Administrator, Office of Operations
IHS: Director, Office of Management Services
NIH: Senior Scientific Advisor for Extramural Research, Office of
Extramural Research (R&D) and Senior Advisor to the Director (other
than R&D)
PSC: Director, Strategic Acquisition Service
SAMHSA: Executive Officer
306.502 Duties and responsibilities.
(a) Each OPDIV CA shall prepare an annual Competition Advocate
Report (CAR), covering the prior fiscal year, in accordance with the
requirements of FAR 6.502(b)(2) and 306.502(b), and provide it to the
HHS CA not later than November 16 of each year or the next business
day, if the due date falls on a non-business day. NIH's two CAs shall
prepare and sign a joint report covering their respective areas of
responsibility.
(b) HHS requires that each CAR be prepared in a standard format.
The template for the report is available on the ASFR/OGAPA/DA Internet
Web site. As long as the standard headings are included and required
information is addressed, the OPDIV may include additional information
in accordance with OPDIV procedures.
(1) The CAR shall be based on information and data for all
acquisitions that exceed the micro-purchase threshold for the
applicable fiscal year, unless otherwise noted in the standard format.
(2) Each OPDIV CA shall obtain the information and data needed for
preparation of the CAR from the responsible HCA and/or the CCO, as
appropriate, who shall assist the CA in preparing the CAR.
(3) Prior to forwarding the CAR to the HHS CA, each OPDIV CA shall
provide the CAR to the responsible HCA, who shall review and approve it
for accuracy and completeness.
(c) The HHS CA shall consolidate all OPDIV CARs and provide an HHS-
wide CAR that addresses all requirements of FAR 6.502(b) to the HHS SPE
and the CAO by December 20 of each year or the next business day, if
the due date falls on a non-business day.
PART 307--ACQUISITION PLANNING
Subpart 307.1--Acquisition Planning
Sec.
307.104 General procedures.
307.104-70 Acquisition strategy.
307.104-71 Purpose and timing.
307.105 Contents of written acquisition plans.
307.108-70 Telecommuting of contractor employees.
Subpart 307.70--Considerations in Selecting an Award Instrument.
307.7000 Scope of subpart.
307.7001 Distinction between acquisition and assistance.
307.7002 Procedures.
Subpart 307.71--Acquisition Plan.
307.7100 Scope of subpart.
307.7101 Policy.
307.7102 Content.
307.7103 Format.
307.7104 Review and certification.
307.7105 Transmittal.
307.7106 Acquisition milestones.
307.7107 Responsibilities.
307.7108 Statement of work.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 307.1--Acquisition Planning
307.104 General procedures.
(a) Each contracting activity shall prepare an Annual Acquisition
Plan (AAP) as far in advance of each fiscal year as possible, in
accordance with the following:
(1) The AAP shall contain all anticipated acquisition actions for
the coming fiscal year that exceed the simplified acquisition
threshold, including new acquisitions and contract/order modifications.
The AAP must include--
(i) The aggregate dollars planned for simplified acquisitions by
quarter;
(ii) Any long lead-time acquisitions that will be awarded in future
fiscal years (see paragraph (c) below); and
[[Page 62417]]
(iii) Proposed multi-agency and intra-agency contracts--see 317.70.
(2) The HCA or the CCO, as appropriate, shall prepare the AAP and
obtain the information needed for its preparation from the responsible
program planning/budget office and/or the program offices.
(3) Contracting activities shall use the AAP for reporting purposes
and workload scheduling and monitoring.
(4) The HCA/CCO and Small Business Specialist (SBS) in the Office
of Small and Disadvantaged Business Utilization (OSDBU) shall review
the AAP at least quarterly, with input from the cognizant program
office, and modify it, as appropriate, during the fiscal year, with
updated information, particularly regarding the specific acquisition
method the contracting activity plans to use.
(5) HHS requires use of a standard format for an AAP. The template
for the plan is available on the ASFR/OGAPA/DA Internet Web site. For
the data elements specified in the AAP format, the HCA/CCO may include
information in addition to that required by the standard instructions
accompanying the format.
(b) As early as possible following completion of the AAP, the
Contracting Officer shall initiate discussions with the assigned
Project Officer, in consultation with the OSDBU SBS, for each action
that exceeds the simplified acquisition threshold. As appropriate, the
discussions shall include--
(1) Determining the intended acquisition strategy and contract/
order type, including the use of options;
(2) Reviewing the SOW, if available, for adequacy and ensuring that
a PWS is used for services, where practicable;
(3) Evaluating the potential for, and maximizing the use of,
competitive procedures;
(4) Performing market research, identifying potential sources, and
determining set-aside potential and small business subcontracting
opportunities;
(5) Assessing the availability of commercial items;
(6) Determining required clearances/approvals and supporting
documentation; and
(7) Preparing an acquisition milestone schedule;
(8) Determining the best multi- or intra-agency contracting
activity to assist in awarding a contract on the requiring
organization's behalf, if applicable; and
(9) Determining in the case of direct ordering that the chosen
acquisition vehicle is the best way to obtain the required product or
service, if a vehicle other than those listed in 317.7002(b) is
proposed.
(c) The HCA or designee (not lower than the CCO) shall establish
standard lead-times for processing various types of acquisitions and
applicable fiscal year deadlines for receipt of requirements to allow
for well-planned and timely awards. The Project Officer shall initiate
planning, to the extent possible, for certain requirements, such as
major capital IT investments, major capital construction investments,
and R & D projects that require peer review, at least 24 months before
planned award, given the clearance/approval requirements and lead-time
required for such complex acquisitions.
(d) The outcome of the discussions referenced in paragraph (b)
above shall be an agreement concerning the acquisition approach and
documentation required. For those actions that require development of a
written AP--see 307.7101, for which the Project Officer has ultimate
responsibility, these discussions shall also result in an agreement
concerning--
(1) Which elements of the AP the Contracting Officer will assist
the Project Officer in preparing; and
(2) The date (as specified in the milestone schedule) the Project
Officer will provide the AP to the CCO or designee.
307.104-70 Acquisition strategy.
Program and Project Managers responsible for major IT capital
investments (and for any other investments designated by the HHS CIO,
DASFMP, the CAO, or the cognizant HCA) shall prepare an acquisition
strategy using the HHS acquisition strategy template. The template for
the acquisition strategy is available on the ASFR/OGAPA/DA Internet Web
site. Program and Project Managers must initiate the acquisition
strategy for major IT capital investments as part of the planned
investment's business case, usually during the Enterprise Performance
Life Cycle concept phase.
307.104-71 Purpose and timing.
(a) The purpose of an acquisition strategy is to describe the
overall approach for acquiring capabilities needed to fulfill
investment/programmatic objectives. Acquisition strategy development
requires identification of issues and risks that might impact an
acquisition(s) to allow early action to eliminate or mitigate the
issues and risks.
(b) An acquisition strategy differs from an AP with respect to the
timing of its development and the level of detail required.
(1) An acquisition strategy is established at the inception
(concept phase) of an investment/acquisition to support the business
case, identify and mitigate risks, and begin the acquisition planning
process. An acquisition strategy addresses the major issues surrounding
business objectives, competitive forces, and various risks that need to
be considered.
(2) An acquisition strategy is a living document used throughout
the investment's life-cycle. It should be continuously updated with the
active involvement of the Program or Project Manager and the
Contracting Officer at appropriate points, as plans for the investment/
acquisition mature. An acquisition strategy ultimately will result in
an AP--see 307.71.
(3) An AP, which is required to support proposed acquisitions
expected to exceed $500,000 (inclusive of options, with certain
exceptions)--see 307.7101, is developed closer to the time of
solicitation. The AP addresses not only those issues in the acquisition
strategy, but also the tactical details of how the acquisition will be
executed.
307.105 Contents of written acquisition plans.
FAR 7.105 specifies the content requirements of a written AP.
Subpart 307.71 incorporates and supplements those requirements.
307.108-70 Telecommuting of contractor employees.
(a) SOWs/PWSs shall permit offerors or contractors to specify their
own place(s) of performance (hence authorize their employees to
telecommute), except as follows:
(1) The Project Officer may restrict place of performance (hence
restrict an offeror's or contractor's telecommuting) for any part of an
SOW/PWS, after determining that the work or any portion thereof must be
performed at a specified place of performance; or security would be
compromised. The Project Officer must document this determination in
writing and send a copy of the determination, along with the SOW/PWS,
to the Contracting Officer. The Project Officer must also address in an
HHS AP (or other acquisition request document) any performance
requirements or security considerations that restrict place of
performance--see 307.71.
(2) In accordance with FAR 7.108(a), if the Contracting Officer
concurs with the Project Officer's determination in (a)(1) above, then
the Contracting Officer must sign the Project Officer's
[[Page 62418]]
determination; include it in the official contract file; and specify
any prohibition against telecommuting in the solicitation and resultant
contract.
(3) In accordance with FAR 7.108(a), if the Contracting Officer
decides to restrict a place of performance that the Project Officer did
not restrict, then the Contracting Officer must document in writing the
determination to preclude telecommuting in part or in whole; include
the determination in the official contract file; and specify any
prohibition against telecommuting in the solicitation and resultant
contract.
(b) If the Contracting Officer disagrees with the Project Officer's
determination in (a)(1) above, then the Contracting Officer shall
return both the SOW/PWS and determination to the Project Officer for
further consideration.
(c) The Contracting Officer shall ensure that authorized
telecommuting of contractor employees does not result in increased cost
or price to the Government.
Subpart 307.70--Considerations in Selecting an Award Instrument
307.7000 Scope of subpart.
This subpart provides guidance on the appropriate selection of
award instruments to fulfill program needs consistent with 31 U.S.C.
6301-6308. This subpart explains the use of the contract as the award
instrument for acquisition relationships and a grant or cooperative
agreement as instruments for financial assistance relationships.
307.7001 Distinction between acquisition and assistance.
(a) 31 U.S.C. 6301-6308 requires the use of contracts to acquire
property or services for the direct benefit or use of the Government
and grants or cooperative agreements to transfer money, property,
services, or anything of value to eligible entities to accomplish a
public purpose of support or stimulation authorized by Federal statute.
(b) OPDIVs shall use a contract as the legal instrument to reflect
a relationship between the Government and an entity whenever the--
(1) Principal purpose of the instrument is the acquisition, by
purchase, lease, or barter, of property or services for the direct
benefit or use of the Government; or
(2) Government determines in a certain situation that specific
needs can be satisfied best by using the acquisition process. However,
this authority does not permit circumventing the criteria for use of
acquisition or assistance instruments. Use of this authority is
restricted to extraordinary circumstances and requires the Associate
DAS for Acquisition's prior approval.
(c) OPDIVs shall use a grant or cooperative agreement as the legal
instrument to reflect a relationship between the Government and an
entity whenever the principal purpose of the relationship is the
transfer of money, property, services, or anything of value to
accomplish a public purpose of support or stimulation authorized by
Federal statute.
(1) OPDIVs shall use a grant when no substantial programmatic
involvement is anticipated between the Government and the recipient
during performance of the contemplated activity.
(2) OPDIVs shall use a cooperative agreement when substantial
programmatic involvement is anticipated between the Government and the
recipient during performance of the contemplated activity.
(d) As a general rule, OPDIVs shall use contracts for the following
purposes:
(1) Evaluation (including research of an evaluative nature) of the
performance of Government programs or projects or grantee activity
initiated by the funding agency for its direct benefit or use.
(2) Technical assistance rendered to the Government, or on behalf
of the Government, to any third party, including those receiving grants
or cooperative agreements.
(3) Surveys, studies, and research which provide specific
information desired by the Government for its direct activities, or for
dissemination to the public.
(4) Consulting services or professional services of all kinds if
provided to the Government or, on behalf of the Government, to any
third party.
(5) Training projects where the Government selects the individuals
or specific groups whose members are to be trained or specifies the
content of the curriculum (not applicable to fellowship awards).
(6) Production of publications or audiovisual materials the
Government requires primarily for the conduct of its direct operations.
(7) Design or development of items for Government use or pursuant
to agency definition or specifications.
(8) Conferences conducted on the Government's behalf.
(9) Generation of management information or other data for
Government use.
307.7002 Procedures.
(a) OPDIV program officials shall use existing budget and program
planning procedures to propose new activities and major changes in
ongoing programs. OPDIV program officials shall meet with the HCA and
the Chief Grants Management Officer, or their designees, as necessary,
to determine whether award is to be made through the acquisition or
assistance process. This determination shall normally occur prior to
the time when the AAP is reviewed and approved so that the AAP will
reflect all known proposed contract actions. The HCA shall fully
document a shift from one award instrument to another in the
appropriate files to show a fundamental change in program purpose that
unequivocally justifies the rationale for the shift.
(b) The Contracting Officer shall confirm the appropriateness of
the use of the contract instrument when reviewing the AP or other
acquisition request document.
(c) OPDIVs shall ensure that the choice of instrument is in
accordance with 31 U.S.C. 6301-6308 and applicable HHS policies. If,
however, there are major individual transactions or programs which
contain elements of both acquisition and assistance in such a way that
they cannot be characterized as having a principal purpose of one or
the other instrument, OPDIVs shall obtain guidance from ASFR/OGAPA/DA,
through appropriate acquisition channels, including the HCA, before
proceeding with a determination.
(d) Any public notice, program announcement, solicitation, or
request for applications or proposals, or request for quotations shall
indicate whether the intended relationship will be one of acquisition
or financial assistance and specify the award instrument the OPDIV will
use.
Subpart 307.71--Acquisition Plan
307.7100 Scope of subpart.
FAR 7.102 requires acquisition planning for all acquisitions. This
subpart establishes: (a) when a written AP is required; (b) its
contents and format; and (c) the need for review of the AP to certify
that it is accurate, complete, and in the proper format. This subpart
also establishes the documentation requirements for those acquisitions
not requiring an AP.
307.7101 Policy.
(a) An AP is required for all acquisitions, to be placed by an HHS
contracting office, expected to exceed $500,000 (inclusive of options)
with the following exceptions:
(1) Letter contracts.
(2) Unsolicited proposals.
(3) Regulated utility services available from only one source.
[[Page 62419]]
(4) Proposals under the Small Business Innovative Research (SBIR)
and Small Business Technology Transfer (STTR) programs.
(5) Acquisition of commercial items/services--see FAR 2.101,
including orders placed under FSS contracts meeting the definition of a
commercial item/service, and not exceeding $5.5 million [$11 million
for acquisitions as described in FAR 13.500(e)].
(6) Task orders or delivery orders of any dollar amount placed
under--
(i) An IDIQ contract, other than a GWAC; or
(ii) A BPA, provided there is an approved acquisition planning
document for the original action, and there is no significant deviation
from that plan.
(7) Orders of any dollar amount placed under HHS-wide strategic
sourcing vehicles.
(8) Contract/order modifications that--
(i) Exercise options;
(ii) Only provide additional funding; or
(iii) Make changes authorized by the Changes clause.
(9) Assisted acquisitions processed pursuant to an interagency
agreement. However, the OPDIV must comply with the requirements
specified in 317.5 Interagency Agreements under the Economy Act and
317.70, Multi-agency and Intra-agency Contracts.
(b) In urgent or other justifiable cases, such as an emergency
acquisition--see FAR Part 18, the HCA may waive, in writing, the
requirement for completion of an AP. An HCA shall not approve a waiver
request based on the lack of advance planning.
(1) The Project Officer, the Project Officer's immediate
supervisor, the head of the sponsoring program office, the Contracting
Officer, and other signatories shall sign the waiver request in
accordance with OPDIV policies. In OPDIVs where a CCO(s) is designated,
as defined in 302.101, the cognizant CCO also shall sign the waiver
request.
(2) HHS has established a standard format for preparing an AP
waiver request. The template for the waiver request is available on the
ASFR/OGAPA/DA Internet Web site. Contracting activities shall use this
format when requesting a waiver.
(3) The OPDIV shall provide ASFR/OGAPA/DA a copy of any approved
waiver request within 5 business days after HCA approval.
(c) For those acquisitions not requiring an AP, other than assisted
acquisitions processed pursuant to an interagency agreement--see 317.5
and 317.70, the Project Officer shall provide an acquisition request
document (e.g., memorandum, requisition, or other form of transmittal)
to the CCO or designee, requesting completion of the required action.
The request must include, as applicable: a SOW/PWS (including
deliverables and reporting requirements); a certified funding document;
source selection strategy and criteria; necessary clearances,
approvals, and justifications (e.g., a JOFOC); a milestone schedule;
and an independent Government cost estimate.) In addition, OPDIVs shall
use the content requirements of the AP as a reference in determining
what other information and documentation is necessary to support the
intended acquisition. Alternatively, OPDIVs may prescribe use of an AP
for acquisitions excepted under 307.7101(a)(i) through (a)(viii).
307.7102 Content.
In accordance with 307.105, the FAR, HHSAR, and other Federal
requirements that OPDIVs must consider in developing an AP, as well as
its format, are stipulated in 307.7103. An AP shall address each
applicable element. As indicated in the instructions, elements that are
not applicable to an individual acquisition shall be marked ``N/A.''
The scope and depth of an AP may vary depending on the nature,
complexity, and estimated cost of the proposed acquisition. As a result
of new or revised FAR requirements or other Federal directives, the--
(a) HCA or designee may make any needed interim changes to the AP;
(b) HCA or designee shall notify ASFR/OGAPA/DA of the need for
revision(s) to the acquisition; and
(c) ASFR/OGAPA/DA shall update the AP, which would supersede any
interim HCA (or designee) changes made to the acquisition plan for
future acquisitions.
307.7103 Format.
(a) HHS has established a standard format for preparing an AP. The
template for the AP is available on the ASFR/OGAPA/DA Internet Web
site.
(b) OPDIVs may use the prescribed format without modification or
use it as a guideline, as long as the format used by the OPDIV complies
with the requirements specified in subparagraphs (c) and (d) below.
(c) An AP must consist of seven (7) parts with standard headings,
as follows:
Part I Transmittal and Approval Form.
Part II Summary Sheet.
Part III Project Considerations and Information.
Part IV Clearance/Approval Checklist.
Part V Acquisition Milestone Schedule.
Part VI Independent Government Cost Estimate.
Part VII Attachments.
(d) Within each of the seven parts, there are required components
that an OPDIV cannot modify and specific areas where OPDIVs can make
changes. The table in the Requirements and Responsibilities section of
the AP cites the titles, paragraph/subparagraph headings, narrative,
and other requirements that must appear in each part of an AP in the
specified format, as well as permissible modifications.
307.7104 Review and certification.
Before the Project Officer transmits the AP to the CCO or
designee--see 307.7105, the head of the sponsoring program office
(typically a Division Director or equivalent), Project Officer, Funds
Certification Official, Contracting Officer, and other signatories in
accordance with OPDIV policies, shall review the AP and certify that it
provides all required information in the prescribed format and the
following:
(a) Vague and ambiguous language has been eliminated.
(b) A thorough technical review of the SOW/PWS has been completed.
(c) The project is structured by phases or tasks, as appropriate.
(d) Methods are available to assess the contractor's performance.
(e) The acquisition mechanism is appropriate--i.e., the principal
purpose of the project is to acquire supplies or services for the
direct benefit or use of the Government.
(f) The planned obligation of appropriated funds for the project
satisfies a bona fide need of the requiring office arising in the
fiscal year for which the appropriation was made.
307.7105 Transmittal.
The Project Officer shall convey the signed AP to the CCO or
designee by providing a completed Part I--Transmittal and Approval
Form, with other parts of the AP attached, no later than the date
agreed to in the acquisition milestone schedule, unless the officials
establish a different date by mutual agreement.
307.7106 Acquisition milestones.
The Contracting Officer shall retain the acquisition milestone
schedule in the contract file and update/revise it to track progress of
the acquisition. The milestone schedule signatories (see the
Requirements and Responsibilities section of the AP--Part V of the
table) shall mutually agree to any revisions to the milestone dates
that will impact meeting the scheduled award date. Milestone schedule
signatories shall
[[Page 62420]]
report a failure to meet established milestones to a higher level
official in accordance with OPDIV procedures.
307.7107 Responsibilities.
The following table summarizes the responsibilities of the various
organizations and officials for acquisition planning:
------------------------------------------------------------------------
Responsible
Acquisition planning organization/official HHSAR reference
------------------------------------------------------------------------
Make necessary interim changes OPDIV HCA or designee. 307.7102.
to the AP and notify ASFR/
OGAPA/DA of changes needed.
Update the AP to reflect new ASFR/OGAPA/DA......... 307.7102.
or revised FAR and other
Federal directives.
Prepare the AAP and update it OPDIV-HCA/CCO......... 307.104,
quarterly, as appropriate. subparagraph
(a).
Establish standard acquisition OPDIV-HCA/CCO......... 307.104,
lead-times and deadlines for subparagraph
receipt of requirements for (d).
award in an applicable fiscal
year.
Identify and plan OPDIV-Project Officer. 307.104,
requirements, particularly subparagraph
complex, long lead-time (d).
acquisitions, well in advance
of the fiscal year in which
they are to be awarded.
(i) Participate in acquisition OPDIV-Project Officer. (i) 307.104,
planning; (ii) prepare the subparagraph
AP; and (iii) provide the AP (c);
to the Contracting Officer. (ii) 307.104,
subparagraph
(e); and (iii)
307.7105.
(i) Participate in acquisition OPDIV-Contracting (i) 307.104,
planning; and (ii) assist the Officer. subparagraph
Project Officer in AP (c);
preparation. (ii) 307.104,
subparagraph
(e).
Waive requirement for OPDIV-HCA............. 307.7101,
development of an AP when subparagraph
justified. (b).
Review and certify that an AP OPDIV-Head of the 307.7104
is complete, accurate, and in Sponsoring Program
the proper format. Office, Project
Officer, Funds
Certification
Official, Contracting
Officer, and other
signatories in
accordance with OPDIV
policies.
Meet established acquisition OPDIV-Project Officer 307.7106.
milestone dates. and Contracting
Officer.
------------------------------------------------------------------------
307.7108 Statement of work.
(a) General. An SOW describes the work or services a contractor is
to perform in reaching an end result without describing the method that
the contractor shall use, unless the method of performance is critical
or required in order to obtain successful performance. An SOW shall be
clear and concise; completely define the responsibilities of both the
contractor and the Government; and be worded to make misinterpretation
virtually impossible.
(b) Term (level of effort)form and completion form SOWs. Term-form
(level of effort) SOWs essentially require the furnishing of technical
effort, which may include a report thereof, while completion-form SOWs
require development of tangible items designed to meet specific
performance and/or design characteristics--see FAR 16.306(d) for this
distinction.
(1) Term (or level of effort). A term or level of effort-form SOW
is appropriate for research where the objective is to discover the
feasibility of later development or to gather general information. A
term or level of effort-form SOW specifies that some number of labor
hours be expended on a particular course of research or that a certain
number of tests be run, without reference to any intended conclusion.
(2) Completion. A completion-form SOW is appropriate for
development work where the feasibility of producing an end item is
already known. A completion-form SOW may describe what is to be
achieved through the contracted effort, such as development of new
methods, new end items, or other tangible results.
(c) Phasing. Individual research, development, or demonstration
projects frequently lie well beyond the present state of the art and
entail procedures and techniques of great complexity and difficulty.
Under these circumstances, a contractor, no matter how carefully
selected, may be unable to deliver the desired result. Moreover, the
job of evaluating the contractor's progress is often difficult. Such a
contract is frequently phased and often divided into stages of
accomplishment, each of which the contractor must complete and the
Contracting Officer approve before the contractor may proceed to the
next phase or stage. Phasing makes it necessary to develop methods and
controls, including reporting requirements for each phase of the
contract and criteria for evaluation of the report submitted, that will
provide, at the earliest possible time, appropriate data for making
decisions relative to future phases. A phased contract, such as one for
an R & D or demonstration project, may include stages of
accomplishment. Within each phase, there may be a number of tasks that
the SOW should include. When phases of work can be identified, the SOW
shall provide for phasing and the solicitation shall require offerors
to submit proposed costs by phases. The resultant contract shall
reflect costs by phases, require the contractor to identify incurred
costs by phases, establish delivery schedules by phase, and require the
written acceptance of each phase. The Contracting Officer shall not
allow contractors to incur costs for phases that are dependent upon
successful completion of earlier phases until the Contracting Officer
provides written acceptance of the prior work.
(d) Elements of the SOW. The elements of the SOW may vary with the
objective, complexity, size, and nature of the acquisition. In general,
the SOW shall include the following:
(1) Purpose of the project. This includes a general description of
the objectives of the project and the desired results.
(2) Background information. This includes a brief history of the
project and the importance of the project to the overall program
objectives.
(3) A detailed description of the technical requirements. The SOW
shall provide sufficient detail to accurately reflect the Government's
requirement. It shall state what is to be accomplished without
prescribing the method the contractor is to use and shall include
performance standards, if applicable. See 307.104(b)(2) and FAR 37.602
for guidance on preparation of a PWS. An SOW may include tasks and
subtasks. The degree of breakout depends on the size and complexity of
the project. An
[[Page 62421]]
SOW shall indicate whether the tasks are sequential or concurrent.
(4) Reference material. This includes an explanation of all
reference material a contractor needs to carry out the project; the
applicability of the reference material; and a statement as to where
potential offerors can obtain the material.
(5) Level of effort. When a level of effort is necessary, the SOW
shall specify the number and type of personnel required, if known, and
the type and degree of expertise.
(6) Special requirements (as applicable). This includes providing,
in a separate section, any unusual or special contractual requirements
that may affect performance. For example, the SOW shall specify
separately the work requirements to implement information security
management requirements--see 339.71 for additional information.
(7) Deliverables and reporting requirements. This includes clearly
and completely describing all deliverables and reports, including the
time frame for completion, the format, and the required number of
copies.
PART 308--REQUIRED SOURCES OF SUPPLIES AND SERVICES
Subpart 308.4--Federal Supply Schedules
Sec.
308.404 Use of Federal Supply Schedules.
308.405-6 Limited source justification and approval.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 308.4--Federal Supply Schedules
308.404 Use of Federal Supply Schedule.
(f) Technical Evaluation. When conducting a technical evaluation of
quotations or proposals received under FAR Part 8, the provisions of
315.305(a)(3) apply.
308.405-6 Limited source justification and approval.
(g) (1) As required by FAR 8.405-1 or 8.405-2, the responsible
program office must provide a written justification whenever it
requests an acquisition under the FSS program that restricts
consideration of the number of schedule contractors or to an item
peculiar to one manufacturer. The justification must be submitted with
the AP or other acquisition request document--see 307.71. The Project
Officer has responsibility for preparing the justification with
assistance, as necessary, from the Contracting Officer.
(i) Justifications for orders at or below the simplified
acquisition threshold may be in the form of a paragraph or paragraphs
contained in the requisition or other acquisition request document.
Justifications for orders in excess of the simplified acquisition
threshold shall be in the form of a separate, self-contained document,
prepared in accordance with FAR 8.405-6(g) and 308.405-6(g), and titled
``Limited Source Justification'' (LSJ). HHS requires use of a standard
format for an LSJ. The template for the justification is available on
the ASFR/OGAPA/DA Internet Web site. Additional information may be
included in the LSJ template in accordance with OPDIV procedures.
(ii) Regardless of dollar amount of the acquisition, justifications
shall--
(A) Fully describe what is to be acquired;
(B) Cite specific reasons that explain why it is necessary to
restrict consideration of sources;
(C) Be supported by verifiable facts rather than untested or
unsubstantiated opinions or conclusions; and
(D) Be written in a manner to permit an individual without
technical knowledge of the requirement to understand the supporting
rationale.
(iii) Preliminary arrangements with, or verbal or written
commitments to, a proposed contractor shall be avoided given the
requirement to obtain competition for FSS orders using the procedures
in FAR Subpart 8.4--see also FAR 6.102(d)(3).
(iv) Justifications for non-FSS orders to be awarded without full
and open competition shall comply with FAR 6.303 and 306.303.
(h) Justification approvals.
Certification, concurrence, and approval requirements. The Project
Officer, the Project Officer's immediate supervisor, the head of the
sponsoring program office, and the Contracting Officer shall certify
that the justification is accurate and complete by signing the LSJ. For
acquisitions in the dollar amount cited in FAR 8.405-6(h)(2) through
(h)(4), the CCO, if applicable, and the HCA shall indicate their review
of, and concurrence with, the justification by signing the LSJ. The
approving officials for LSJs are as follows:
(1) The Contracting Officer shall exercise this approval authority
unless a higher approval level is required by OPDIV procedures.
(2) The CAs are listed in 306.501. This approval authority is not
delegable.
(3) The CA shall exercise this approval authority, except where the
individual designated as the competition advocate does not meet the
requirements of FAR 8.405-6(h)(3)(ii). This approval authority is not
delegable.
(4) The HHS SPE is the Associate DAS for Acquisition.
PART 309--CONTRACTOR QUALIFICATIONS
Subpart 309.4--Debarment, Suspension, and Ineligibility
Sec.
309.403 Definitions.
309.404 List of parties excluded from Federal procurement and non-
procurement programs.
309.405 Effect of listing.
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.
309.470-2 Contents of reports.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 309.4--Debarment, Suspension, and Ineligibility
309.403 Definitions.
Acquiring agency's head or designee, as used in the FAR, means,
unless otherwise stated in this subpart, the HCA. The HCA may make the
required justifications or determinations and take the necessary
actions specified in FAR 9.405, 9.406 and 9.407, only after obtaining
the written approval of the debarring or suspending official, as
appropriate.
Debarring official means the Deputy Assistant Secretary for Grants
and Acquisition Policy and Accountability (DAS/GAPA).
Initiating official means the Contracting Officer, the HCA, the
Associate DAS for Acquisition, or the Inspector General (IG).
Suspending official means the DAS/GAPA.
309.404 List of parties excluded from Federal procurement and non-
procurement programs.
(c) The ASFR/OGAPA/DA shall perform the actions required by FAR
9.404(c).
(4) The ASFR/OGAPA/DA shall maintain all documentation the
initiating official submits to recommend the debarment or suspension
action and all correspondence and other pertinent documentation
generated during the review.
309.405 Effect of listing.
(a) The HCA (non-delegable) may, with the written concurrence of
the debarring or suspending official, make the determinations
referenced in FAR 9.405(a) regarding contracts.
[[Page 62422]]
(1) If a Contracting Officer considers it necessary to award a
contract, or consent to a subcontract with a debarred or suspended
contractor, the Contracting Officer shall prepare a determination,
including all pertinent documentation, and submit it through
appropriate acquisition channels to the HCA. The documentation shall
include the date by which approval is required and a compelling reason
for the proposed action. Compelling reasons for award of a contract or
consent to a subcontract with a debarred or suspended contractor
include the following:
(i) Only the cited contractor can provide the property or services.
(ii) The urgency of the requirement dictates that HHS conduct
business with the cited contractor.
(2) If the HCA decides to approve the requested action, the HCA
shall request the concurrence of the debarring or suspending official
and, if given, shall inform the Contracting Officer in writing of the
decision within the required time period.
309.406 Debarment.
309.406-3 Procedures.
(a) Investigation and referral. When an apparent cause for
debarment becomes known, the initiating official shall prepare a report
containing the information required by 309.470-2, along with a written
recommendation, and forward it through appropriate acquisition
channels, including the HCA, to the Associate DAS for Acquisition in
accordance with 309.470-1. The debarring official shall initiate an
investigation.
(b) Decision making process. The debarring official shall review
the results of the investigation, if any, and make a written
determination whether or not debarment procedures shall commence. The
ASFR/OGAPA/DA shall promptly send a copy of the determination through
appropriate acquisition channels to the initiating official and the
Contracting Officer. If the debarring official determines that
debarment procedures shall commence, the debarring official shall
consult with OGC-GLD and then notify the contractor in accordance with
FAR 9.406-3(c). If the proposed action is not based on a conviction or
judgment and the contractor's submission in response to the notice
raises a genuine dispute over facts material to the proposed debarment,
the debarring official shall arrange for fact-finding hearings and take
the necessary action specified in FAR 9.406-3(b)(2). The debarring
official shall also ensure that written findings of facts are prepared
and shall base the debarment decisions on the facts as found, after
considering information and argument submitted by the contractor and
any other information in the administrative record. The OGC-GLD shall
represent HHS at any fact-finding hearing and may present witnesses for
HHS and question any witnesses presented by the contractor.
309.407 Suspension.
309.407-3 Procedures.
(a) Investigation and referral. When an apparent cause for
suspension becomes known, the initiating official shall prepare a
report containing the information required by 309.470-2 along with a
written recommendation and forward it through appropriate acquisition
channels, including the HCA, to the suspending official in accordance
with 309.470-1. The suspending official shall initiate an
investigation.
(b) Decision making process. The suspending official shall review
the results of the investigation, if any, and make a written
determination whether or not suspension shall occur. ASFR/OGAPA/DA
shall send a copy of the determination through appropriate acquisition
channels to the initiating official and the Contracting Officer. If the
suspending official determines that suspension is necessary, the
suspending official shall consult with OGC-GLD and then notify the
contractor in accordance with FAR 9.407-3(c). If the action is not
based on an indictment, and, subject to the provisions of FAR 9.407-
3(b) (2), the contractor's submission in response to the notice raises
a genuine dispute over facts material to the suspension, the suspending
official shall, after imposing the suspension, arrange for fact-finding
hearings and take the necessary actions specified in FAR 9.407-3(b)(2).
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 forward a report, incorporating the
information required by 309.470-2, through appropriate acquisition
channels, including the HCA, to the Associate DAS for Acquisition
whenever a contractor--
(a) Has committed, or is suspected of having committed, any of the
acts described in FAR 9.406-2 or FAR 9.407-2; or
(b) Is suspected of attempting to evade the prohibitions of
debarment or suspension imposed under this subject, or any other
comparable regulation, by changes of address, multiple addresses,
formation of new companies, or by other devices.
309.470-2 Contents of reports.
The Contracting Officer shall coordinate each report prepared under
309.470-1 with OGC-GLD and include the following information, when
available:
(a) Contractor name and address.
(b) Name of the principal officers, partners, owners, or managers.
(c) All known affiliates, subsidiaries, or parent firms, and the
nature of the affiliation.
(d) Description of the contract or contracts concerned, including
the contract number and office identifying numbers or symbols; the
amount of each contract; the amount paid to the contractor and the
amount still due; and the percentage of work completed and to be
completed.
(e) The status of vouchers.
(f) Whether contract funds have been assigned pursuant to the
Assignment of Claims Act, as amended, (31 U.S.C. 3727, 41 U.S.C. 15),
and, if so assigned, the name and address of the assignee and a copy of
the assignment.
(g) Whether any other contracts are outstanding with the contractor
or any affiliates, and, if so, the amount of the contracts, whether
these funds have been assigned pursuant to the Assignment of Claims
Act, as amended, (31 U.S.C. 3727, 41 U.S.C. 15), and the amounts paid
or due on the contracts.
(h) A complete summary of all available pertinent evidence.
(i) A recommendation as to the continuation of current contracts.
(j) An estimate of damages, if any, sustained by the Government as
a result of the contractor's action, including an explanation of the
method used in making the estimate.
(k) The comments and recommendations of the Contracting Officer and
statements indicating whether the contractor should be suspended or
debarred, whether any limitations are necessary, and the period of any
proposed debarment.
(l) As an enclosure, a copy of the contract(s) or pertinent
excerpts therefrom, appropriate exhibits, testimony or statements of
witnesses, copies of assignments, and other relevant documentation or a
written summary of any information for which documentation is not
available.
[[Page 62423]]
PART 310--MARKET RESEARCH
Sec.
310.001 Policy.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
310.001 Policy.
(a) OPDIVs are encouraged to conduct market research, to the
maximum extent practicable, consistent with the urgency, complexity,
and dollar value of a proposed acquisition, as well as their past
experience with the same or similar requirements.
(3) (i) An OPDIV may issue an advance notice, entitled ``Sources
Sought'' in FedBizOpps in accordance with the requirements of FAR Part
5, whenever a sufficient number of sources has not been identified to
obtain adequate competition for a non-R & D project. The primary
purpose of a Sources Sought notice is to identify all potential
sources, regardless of organizational type and size classification, and
determine their capabilities to fulfill a potential Government
requirement. The notice is not intended to solicit technical,
scientific, or business information for project planning purposes
regarding existing or potential solutions. In the latter instance, an
RFI may be used--see FAR 15.201(e) and 315.201(e).
(ii) When using a Sources Sought notice, an OPDIV shall not request
that potential sources provide more than the minimum information
necessary--see FAR 10.001(b), to determine whether they have the
apparent capability to perform a requirement and, therefore, whether
they should be included in any future competition. The notice and the
information received shall not be used to determine how well
respondents can perform a requirement, which can only be evaluated in
response to a solicitation. Accordingly, the notice shall not be used
to--
(A) Obtain capability statements that are evaluated and determined
acceptable or unacceptable;
(B) Require cost/price proposals or detailed technical solutions;
(C) Identify a prospective sole source; or
(D) Exclude small business concerns.
(iii) While not the primary intent of a Sources Sought notice, in
addition to seeking information regarding all potential qualified
sources, the notice may request that respondents provide information
regarding their organizational size classification. For example, the
notice may ask respondents to identify whether they are small
businesses; HUBZone small businesses; service-disabled, veteran-owned
small businesses; 8(a) small businesses; veteran-owned small
businesses; woman-owned small businesses; or small disadvantaged
businesses in order to determine the appropriate acquisition method,
including whether a set-aside is possible. However, such a notice shall
not be used solely to determine the size classification of respondents
for a proposed non-R & D acquisition. In such instances, a ``Small
Business Sources Sought'' notice may be used--see 319.202-2, in lieu of
the procedures in this section.
(iv) OPDIVs shall follow the standard HHS instructions for
completing a Sources Sought notice. The Contracting Officer shall post
the notice in FedBizOpps by selecting and completing a Sources Sought
notice. The template for the notice is available on the ASFR/OGAPA/DA
Internet Web site. Additional information may be included in the notice
in accordance with OPDIV procedures. The Contracting Officer shall
document, in the form of a memorandum to the file, the results of the
review by technical personnel of information submitted in response to
the notice, including whether each respondent appears to be capable of
performing the requirement. The Contracting Officer shall attach a copy
of the analysis provided by the technical personnel to the memorandum.
(v) In instances where a sufficient number of sources has not been
identified to compete for an R & D project, OPDIVs may use the
procedures specified in 305.205, including the issuance of an ``R & D
Sources Sought'' notice, as appropriate, in lieu of the procedures in
this section.
PART 311--DESCRIBING AGENCY NEEDS
Subpart 311.70--Section 508 Accessibility Standards
Sec.
311.7000 Defining electronic information technology requirements.
311.7001 Section 508 accessibility standards for HHS Web site
content and communication materials.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 311.70--Section 508 Accessibility Standards
311.7000 Defining electronic information technology requirements.
HHS staff that define agency needs for EIT products and services,
including EIT deliverables such as electronic documents and reports,
and perform market research to meet those needs, shall document EIT
requirements, identify the applicable Section 508 accessibility
standards, and document the market research. OPDIVs may develop
procedures for these activities, based on the level of agency
investment and risk, and shall ensure any procedures developed are in
conformance with FAR Part 10. Procedures for defining EIT requirements
may, but are not required to, include the use of the Buy Accessible
Wizard (http://www.buyaccessible.gov), managed by GSA, or other Federal
agency tools.
311.7001 Section 508 accessibility standards for HHS Web site content
and communications materials.
(a) Section 508 of the Rehabilitation Act of 1973 [29 U.S.C.
794(d)], as amended by the Workforce Investment Act of 1998, (Section
508) specifies the accessibility standards that apply to all new
solicitations and new or existing contracts or orders, regardless of
dollar amount, for communications products and services that require a
contractor or consultant to produce content in any format that is
specifically intended for publication on, or delivery via, an HHS-owned
or -funded Web site.
(b) Accordingly, before forwarding a request to the contracting/
ordering office for the acquisition of communications products and
services, including content in any format, such as reports, documents,
charts, posters, presentations (such as Microsoft PowerPoint), or video
material that is specifically intended for publication on, or delivery
via, an HHS-owned or -funded Web site, the Project Officer shall
consult with the OPDIV/STAFF Division (DIV) Section 508 Official or
Coordinator, as necessary, to determine the applicability of Section
508, identify applicable Section 508 accessibility standards, and
resolve any related issues.
(c) Based on those discussions, the Project Officer shall provide a
statement in the AP (or other acquisition request document)--see
307.7101, as to the applicability of Section 508. If Section 508
applies to an acquisition, the Project Officer shall include the
following ``HHS Section 508 Accessibility Standards Notice'' language
in a separate, clearly designated section of the SOW/PWS, and any
additional information applicable to the acquisition's Section 508
accessibility standards [e.g., the list of applicable accessibility
standards of the Architectural and Transportation Barriers Compliance
Board (Access Board) Final Rule (36 CFR Part 1194)]. If an AP does not
address these issues, and it appears an acquisition involves
[[Page 62424]]
Section 508, or if the discussion of Section 508 applicability to the
acquisition is inadequate or incomplete, the Contracting Officer shall
request that the Project Officer modify the AP accordingly.
HHS Section 508 Accessibility Standards Notice (September 2009)
This contract is subject to Section 508 of the Rehabilitation Act
(the Act) of 1973 (29 U.S.C. 794d), as amended by the Workforce
Investment Act of 1998, and the Architectural and Transportation
Barriers Compliance Board (Access Board) Electronic and Information
Accessibility Provisions (36 CFR Part 1194). Section 508 of the Act
requires that, unless an exception applies, all communications products
and services that require a contractor or consultant to produce content
in any format that is specifically intended for publication on, or
delivery via, a Federally owned or Federally funded Web site permit the
following:
(1) Federal employees with disabilities to have access to and use
information and data that is comparable to the access and use of
information and data by Federal employees who are not individuals with
disabilities.
(2) Members of the public with disabilities seeking information or
services from a Federal agency to have access to and use of information
and data that is comparable to the access and use of information and
data by members of the public who are not individuals with
disabilities.
Note: Information about Section 508 of the Act is available at
http://www.section508.gov/. The complete text of Section 508 can be
accessed at http://www.access-board.gov/sec508/provisions.htm.
Accordingly, regardless of format, all Web content or
communications materials specifically produced for publication on, or
delivery via, HHS Web sites, including text, audio, or video, under
this contract shall conform to applicable Section 508 accessibility
standards. Remediation of any materials that do not comply with the
applicable accessibility standards of 36 CFR Part 1194 as set forth
herein shall be the responsibility of the Contractor.
The following Section 508 accessibility standards apply to the
content or communications material identified in this SOW or PWS:
Note: The Project Officer shall list the applicable
accessibility standards of the Access Board Final Rule (36 CFR Part
1194) (e.g., ``36 CFR 1194.21(a)-(j).'' Most Web-based text and
communication must meet the accessibility standards in 36 CFR
1194.22, ``Web-based intranet and Internet information and
applications.'' Additionally, 36 CFR 1194.41, ``Information,
documentation and support,'' and 36 CFR 1194.24 ``Video and
multimedia products'' apply to all written, graphical, or broadcast
video materials or products produced for HHS, including training. 36
CFR 1194.41(c) specifies that support services for products shall
accommodate the communication needs of end-users with disabilities.
PART 312--ACQUISITION OF COMMERCIAL ITEMS
Subpart 312.1--Acquisition of Commercial Items--General
Sec.
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. 486(c).
Subpart 312.1--Acquisition of Commercial Items--General
312.101 Policy.
(a) It is HHS policy to leverage its buying power, reduce
acquisition administrative costs, and develop long-term, mutually
beneficial partnerships with best-in-class providers of products and
services. Accordingly, HHS has implemented a Strategic Sourcing Program
through which it awards BPAs or other contract vehicles to achieve
savings for commercial items and services across HHS and make the
acquisition process more efficient. OPDIVs shall use HHS' strategic
sourcing vehicles to the maximum extent possible--see the HHS strategic
sourcing portion of the ASFR/OGAPA/DA intranet site for further
information.
Subpart 312.2--Special Requirements for the Acquisition of
Commercial Items
312.202(d) Market research and description of agency need.
Whenever an OPDIV/STAFFDIV requires EIT products and services
subject to Section 508 of the Rehabilitation Act of 1973, as amended,
commercially available products and services shall be acquired to the
maximum extent possible while ensuring Section 508 compliance.
Consistent with paragraph 4.3.1 of the HHS Section 508 policy--see
Section 508 policy on the HHS Office on Disability Web site, if
products and services are commercially available that meet some but not
all of the applicable Section 508 accessibility standards, and no
commercially available products or services meet all of the applicable
Section 508 accessibility standards, an OPDIV/STAFFDIV shall acquire
the products and services that best meet the applicable Section 508
accessibility standards. Commercial nonavailability exception
determinations for EIT products and services that do not meet some or
all of the applicable Section 508 accessibility standards shall be
processed in accordance with 339.203.
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
PART 313--SIMPLIFIED ACQUISITION PROCEDURES
Sec.
313.003 Policy.
Subpart 313.1--Procedures.
313.106-2 Evaluation of quotations or offers.
Subpart 313.3--Simplified Acquisition Methods
313.301 Government-wide commercial purchase card.
313.303 Blanket purchase agreements.
313.303-5 Purchases under blanket purchase agreements.
Subpart 313.5--Test Program for Certain Commercial Items
313.501 Special documentation requirements.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
313.003 Policy.
EIT products and services, including EIT deliverables such as
electronic documents and reports, acquired pursuant to FAR Part 13
shall comply with Section 508 of the Rehabilitation Act of 1973, as
amended. Consistent with paragraph 4.3.1 of the HHS Section 508
policy--see Section 508 policy on HHS Office on Disability Web site, if
products and services, including commercially available items, meet
some but not all of the applicable Section 508 accessibility standards,
and no commercially available products or services meet all of the
applicable Section 508 accessibility standards, an OPDIV/STAFFDIV shall
acquire the products and services that best meet the applicable Section
508 accessibility standards. Commercial nonavailability exception
determinations for EIT products and services that do not meet some or
all of the applicable Section 508 accessibility standards shall be
processed in accordance with 339.203.
Subpart 313.1--Procedures
313.106-2 Evaluation of quotations or offers.
(b)(5) Technical Evaluation. When conducting a technical evaluation
of quotations or proposals received under FAR Part 13, the provisions
of 315.305(a)(3) apply.
[[Page 62425]]
Subpart 313.3--Simplified Acquisition Methods
313.301 Government-wide commercial purchase card.
(b) HHS' procedures for the use and control of the Government-wide
commercial purchase card may be found in the HHS Purchase Card Program
Guide, available on the ASFR/OGAPA/DA Web site.
(1) ASFR/OGAPA/DA has overall responsibility for monitoring the
OPDIVs' implementation of the HHS purchase card program to foster
compliance with FAR 13.301; OMB Circular A-123, Appendix B, ``Improving
the Management of Government Charge Card Programs;'' GSA's SmartPay
Program guidance; and HHS Purchase Card program standards.
(2) The OPDIVs, through their designated Agency/Organization
Program Coordinators, are responsible for establishing the necessary
local procedures and appropriate training requirements to ensure
effective implementation of the HHS purchase card program.
(3) OPDIVs shall refer to 313.003 and the HHS Purchase Card Program
Guide for information regarding acquiring EIT products and services
subject to Section 508 of the Rehabilitation Act of 1973, as amended.
313.303 Blanket purchase agreements.
313.303-5 Purchases under blanket purchase agreements.
(e)(5) HHS personnel that sign delivery documents, invoices, etc.,
verifying the receipt of an item or service shall forward such
documents to the fiscal office or other paying office that the OPDIV
designates. The fiscal or other paying officer shall use the signed
document, invoice, etc., as the basis for payment. Alternatively,
OPDIVs may use electronic methods to document, and transmit to the
paying office, the receipt, inspection, and acceptance of items or
services for payment purposes, provided such methods are authorized in
local fiscal procedures. Contracting offices shall establish procedures
to ensure that funds are available prior to placement of orders.
Subpart 313.5--Test Program for Certain Commercial Items
313.501 Special documentation requirements.
(a) (1)
(i) The justification requirements of 306.303-1(b) and 306.303-
1(b)(1) through (b)(4) apply to proposed noncompetitive acquisitions
placed under FAR Subpart 13.5.
(ii) The HHS standard format for JOFOCs cited in 306.303-1(b)(1)
shall be used to support noncompetitive acquisitions in excess of the
simplified acquisition threshold placed under FAR Subpart 13.5.
(iii) The certification, concurrence, and approval requirements
cited in 306.304 for JOFOCs apply to applicable noncompetitive
acquisitions placed under FAR Subpart 13.5.
(2)
(i) The Contracting Officer shall exercise this approval authority
unless a higher approval level is required by OPDIV procedures.
(ii) The CAs are listed in 306.501. This approval authority is not
delegable.
(iii) The CA shall exercise this approval authority, except where
the individual designated as the competition advocate does not meet the
requirements of FAR 6.304(a)(3)(ii). This approval authority is not
delegable.
(iv) The HHS SPE is the Associate DAS for Acquisition.
PART 314--SEALED BIDDING
Subpart 314.1--Use of Sealed Bidding
Sec.
314.103 Policy.
Subpart 314.2--Solicitation of Bids
314.202 General rules for solicitation of bids.
314.202-7 Facsimile bids.
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. 486(c).
Subpart 314.1--Use of Sealed Bidding
314.103 Policy.
EIT products and services, including EIT deliverables such as
electronic documents and reports, acquired using sealed-bid procedures
shall comply with Section 508 of the Rehabilitation Act of 1973, as
amended. Consistent with paragraph 4.3.1 of the HHS Section 508
policy--see Section 508 policy on HHS Office of Disability Web site, if
products and services, including commercially available items, meet
some but not all of the applicable Section 508 accessibility standards,
and no commercially available products or services meet all of the
applicable Section 508 accessibility standards, an OPDIV/STAFFDIV shall
acquire the products and services that best meet the applicable Section
508 accessibility standards. Commercial nonavailability exception
determinations for EIT products and services that do not meet some or
all of the applicable Section 508 accessibility standards shall be
processed in accordance with 339.203.
Subpart 314.2--Solicitation of Bids
314.202 General rules for solicitation of bids.
314.202-7 Facsimile bids.
(c) If the HCA (non-delegable) determines that the contracting
activity will allow use of facsimile bids and proposals, the HCA shall
prescribe internal procedures, in accordance with the FAR 14.202-7, to
ensure uniform processing and control.
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 HCA or CCO (non-delegable) shall make the agency head
determinations specified in FAR 14.404-1.
314.407 Mistakes in bids.
314.407-3 Other mistakes disclosed before award.
(e) The CCO (non-delegable) has the authority to make
determinations under paragraphs (a), (b), (c), and (d) of FAR 14.407-3.
(f) OGC-GLD shall concur in each proposed determination.
(i) The CCO shall submit directly to OGC-GLD cases in which the
evidence is not clear and convincing or is otherwise doubtful.
314.407-4 Mistakes after award.
(c) The HCA or the CCO (non-delegable), in consultation with OGC-
GLD, has the authority to make administrative determinations in
connection with mistakes in bid alleged after award.
(d) OGC-GLD shall concur in each proposed determination.
PART 315--CONTRACTING BY NEGOTIATION
Subpart 315.2--Solicitation and Receipt of Proposals and Information
Sec.
315.201 Exchanges with industry before receipt of proposals.
315.204-5 Part IV--Representations and instructions.
315.208 Submission, modification, revision, and withdrawal of
proposals.
315.209 Solicitation provisions and contract clauses.
[[Page 62426]]
Subpart 315.3--Source Selection.
315.303-70 Policy.
315.304 Evaluation factors and significant subfactors.
315.305 Proposal evaluation.
315.306 Exchanges with offerors after receipt of proposals.
315.307 Proposal revisions.
315.370 Finalization of details with the selected source.
315.371 Contract preparation and award.
315.372 Preparation of negotiation memorandum.
Subpart 315.4--Contract Pricing
315.404 Proposal analysis.
315.404-2 Information to support proposal analysis.
315.404-4 Profit.
Subpart 315.6--Unsolicited Proposals
315.605 Content of unsolicited proposals.
315.606 Agency procedures.
315.606-1 Receipt and initial review.
315.609 Limited use of data.
Subpart 315.70--Acquisition of Electronic Information Technology
315.7000 Section 508 accessibility standards.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 315.2--Solicitation and Receipt of Proposals and
Information
315.201 Exchanges with industry before receipt of proposals.
(e)(1) An OPDIV may issue an advance notice, entitled ``Request for
Information,'' in accordance with the requirements of FAR 15.201(e),
whenever it requires technical, scientific, and/or business information
and input from the marketplace for project planning purposes regarding
the availability of existing or potential solutions. An RFI may be used
for any type of requirement, but is particularly appropriate for
complex projects involving R & D, IT, construction, and other highly
technical requirements. An RFI may also be issued to identify issues
about the Government's requirements and the planned acquisition
strategy. Use of an RFI generally is appropriate under the following
conditions:
(i) It is not clear whether the purpose and performance
requirements of a potential or planned project are feasible,
achievable, and complete.
(ii) It is not certain that a solution, technical approach, or
product needed to accomplish a potential or planned project exists or
can be developed, particularly in the case of a new, highly
specialized/unique Government program mandate.
(iii) It is necessary to test the marketplace to determine if there
are questions or concerns regarding the use of a new or innovative
acquisition strategy or instrument previously untried to accomplish a
potential or planned project.
(iv) It is necessary to determine the general effort or time
(estimate or rough order of magnitude) that may be required to
accomplish a potential or planned project.
Note: This type of information may be requested, only if it is
necessary, broad in scope, and required for planning purposes.
Detailed estimates must not be requested.
(v) It is necessary to ensure that unduly restrictive technical or
business/acquisition requirements are not made part of any resultant
solicitation so that maximum competition is generated.
(2) When using an RFI, an OPDIV shall not request that potential
sources provide more than the minimum information necessary--see FAR
10.001(b), to obtain the input required. The notice and the information
received shall not be used to determine how well respondents can
perform a requirement, which can only be evaluated in response to a
solicitation. Accordingly, the notice shall not be used to--
(i) Obtain capability statements that are evaluated and determined
acceptable or unacceptable;
(ii) Require cost/price proposals or detailed technical solutions;
(iii) Identify a prospective sole source; or
(iv) Exclude small business concerns.
(3) While not the primary intent of an RFI, an OPDIV may
additionally request that respondents provide information regarding
their organizational size classification and capabilities when the
OPDIV is uncertain whether any organization, acting individually or in
partnership with others, can satisfy the requirement. For example, the
notice may ask respondents to identify whether they are small
businesses; HUBZone small businesses; service-disabled, veteran-owned
small businesses; 8(a) small businesses; veteran-owned small
businesses; woman-owned small businesses; or a small disadvantaged
businesses. However, an RFI shall not be used solely to determine the
availability of qualified sources for a proposed project or to
determine their size classification. In such instances, as applicable,
an R & D Sources Sought notice, Sources Sought notice, or Small
Business Sources Sought notice may be used--see HHSAR 305.205, 310.001,
and 319.202-2.
(4) OPDIVs shall follow the standard HHS instructions for
completing an RFI. The template for an RFI is available on the ASFR/
OGAPA/DA Internet Web site. The Contracting Officer shall post the
notice in FedBizOpps by selecting and completing a Special Notice,
accessible on the FedBizOpps ``Notices'' page at: http://www.fedbizopps.gov. RFIs must be published, at a minimum, in
FedBizOpps--see FAR 10.002(b)(2)(iii) and 15.201(d). Additional
information may be included in an RFI in accordance with OPDIV
procedures. The Contracting Officer shall document, in the form of a
memorandum to the file, the results of the review by technical
personnel of information submitted in response to the notice, including
whether each respondent appears to be capable of performing the
requirement. The Contracting Officer shall attach a copy of the
analysis provided by the technical personnel to the memorandum.
315.204-5 Part IV--Representations and instructions.
(c) Section M, Evaluation factors for award.
(1) General.
(i) The Project Officer shall develop technical evaluation factors
and submit them to the Contracting Officer as part of the acquisition
plan or other acquisition request documentation for inclusion in a
solicitation. The Project Officer shall indicate the relative
importance or weight of the evaluation factors based on the
requirements of an individual acquisition. Since the evaluation factors
will serve as the standard for proposal evaluation, they require
careful selection.
(ii) Only a formal amendment to a solicitation can change the
evaluation factors. Evaluation of proposals shall include only those
factors set forth in a solicitation.
(2) Review of evaluation factors.
(i) The Contracting Officer shall review evaluation factors to
ensure they are consistent with the SOW/PWS. This review is not
intended to dictate technical requirements to the program office or
Project Officer, but rather to ensure that the evaluation factors are
clear, concise, and fair, so that all potential offerors are fully
aware of the bases for proposal evaluation and are given an equal
opportunity to compete.
(ii) The Project Officer and the Contracting Officer shall review
the evaluation factors to ascertain the following:
(A) The factors address the key programmatic concerns which the
offerors must be aware of in preparing proposals.
(B) The factors are specifically applicable to the current
acquisition and are not restatements of factors from previous
acquisitions which are not relevant.
[[Page 62427]]
(C) The factors represent only the significant areas of importance,
rather than a multitude of factors. (Note: All factors tend to lose
importance, if too many are included; and using too many factors may
prove as detrimental as using too few.)
(3) Examples of topics that form a basis for evaluation factors.
Typical examples of topics that form a basis for the development of
evaluation factors are listed in the following paragraphs. These
examples may assist in the development of actual evaluation factors for
a specific acquisition, as appropriate.
(i) Understanding of the SOW/PWS.
(ii) Method of accomplishing the objectives and intent of the SOW/
PWS.
(iii) Soundness of the scientific or technical approach for
executing the requirements of the SOW/PWS, including, when applicable,
preliminary layouts, sketches, diagrams, other graphic representations,
calculations, curves, and other data necessary for presentation,
substantiation, justification, or understanding of the approach.
(iv) Special technical factors, such as experience or pertinent
novel ideas in the specific branch of science or technology involved.
(v) Feasibility or practicality of successfully accomplishing the
requirements (including a statement and discussion of anticipated major
difficulties and problem areas, and recommended approaches for their
resolution).
(vi) Availability of required special research, test, and other
equipment or facilities.
(vii) Managerial capability (ability to achieve delivery or
performance requirements as demonstrated by the proposed use of
management and other personnel resources, and to successfully manage
the project, including subcontractor and/or consultant efforts, if
applicable, as evidenced by the management plan and demonstrated by
previous experience).
(viii) Availability, qualifications, experience, education, and
competence of professional, technical, and other personnel, including
proposed subcontractors and consultants (as evidenced by resumes,
endorsements, and explanations of previous efforts).
(ix) Soundness of the proposed staff time or labor hours, propriety
of personnel classifications (professional, technical, others),
necessity for type and quantity of material and facilities proposed,
validity of proposed subcontracting, and necessity of proposed travel.
(x) Quality of offeror's past performance on recent projects of
similar size and scope.
(xi) Extent of proposed participation of small disadvantaged
business concerns in performance of the contract.
315.208 Submission, modification, revision, and withdrawal of
proposals.
(b) In addition to the provision in FAR 52.215-1, Instructions to
Offerors--Competitive Acquisition, if an HCA determines that certain
classes of biomedical or behavioral R & D acquisitions are subject to
conditions other than those specified in FAR 52.215-1(c)(3), the HCA
may authorize for use in competitive solicitations for R & D, valued at
more than the simplified acquisition threshold, the use of the
provision in 352.215-70, Late Proposals and Revisions. This is an
authorized FAR deviation.
(2) When the provision at 352.215-70 is included in the
solicitation and a proposal is received after the exact time specified
for receipt, the Contracting Officer, with the assistance of cost and
technical personnel, shall make a written determination as to whether
the proposal meets the requirements of the provision at 352.215-70 and,
therefore, can be considered.
315.209 Solicitation provisions and contract clauses.
(a) The Contracting Officer shall insert paragraph (e) in 352.215-1
in place of paragraph (e) in the provision in FAR 52.215-1,
Instructions to Offerors--Competitive Acquisition, in solicitations for
competitive, negotiated acquisitions valued at more than the simplified
acquisition threshold. This is an authorized FAR deviation.
Subpart 315.3--Source Selection
315.303-70 Policy.
(a) If an OPDIV is required by statute to use peer review for
technical review of specified contracts, the requirements of those
statutes, any implementing regulatory requirements, the Federal
Advisory Committee Act, and as applicable, any approved HHSAR
deviation(s) from this subpart take precedence over the otherwise
applicable requirements of this subpart.
(1) The statutes that require such review and implementing
regulations are as follows: NIH--42 U.S.C. 289a and 42 CFR Part 52h;
SAMHSA--42 U.S.C. 290aa-3, and AHRQ--42 U.S.C. 299c-1.
315.304 Evaluation factors and significant subfactors.
(a) A solicitation for EIT products and services, including EIT
deliverables such as electronic documents and reports, shall include a
separate technical evaluation factor (which may be in the form of a
technical evaluation criterion or a mandatory qualification criterion,
as appropriate) developed by the Contracting Officer, Project Officer,
and the OPDIV Section 508 Coordinator to determine vendor compliance
with applicable Section 508 accessibility standards. The technical
evaluation panel's assessment of Section 508 accessibility standards
conformance shall be based on the Section 508 Product Assessment
Template--see Section 508 policy on Office of Disability Web site for
the template, and on any other pertinent information that offerors
provide in response to a solicitation. The HHS Office on Disability is
responsible for providing technical assistance in Section 508
evaluation factor development.
(b) Before conducting negotiations or making an award, the
Contracting Officer shall provide a summary of the technical evaluation
panel's assessment of vendor responses to the solicitation's Section
508 evaluation factor for review by the Section 508 Official or
designee. The Section 508 Official or designee shall indicate approval/
disapproval of the evaluation panel's assessment. The Contracting
Officer shall coordinate the resolution of any issues raised by the
Section 508 Official or designee with the chair of the technical
evaluation panel or Project Officer, as appropriate. The acquisition
process shall not proceed unless and until the Section 508 Official or
designee has approved the technical evaluation panel's assessment. The
Contracting Officer shall include the assessment in the official
contract file. See 339.203 regarding processing exception determination
requests.
315.305 Proposal evaluation.
(a)(1) Cost or price evaluation.
(i) The Contracting Officer shall evaluate proposals in accordance
with the FAR 15.404. The extent of cost or price analysis in each case
depends on the availability of competition, contract type, the proposed
amount, and technical complexity.
(A) For competitive firm-fixed-price and fixed price with economic
price adjustment contracts, price analysis should be sufficient to
determine price fairness and reasonableness.
(B) When competition is not adequate for the above contract types,
and for cost-reimbursement and time and materials contracts, cost
analysis may be required. In such cases, the Contracting Officer shall
request the Project Officer's assistance in analyzing the following
cost elements, if applicable, to
[[Page 62428]]
determine if the proposed amounts are necessary and reasonable for
efficient contract performance:
(1) The number and mix of proposed labor hours relative to the
technical requirements.
(2) Types, numbers and hours/days of proposed consultants.
(3) The kinds and quantities of material, equipment, supplies, and
services.
(4) Kinds and quantities of IT.
(5) Logic of proposed subcontracting.
(6) Travel proposed, including number of trips, locations, purpose,
and travelers.
(7) Other direct costs not specified above.
(ii) The Project Officer shall provide written comments, including
the rationale for any exceptions to the cost elements. The Contracting
Officer shall consider the Project Officer's comments for negotiations
or to support award without discussions. The Contracting Officer shall
also request assistance of a cost/price analyst, when necessary.
(2) Past performance evaluation. When evaluating past performance,
the Contracting Officer shall check references to obtain information
concerning the performance history of offerors in compliance with FAR
42.1502. The Contracting Officer may require the assistance of the
Project Officer as well as other Government technical personnel in
performing this function.
(3) Technical evaluation.
(i) Technical evaluation plan.
(A) The Contracting Officer shall require a technical evaluation
plan if the proposed acquisition either requires preparation of an AP--
see 307.71 or is otherwise sufficiently complex.
(B) The technical evaluation plan shall include, at a minimum, the
following elements:
(1) A list of recommended technical evaluation panel members, their
organizations, a list of their major consulting clients (if
applicable), their qualifications, and curricula vitae (if applicable).
(2) A statement that the technical evaluation panel will include
non-Federal technical proposal evaluators, if applicable, and a
determination that sufficient Federal technical proposal evaluators are
unavailable--see FAR 37.204. A determination to use non-Federal
proposal evaluators shall be signed at a level no lower than the HCA. A
determination is not required, however, if non-Federal evaluators will
be used in accordance with 315.303-70(a).
(3) A statement that there is no apparent or actual conflict of
interest regarding any recommended panel member.
(4) A copy of each rating sheet, approved by the Contracting
Officer, to ensure consistency with the evaluation criteria.
(5) A brief description of the general evaluation approach.
(6) A description of the methodology for evaluating key elements in
the technical evaluation plan, including any solicitation evaluation
factor involving the acquisition of EIT products and services subject
to Section 508.
(C) Except as provided in OPDIV procedures, a program office
official at least one level above the Project Officer shall approve the
technical evaluation plan.
(D) The Project Officer shall provide the technical evaluation plan
to the Contracting Officer for review and approval before the
solicitation is issued. The Contracting Officer shall ensure that the
evaluation criteria reflect the significant factors and subfactors
relating to the evaluation when conducting the review of the plan.
(ii) Technical evaluation panel.
(A) General.
(1) A technical evaluation panel is required for all acquisitions
subject to this subpart that require preparation of an AP. The
Contracting Officer may require a technical evaluation panel for
acquisitions that do not require preparation of an AP, based on the
complexity of the acquisition and the role that the technical
evaluation will have in the award decision.
(2) The technical evaluation process requires careful consideration
regarding the size, composition, expertise, and function of the
technical evaluation panel. The panel's efforts will influence the
success or failure of the acquisition.
(3) At least 50 percent of the HHS personnel on a technical
evaluation panel shall have successfully completed HHS University's
``Basic Contracting Officer's Technical Representative'' course or an
equivalent course before assuming their designated role. This training
requirement applies to evaluators performing the initial technical
evaluation and any subsequent technical evaluations. However, this
training requirement does not apply to peer review panel members.
(B) Role of the Project Officer.
(1) The Project Officer provides guidance, information, and
assistance to the Contracting Officer on all technical aspects of a
proposed acquisition--see 302.101. The Project Officer may be a voting
member of the technical evaluation panel and may serve as the
chairperson of the panel unless prohibited by law or contracting
activity procedures.
(2) The Project Officer shall recommend panel members who have
sufficient expertise in the technical aspects of the acquisition to be
able to evaluate strengths and weaknesses in proposals.
(3) The Project Officer shall ensure that persons possessing
expertise and experience in addressing issues relative to sex, race,
national origin, and disability are included as panel members for
acquisitions to which such issues apply.
(4) The Project Officer shall submit a list of recommended panel
members to a program office official at least one level higher than
him/herself. This official shall review the list and select the
chairperson.
(5) The Project Officer shall arrange for adequate and secure
working space for the panel.
(C) Role of the Contracting Officer.
(1) The term ``Contracting Officer,'' as used in this subpart, may
be the Contracting Officer or a Contract Specialist possessing an
appropriate FAC-C certification.
(2) The Contracting Officer shall not serve as a member of the
technical evaluation panel, but shall--
(i) Address the initial meeting of the technical evaluation panel;
(ii) Provide assistance to the evaluators as required; and
(iii) Ensure that the scores adequately reflect the written
technical report comments.
(D) Conflict of interest.
(1) If a panel member has an actual or apparent conflict of
interest related to a proposal under evaluation, the individual cannot
serve on the panel. If a suitable replacement is not available, the
panel shall perform the review without a replacement.
(2) For the purposes of this subpart, conflicts of interest are
defined in the Standards of Ethical Conduct for Employees of the
Executive Branch (5 CFR part 2635), Supplemental Standards of Ethical
Conduct for Employees of the Department of Health and Human Services (5
CFR part 5501), and the Procurement Integrity Act. For outside
evaluators serving on the technical evaluation panel, see paragraph
(a)(3)(ii)(F) of this section.
(E) Continuity of evaluation process.
(1) The technical evaluation panel shall evaluate all original
proposals; make recommendations to the chairperson regarding strengths
and weaknesses of proposals; if required by the Contracting Officer,
assist the Contracting Officer during communications and discussions;
and
[[Page 62429]]
review supplemental, revised or final proposal revisions. To the extent
possible, the same evaluators shall be available throughout the entire
evaluation and selection process to ensure continuity and consistency
in the treatment of proposals. The following are examples of
circumstances when it would not be necessary for the technical
evaluation panel to evaluate revised proposals submitted during the
acquisition:
(i) The answers to questions do not have a substantial impact on
the proposal.
(ii) Final proposal revisions are not materially different from the
original proposals.
(iii) Revisions to the proposals are relatively minor and do not
affect the rankings of the offerors.
(2) The Contracting Officer, with the written concurrence of the
technical evaluation panel chairperson, may decide not to have the
panel evaluate the revised proposals. The Contracting Officer shall
fully document such a decision in the contract file.
(3) When the Contracting Officer considers technical evaluation
panel meetings necessary, the attendance of evaluators is mandatory.
When the chairperson determines that an evaluator's failure to attend
the meetings is prejudicial to the evaluation, the chairperson shall
remove or replace the individual after discussing the situation with
the Contracting Officer and obtaining the Contracting Officer's
concurrence and the approval of the official responsible for appointing
the panel members.
(4) When continuity of the evaluation process is not possible, and
new evaluators are selected or the size of the evaluation panel is
reduced, each panel member shall review all proposals at the current
stage of the acquisition--i.e., initial proposal, final proposal
revisions, etc. Also, the Contracting Officer shall provide guidance
concerning what steps to take if an unusually large number of proposals
is received, including how to determine what constitutes an unusually
large number of proposals.
(F) Use of outside evaluators.
(1) Except when peer review is required by statute as provided in
315.303-70(a), decisions to disclose proposals to evaluators outside of
the Government shall be made by the official responsible for appointing
panel members in accordance with OPDIV procedures. The avoidance of
organization conflict of interest and competitive relationships must be
taken into consideration when making the decision to use outside
evaluators.
(2) When a solicited proposal will be disclosed outside the
Government for evaluation purposes, the following or similar conditions
shall be part of the written agreement with the evaluator(s) prior to
disclosure:
Conditions for Evaluating Proposals
The evaluator agrees to use the data (trade secrets, business
data, and technical data) contained in the proposal for evaluation
purposes only. The foregoing requirement does not apply to data
obtained from another source without restriction. Any notice or
legend placed on the proposal by either HHS or the submitter of the
proposal shall be applied to any reproduction or abstract provided
to the evaluator or made by the evaluator. Upon completion of the
evaluation, the evaluator shall return to the Government the
furnished copy of the proposal or abstract, and all copies thereof,
to the HHS office which initially furnished the proposal for
evaluation. Unless authorized by the HHS initiating office, the
evaluator shall not contact the submitter of the proposal concerning
any aspects of its contents. The evaluator's employees and
subcontractors shall abide by these conditions.
(iii) Receipt of proposals.
(A) After the closing date for the receipt of proposals set in the
solicitation, the Contracting Officer shall forward the technical
proposals, by memorandum, to the Project Officer or chairperson for
evaluation. The Contracting Officer shall retain the business proposals
for evaluation.
(B) The transmittal memorandum shall include at least the following
elements:
(1) A list of the names of the organizations submitting proposals.
(2) A reference to the need to preserve the integrity of the source
selection process.
(3) A statement that only the Contracting Officer is authorized to
conduct discussions.
(4) A requirement for a technical evaluation report in accordance
with paragraph (a)(3)(vi) of this section.
(5) The establishment of a date for receipt of the technical
evaluation report.
(iv) Convening the technical evaluation panel.
(A) Normally, the technical evaluation panel convenes to evaluate
proposals. However, there may be situations when the panel chairperson
determines that it is not feasible for the panel to convene. Whenever
the panel does not convene, the panel chairperson shall closely monitor
the technical review to produce acceptable results.
(B) When a panel convenes, the chairperson shall control the
technical proposals provided by the Contracting Officer for use during
the evaluation process. The chairperson normally distributes the
technical proposals prior to the initial panel meeting and establishes
procedures for securing the proposals whenever they are not being
evaluated to ensure their confidentiality. After an evaluation is
completed, the chairperson shall return all proposals to the
Contracting Officer.
(C) The Contracting Officer shall address the initial meeting of
the panel and state the basic rules for conducting the evaluation. The
Contracting Officer shall provide written guidance to the panel, if the
Contracting Officer cannot attend the initial panel meeting. The
guidance shall include the following elements:
(1) An explanation of the evaluation process and the role of
evaluators throughout the process.
(2) The need for evaluators to read and understand the
solicitation, especially the SOW/PWS and evaluation criteria, prior to
reading the proposals.
(3) The need for evaluators to restrict the review to only the SOW/
PWS, the evaluation criteria, and the contents of the technical
proposals.
(4) The need for each evaluator to review all of the proposals.
(5) The need for evaluators to identify ambiguities,
inconsistencies, errors, and deficiencies.
(6) The need for the evaluators to provide complete written
documentation of the individual strengths and weaknesses for each
proposal.
(7) An instruction specifying that, until an award is made, they
may not disclose information concerning the acquisition to any person
not directly involved in the evaluation process.
(8) An explanation of conflicts of interest.
(v) Rating and ranking of proposals. The evaluators shall
individually read each proposal, describe tentative strengths and
weaknesses, and independently assign preliminary scores in relation to
each evaluation factor set forth in the solicitation. The evaluators
may then discuss in detail the individual strengths and weakness
described by each evaluator and, if possible, arrive at a common
understanding of the major strengths and weaknesses and the potential
for correcting each offeror's weakness(es). Each evaluator shall assign
a final score to each proposal, and the technical evaluation panel
shall collectively rank the proposals. Normally, ranking is the result
of adding the numerical scores assigned to the evaluation factors and
determining the average for each offeror. The evaluators shall then
identify
[[Page 62430]]
whether each proposal is acceptable or unacceptable. The technical
evaluation panel shall not employ predetermined cutoff scores.
(vi) Technical evaluation report. The chairperson shall prepare a
technical evaluation report and provide it to the Contracting Officer,
who shall maintain it as a permanent record in the contract file. The
report shall reflect the ranking of the proposals and identify each
proposal as acceptable or unacceptable. The report shall also include a
narrative evaluation specifying the strengths and weaknesses of each
proposal, and any reservations, qualifications, or areas to be
addressed that might bear upon the selection of sources for negotiation
and award. The report shall include concrete technical reasons
supporting any determination of unacceptability of a proposal and, for
acceptable proposals, include specific points and questions for
discussions or negotiations. The technical evaluation report shall also
include a copy of each signed rating sheet, unless the Contracting
Officer determines, in accordance with FAR 15.305(a)(3)(ii), and
315.305(a)(3)(vi), that the technical evaluation report includes
appropriate and sufficiently detailed supporting narrative (with
specific references to particular portions of offerors' proposals) to
(1) fully and reasonably explain the basis for the technical evaluation
panel's assessments of each proposal, including an evaluation rating of
``acceptable'' or ``unacceptable; and (2) support any recommendation to
include or not include a proposal in the competitive range. However,
when peer review of proposals is required as provided in 315.303-70(a),
OPDIVs shall follow applicable peer review guidelines and practices
regarding the submission, maintenance, and disposal of reviewer rating
sheets.
315.306 Exchanges with offerors after receipt of proposals.
(d) Exchanges with offerors after establishment of the competitive
range. The Project Officer or technical evaluation panel shall develop
technical questions as part of the technical evaluation report. The
questions shall disclose the ambiguities, weaknesses, and deficiencies
of offeror(s)' proposals. The Contracting Officer, with the assistance
of the Project Officer or panel as required, shall prepare the
management, past performance, and cost or price questions. The method
of requesting offerors in the competitive range to submit additional
information may vary depending on the complexity of the questions, the
extent of additional information necessary, the time needed to analyze
the responses, and the time frame for making the award. However, to the
extent practicable, all questions and answers shall be in writing. The
Contracting Officer shall give each offeror in the competitive range an
equitable period of time for preparation of responses to questions to
the extent practicable.
315.307 Proposal revisions.
(b) Final proposal revisions are subject to--
(1) A final evaluation of price or cost and other salient factors
by the Contracting Officer and Project Officer, with assistance from a
cost/price analyst, as appropriate; and
(2) An evaluation of technical factors by the technical evaluation
panel, as necessary.
The technical evaluation panel may rescore and re-rank technical
proposals in the competitive range and prepare a technical evaluation
report. To the extent practicable, the same evaluators who reviewed the
original proposals shall perform the evaluation. The Contracting
Officer and Project Officer shall conduct a final evaluation of past
performance. The technical evaluation panel may be involved in the
final evaluation of past performance, if the panel is comprised solely
of Government personnel.
315.370 Finalization of details with the selected source.
(a) After selection of the successful proposal, the Contracting
Officer may finalize details with the selected offeror, if necessary.
However, the Contracting Officer shall not introduce any factor that
could have an effect on the selection process after the common cutoff
date for receipt of final proposal revisions, nor shall the
finalization process in any way prejudice the competitive interest or
rights of the unsuccessful offerors. The Contracting Officer shall
restrict finalization of details with the selected offeror to
definitizing the final agreement on terms and conditions, assuming none
of these factors were involved in the selection process.
(b) Whenever a change occurs in the requirements, the Contracting
Officer shall reopen the competition, and provide all offerors
submitting final proposal revisions an opportunity to resubmit
proposals based on the revised requirements. If there is a question as
to whether a change is material and would require the initiation of a
new competition, the Contracting Officer shall obtain the advice of
technical personnel and OGC-GLD before proceeding. Significant changes
in the offeror's cost proposal may also necessitate a reopening of a
competition, if the changes alter the factors involved in the original
selection process.
(c) Upon finalization of details, the Contracting Officer shall
obtain a confirmation letter from the successful offeror which includes
any revisions to its technical proposal, the agreed upon price or cost,
and, as applicable, a certificate of current cost or pricing data.
315.371 Contract preparation and award.
(a) After completing any activities that may be necessary to
finalize details with the selected offeror, the Contracting Officer
shall--
(1) Prepare the negotiation memorandum in accordance with 315.372;
(2) Prepare the contract containing all agreed to terms and
conditions and clauses required by law or regulation;
(3) Include in the contract file the pertinent documents referenced
in FAR 4.803; and
(4) Obtain the appropriate approval of the proposed contract
award(s) in accordance with subpart 304.71 and contracting activity
procedures.
(b) After receiving the required approvals, the Contracting Officer
shall--
(1) Transmit the contract to the prospective contractor for
signature; and
(2) Inform the prospective contractor that the contract is not
effective until the Contracting Officer transmits the fully executed
contract to the contractor.
(c) The Contracting Officer shall not sign or issue the contract
until the finance office certifies that the funds are available for
obligation.
315.372 Preparation of negotiation memorandum.
The Contracting Officer shall prepare a negotiation memorandum, or
summary of negotiations, to document all actions leading to award of a
contract and support the source selection decision discussed in FAR
15.308. The memorandum also satisfies the requirement for preparation
of a ``cost/price negotiation memorandum'' required by FAR 15.406-3.
The memorandum shall be in sufficient detail to explain and support the
rationale, judgments, and authorities upon which all actions were
predicated. The memorandum shall document the negotiation process and
reflect the negotiator's actions and judgments in concluding a
satisfactory agreement for the Government. The memorandum shall address
each item listed below. If an item is not applicable, the
[[Page 62431]]
memorandum shall so state. The Contracting Officer may reference
information already contained in the contract file rather than
reiterate it.
(a) Description of articles and services and period of performance.
Provide a description of the articles or services, quantity, unit
price, total contract amount, and period of contract performance.
(b) Acquisition planning. Summarize or reference any acquisition
planning activities that have taken place.
(c) Synopsis of acquisition. Provide a statement as to whether the
acquisition has or has not been publicized in accordance with FAR
Subpart 5.2. Include a brief statement referencing the specific basis
for exemption under the FAR, if applicable.
(d) Contract type. Provide sufficient detail to support the type of
contractual instrument recommended for the acquisition. If the contract
is a cost-sharing type, explain the essential cost-sharing features.
(e) Extent of competition. Discuss the extent to which full and
open competition was solicited and obtained. Include the date of
solicitation, sources solicited, and solicitation results. If a late
proposal was received, discuss whether or not the late proposal was
evaluated and the rationale for the decision.
(f) Technical evaluation. Summarize or reference the results
presented in the technical evaluation report.
(g) Business evaluation. Summarize or reference results presented
in the business report.
(h) Past performance. Summarize or reference results of both the
past performance evaluation and reference checks.
(i) Competitive range (if applicable). Describe how the competitive
range was determined, and indicate the offerors that were included in
and excluded from the competitive range.
(j) Cost breakdown and analysis. Include a complete cost breakdown
together with the Contracting Officer's analysis of the estimated cost
by individual cost elements. The analysis shall discuss the items
specified in FAR 15.406-3 and other cost factors, such as--
(1) A comparison of cost factors proposed for the current
requirement with actual factors used in earlier contracts, using the
same cost centers of the same supplier or cost centers of other sources
having recent contracts for the same or similar item;
(2) Any pertinent Government-conducted audit of the proposed
contractor's record or any pertinent cost advisory report;
(3) Any pertinent technical evaluation inputs as to necessity,
allocability and reasonableness of labor, material and other direct
expenses;
(4) Any other pertinent information to fully support the basis for
the cost analysis;
(5) If the contract is an incentive type, a discussion of all
elements of profit and fee structure; and
(6) A justification of the reasonableness of the contractor's
proposed profit or fixed fee considering the requirements of FAR
15.404-4 and 315.404-4.
(k) Cost realism. Describe the cost realism analysis performed on
proposals.
(l) Government-furnished property and facilities. With respect to
Government-furnished facilities, equipment, tooling, or other property,
include the following:
(1) If the Government will not provide property, a statement to
that effect.
(2) If the Government will provide property, a full description of
it, its estimated dollar value, the basis of price comparison with
competitors, and the basis of rental charge, if rental is involved.
(3) If a decision to furnish property has not been made, a detailed
explanation.
(m) Negotiations. Include a statement as to the date and place of
negotiations, and identify members of both the Government and
contractor negotiating teams by area of responsibility. Include
negotiation details relative to the SOW/PWS, terms and conditions, and
special provisions. The results of cost or price negotiations shall
include the information required by FAR 31.109 and 15.406-3. In
addition, if the potential contractor provided cost or pricing data,
specify the extent to which the Contracting Officer relied upon the
factual cost or pricing data submitted and used it in negotiating the
cost or price.
(n) Other considerations. Include coverage of areas such as the
following:
(1) Financial data with respect to a contractor's capacity and
stability.
(2) Determination of contractor responsibility.
(3) Details as to why the method of payment, such as progress
payments, advance payments, etc., is necessary and cite any required D
& F's.
(4) Information with respect to obtaining a certificate of current
cost or pricing data.
(5) Other required special approvals.
(6) If the contract represents an extension of previous work, the
status of funds and performance under the prior contract(s). Also, the
Project Officer shall provide sufficient information for the
Contracting Officer to determine that the Government has obtained
enough actual or potential value from the work previously performed to
warrant continuation with the same contractor.
(7) A statement that the Contracting Officer has explained the
equal opportunity provisions of the proposed contract to the
contractor, and the contractor is aware of its responsibilities. Also,
state whether or not an Equal Employment Opportunity (EEO) clearance is
required.
(8) If the contract is for services, a statement, in accordance
with FAR 37.103, that the services are nonpersonal in nature.
(o) Terms and conditions. Identify the general and special clauses
and conditions that are contained in the contract, such as option
arrangements, multi-year contracting, anticipatory costs, deviations
from standard clauses, etc. The Contracting Officer shall state the
rationale for inclusion of any special terms and conditions and, where
applicable, identify the document which granted approval for their use.
(p) Recommendation. Briefly state the basis (or bases) for
recommending award.
(q) Signature. The Contracting Officer and the individual who
prepared the negotiation memorandum must sign the document.
Subpart 315.4--Contract Pricing
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 by phone from the cognizant audit agency, the
Contracting Officer may request less-than-complete field pricing
support (specifying in the request the information needed) or may waive
in writing the requirement for audit and field pricing support by
documenting the file to indicate what information will be used instead
of the audit report and the field pricing report.
(3) When initiating audit and field pricing support, the
Contracting Officer shall do so by sending a request to the cognizant
Administrative Contracting Officer, with an information copy to the
cognizant audit office. When field pricing support is not available,
the Contracting Officer shall initiate an audit by sending, in
accordance with agency procedures, two (2) copies of the request to the
OIG Office of Audit Services, Regional Inspector General. In
[[Page 62432]]
both cases, the Contracting Officer shall, in the request--
(i) Prescribe the extent of the support needed;
(ii) State the specific areas for which input is required;
(iii) Include the information necessary to perform the review, such
as the offeror's proposal and the applicable portions of the
solicitation, particularly those describing requirements and delivery
schedules;
(iv) Provide the complete address of the location of the offeror's
financial records that support the proposal;
(v) Identify the office having audit responsibility, if other than
the HHS Regional Audit Office; and
(vi) Specify a due date for receipt of a verbal report and the
written audit report. If the time available is not adequate to permit
satisfactory coverage of the proposal, the auditor shall so advise the
Contracting Officer and indicate the additional time needed. The
Contracting Officer shall submit one copy of the audit request letter
provided to the Office of Audit Services, Regional Inspector General
and a complete copy of the contract price proposal to OIG Office of
Audit Services. Whenever the Office of Audit Services has conducted an
audit review, the Contracting Officer shall forward two (2) copies of
the memorandum of negotiation to OIG Office of Audit Services.
315.404-4 Profit.
(b) Policy.
(1) The structured approach for determining profit provides a
technique for establishing a profit objective for negotiation. A profit
objective is that part of the estimated contract price objective or
value which, in the judgment of the Contracting Officer, constitutes an
appropriate amount of profit for the acquisition being considered. This
technique allows for consideration of the profit factors described in
paragraph (d) of this section. The Contracting Officer's analysis of
these factors shall be based on available information, such as
proposals, audit data, assessment reports, and pre-award surveys. The
structured approach provides a basis for documenting the profit
objective. The Contracting Officer shall explain any significant
departure from this objective. The amount of documentation depends on
the dollar value and complexity of the proposed acquisition. The profit
objective is a part of the overall negotiation objective and is
directly related to the cost objective and any proposed sharing
arrangement. The profit objective shall exclude factors considered
inapplicable to the acquisition.
(ii) The Contracting Officer shall negotiate the profit objective
at the same time as the other cost items and as a whole rather than as
individual profit factors. The profit factor breakdown shall be part of
the documentation. The Contracting Officer shall use the profit
analysis factors in FAR 15.404-4(d) in lieu of the structured approach
in the following circumstances:
(A) Contracts not expected to exceed $100,000.
(B) A & E contracts.
(C) Management contracts for operations or maintenance of
Government facilities.
(D) Construction contracts.
(E) Contracts primarily requiring delivery of material supplies by
subcontractors
(F) Termination settlements.
(G) Cost-plus-award-fee contracts.
However, the Contracting Officer may perform a structured profit
analysis as an aid in arriving at an appropriate fee arrangement. The
Contracting Officer may make other exceptions in the negotiation of
contracts having unusual pricing situations, but shall justify in
writing those situations where the structured approach is determined to
be unsuitable.
(c) Contracting Officer responsibilities. The Contracting Officer
shall develop the profit objective, which shall realistically reflect
the total overall effort of the contractor. The Contracting Officer
shall not begin to develop the profit objective until he or she has
completed a thorough review of the proposed contract work; conducted a
review of all available knowledge regarding the contractor pursuant to
FAR subpart 9.1, including audit data, pre-award survey reports and
financial statements, as appropriate; and completed an analysis of the
contractor's cost estimate and comparison with the Government's
estimate or projection of cost.
(d) Profit-analysis factors.
(1) Common factors. The Contracting Officer shall consider the
following factors in all cases in which profit is negotiated and shall
use the weight ranges listed after each factor in all instances where
the structured approach is used.
------------------------------------------------------------------------
Profit factors Weight ranges (%)
------------------------------------------------------------------------
Contractor Effort:
Material acquisition.................. 1 to 5.
Direct labor............................ 4 to 15.
Overhead................................ 4 to 9.
General & Administrative (G & A)........ 4 to 8.
Other costs............................. 1 to 5.
Other Factors:
Cost risk............................... 0 to 7.
Investment.............................. -2 to +2.
Performance............................. -1 to +1.
Socioeconomic programs.................. -.5 to +.5.
Special situations
------------------------------------------------------------------------
(i) The Contracting Officer shall measure ``Contractor Effort'' by
assigning a profit percentage within the designated weight range to
each element of contract cost. The categories listed are for reference
purposes only, but are broad and basic enough to provide guidance for
other elements of cost. The Contracting Officer shall not include
facilities capital cost of money. ``Contractor Effort'' shall include a
computed total dollar profit.
(ii) The Contracting Officer shall use the total dollar profit for
the ``Contractor Effort'' to calculate specific profit dollars for
``Other Factors''--cost risk, investment, performance, socioeconomic
programs, and special situations. The Contracting Officer shall
multiply the total dollar profit for the ``Contractor Effort'' by the
weight assigned to each of the elements in the ``Other Factors''
category. Facilities capital cost of money is not included. Form HHS
674, Structured Approach Profit/Fee Objective, shall be used.
(iii) In making a judgment of the value of each factor, the
Contracting Officer shall consider the definition, description, and
purpose of the factors together with considerations for evaluating
them.
(iv) The structured approach was designed for arriving at profit
objectives for other than nonprofit organizations. However, the
Contracting Officer shall use the modified structured approach in
paragraph (d)(1)(iv)(B) of this section to establish fee objectives for
nonprofit organizations.
(A) For purposes of this section, nonprofit organizations are
defined as those business entities organized and operated exclusively
for charitable, scientific, or educational purposes, no part of the net
earnings of which inure to the benefit of any private shareholder or
individual, and which are exempt from Federal income taxation under
Section 501(c)(3) of the Internal Revenue Code.
(B) For contracts with nonprofit organizations where fee is
involved, the Contracting Officer shall subtract up to three percentage
points from the total ``profit'' objective percentage. In determining
the amount of this adjustment, the Contracting Officer shall consider
the following factors:
[[Page 62433]]
(1) Tax position benefits.
(2) Granting of financing through advance payments.
(3) Other pertinent factors which may work to either the advantage
or disadvantage of the contractor in its position as a nonprofit
organization.
(2) Contractor effort. Contractor effort is a measure of how much
the contractor is expected to contribute to the overall effort
necessary to meet the contract performance requirement in an efficient
manner. This factor, which is apart from the contractor's
responsibility for contract performance, takes into account what
resources are necessary and what steps the contractor must take to
accomplish a conversion of ideas and material into the final service or
product called for in the contract. This is a recognition that within a
given performance output, or within a given sales dollar figure,
necessary efforts on the part of individual contractors can vary widely
in both value and quantity, and that the profit objective shall reflect
the extent and nature of the contractor's contribution to total
performance. A major consideration, particularly in connection with
experimental or R & D work, is the difficulty or complexity of the work
to be performed, and the unusual demands of the contract, such as
whether the project involves a new approach unrelated to existing
technology or equipment or only refinements to these items. The
evaluation of this factor requires an analysis of the cost content of
the proposed contract as follows:
(i) Material acquisition (subcontracted items, purchased parts, and
other material). Analysis of these cost items shall include an
evaluation of the managerial and technical effort necessary to obtain
the required subcontracted items, purchased parts, material or
services. The Contracting Officer shall determine whether the
contractor will obtain the items or services by routine order from
readily available sources or by detailed subcontracts for which the
prime contractor must develop complex specifications. The Contracting
Officer shall also consider the managerial and technical efforts
necessary for the prime contractor to select subcontractors and to
perform subcontract administration functions, which may be substantial.
Normally, the lowest unadjusted weight for direct material is two
percent. A weighting of less than two percent may be appropriate only
in unusual circumstances when there is a minimal contribution by the
contractor.
(ii) Direct labor (professional, service, manufacturing and other
labor). Analysis of the various labor categories of the cost content of
the contract shall include evaluation of the comparative quality and
quantity of professional and semiprofessional talents, manufacturing
and service skills, and experience to be employed. In evaluating
professional and semiprofessional labor for the purpose of assigning
profit dollars, the Contracting Officer shall consider the amount of
notable scientific talent or unusual or scarce talent needed in
contrast to nonprofessional effort, including the contribution this
talent will provide toward the achievement of contract objectives.
Since nonprofessional labor is relatively plentiful and the contractor
may easily obtain it, it is less critical to the successful performance
of contract objectives. Therefore, the Contracting Officer cannot
weight it nearly as high as professional or semiprofessional labor. The
Contracting Officer shall evaluate service contract labor in a like
manner by assigning higher weights to engineering or professional type
skills required for contract performance and considering the variety of
manufacturing and other categories of labor skills required and the
contractor's personnel resources for meeting those requirements. For
purposes of evaluation, the Contracting Officer may separately
categorize, as appropriate, certain types of labor (e.g., quality
control, receiving and inspection), that do not fall within the
definition of professional, service or manufacturing labor; but shall
apply the same evaluation considerations as outlined in this paragraph.
(iii) Overhead and G & A expense.
(A) Analysis of these overhead items of cost shall include the
evaluation of the makeup of these expenses and how much they contribute
to contract performance. To the extent practicable, analysis shall
include a determination of the amount of labor within these overhead
pools and how this labor would be treated if it were considered direct
labor under the contract. The Contracting Officer shall give the
allocable labor elements the same profit considerations that they would
receive if they were treated as direct labor. The other elements of
these overhead pools require analysis to determine whether they are
routine expenses, such as utilities and maintenance, and hence given
lesser profit consideration, or whether they are significant
contributing elements. The composite of the individual determinations
in relation to the elements of the overhead pools shall be the profit
consideration given the pools as a whole. The procedure for assigning
relative values to these overhead expenses differs from the method used
in assigning values of the direct labor. The upper and lower limits
assignable to the direct labor are absolute. In the case of overhead
expenses, individual expenses may be assigned values outside the range
as long as the composite ratio is within the range.
(B) It is not necessary that the contractor's accounting system
break down overhead expenses within the classifications of research
overhead, other overhead pools, and general administrative expenses,
unless dictated otherwise by Cost Accounting Standards (CAS). The
contractor whose accounting system reflects only one overhead rate on
all direct labor need not change its system, if CAS exempt, to
correspond with these classifications. The Contracting Officer, in an
evaluation of such a contractor's overhead rate, may break out the
applicable sections of the composite rate which could be classified as
research overhead, other overhead pools, and general and administrative
expenses, and follow the appropriate evaluation technique.
(C) The Contracting Officer shall consider management problems that
may surface in varying degrees and the management expertise exercised
to solve them as an element of profit. For example, a contract for a
new R & D program or an item which is on the cutting edge may cause
more problems and require more managerial time and abilities of a
higher order than a follow-on contract. If new contracts create more
problems and require a higher profit weight, the Contracting Officer
shall adjust follow-ons downward because many of the problems should
have been solved. In any event, the evaluation shall consider the
underlying managerial effort involved on a case-by-case basis.
(D) It may not be necessary for the Contracting Officer to make a
separate profit evaluation of overhead expenses, in connection with
each acquisition action for substantially the same project with the
same contractor. Where the Contracting Officer has made an analysis of
the profit weight to be assigned to the overhead pool, the weight
assigned may apply to future acquisitions with the same contractor
unless there is a change in the cost composition of the overhead pool
or contract circumstances, or unless the factors discussed in paragraph
(d)(2)(iii)(C) of this section are involved.
(iv) Other costs. Analysis of this factor shall include all other
direct costs associated with contractor performance (e.g., travel and
relocation, direct support, and consultants). Analysis of these items
of cost shall include the
[[Page 62434]]
significance of the cost of contract performance, nature of the cost,
and how much they contribute to contract performance. Normally, travel
costs require minimal administrative effort by the contractor and,
therefore, usually receive a weight no greater than one percent. Also,
the contractor may designate individuals as ``consultants,'' but in
reality the contractor may obtain these individuals to supplement its
workforce in the performance of routine duties required by contract.
These costs would normally receive a minimum weight. However, there may
be instances when contract performance may require the contractor to
obtain the services of consultants having expertise in fields such as
medicine or human services. In these instances, the contractor may
expend greater managerial and technical effort to obtain these services
and, consequently, the costs shall receive a much greater weight.
(3) Other factors:
(i) Contract cost risk. The contract type employed basically
determines the degree of cost risk assumed by the contractor. For
example, where a portion of the risk has been shifted to the Government
through cost-reimbursement provisions, unusual contingency provisions,
or other risk-reducing measures, the amount of profit shall be less
than where the contractor assumes all the risk.
(A) In developing the prenegotiation profit objective, the
Contracting Officer shall consider the type of contract anticipated and
the contractor risk associated therewith, when selecting the position
in the weight range for profit that is appropriate for the risk the
contractor will bear. This factor is one of the most important in
arriving at the prenegotiation profit objective. Evaluation of this
risk requires a determination of: The degree of cost responsibility
assumed by the contractor; the reliability of the cost estimates in
relation to the tasks assumed by the contractor; and the complexity of
the tasks assumed by the contractor. This factor is specifically
limited to the risk of contract costs. Risks associated with a
contractor's reputation, a contractor's potential loss of a commercial
market, or a contractor's loss of potential profits in other fields,
are not within the scope of this factor.
(B) The first and basic determination of the degree of cost
responsibility assumed by the contractor is related to the sharing of
total risk of contract cost by the Government and the contractor
through the selection of contract type. The extremes are a cost-plus-
fixed-fee contract requiring the contractor to use its best efforts to
perform a task and a firm fixed-price contract for a service or a
complex item. A cost-plus-fixed-fee contract would reflect a minimum
assumption of cost responsibility, whereas a firm-fixed-price contract
would reflect a complete assumption of cost responsibility. The
determination of risk by contract type usually falls into the following
percentage ranges:
------------------------------------------------------------------------
Percent
------------------------------------------------------------------------
Cost-reimbursement type contracts.......................... 0-3
Fixed-price type contracts................................. 2-7
------------------------------------------------------------------------
(C) The second determination is that of the reliability of the cost
estimates. Sound price negotiation requires well-defined contract
objectives and reliable cost estimates. Prior experience assists the
contractor in preparing reliable cost estimates on new acquisitions for
similar efforts. An excessive cost estimate reduces the likelihood that
the cost of performance will exceed the contract price, thereby
reducing the contractor's assumption of contract cost risk.
(D) The third determination is that of the difficulty of the
contractor's task. The contractor's task can be difficult or easy,
regardless of the type of contract.
(E) Contractors are likely to assume greater cost risk only if
Contracting Officers objectively analyze the risk associated with
proposed contracts and are willing to compensate contractors for it.
Generally, a cost-plus-fixed fee contract will not justify a reward for
risk in excess of 0.5 percent, nor will a firm fixed-price contract
justify a reward of less than the minimum in the structured approach.
The reward for risk, by contract type, will usually fall into the
following percentage ranges:
(1) Type of contract and percentage ranges for profit objectives
based on structured approach for R & D and manufacturing contracts:
------------------------------------------------------------------------
Percent
------------------------------------------------------------------------
Cost-plus-fixed-fee....................... 0 to 0.5.
Cost-plus-incentive-fee: With cost 1 to 2.
incentive only.
With multiple incentives.................. 1.5 to 3.
Fixed-price-incentive: With cost incentive 2 to 4.
only.
With multiple incentives.................. 3 to 5.
Prospective price redetermination......... 3 to 5.
Firm-fixed-price.......................... 5 to 7.
------------------------------------------------------------------------
(2) Type of contract and percentage ranges for profit objectives
based on the structured approach for service contracts:
------------------------------------------------------------------------
Percent
------------------------------------------------------------------------
Cost-plus-fixed-fee....................... 0 to 0.5.
Cost-plus-incentive-fee................... 1 to 2.
Fixed-price incentive..................... 2 to 3.
Firm-fixed-price.......................... 3 to 4.
------------------------------------------------------------------------
(F) These ranges may not be appropriate for all acquisitions. For
instance, a fixed-price incentive contract with a low ceiling price and
high incentive share may be tantamount to a firm fixed-price contract.
In this situation, the Contracting Officer may determine that a basis
exists for high confidence in the reasonableness of the estimate and
that little opportunity exists for cost reduction without extraordinary
efforts. On the other hand, a contract with a high ceiling and low
incentive formula can be considered to contain cost-plus-incentive-fee
contract features. In this situation, the Contracting Officer may
determine that the Government is retaining much of the contract cost
responsibility and that the risk the contractor assumes is minimal.
Similarly, if a cost-plus-incentive-fee contract includes an unlimited
downward (negative) fee adjustment on cost control, it could be
comparable to a fixed-price-incentive contract. In such a pricing
environment, the Contracting Officer may determine that the Government
has transferred a greater amount of cost responsibility to the
contractor than is typical under a normal cost-plus-incentive-fee
contract.
(G) The contractor's subcontracting program may have a significant
impact on the contractor's acceptance of risk. It could cause risk to
increase or decrease in terms of both cost and performance. This
consideration shall be a part of the Contracting Officer's overall
evaluation in selecting a factor to apply to cost risk. The Contracting
Officer may determine, for instance, that the prime contractor has
effectively transferred real cost risk to a subcontractor and the
contract cost risk evaluation may, as a result, be below the range
which would otherwise apply for the contract type being proposed.
However, without any substantial transfer of cost risk from the prime
contractor to a subcontractor, the Contracting Officer shall not lower
the contract cost risk evaluation merely because a substantial portion
of the contract costs represents subcontracts.
(H) In making a contract cost risk evaluation for an acquisition
that involves definitization of a letter contract, unpriced change
orders, and unpriced orders under basic ordering agreements, the
Contracting Officer shall consider the effect on total contract cost
risk of partial performance before definitization. Under some
[[Page 62435]]
circumstances, the total amount of cost risk may have been effectively
reduced. Under other circumstances it may be apparent that the
contractor's cost risk remains substantially unchanged. To be
equitable, the Contracting Officer shall make the determination of
profit weight for all recognized costs, both incurred and yet to be
expended, considering all attendant circumstances--not merely the
portion of costs incurred or percentage of work completed prior to
definitization.
(I) The Contracting Officer shall consider time-and-materials and
labor-hour contracts to be cost-plus-fixed-fee contracts for the
purpose of establishing profit weights in the evaluation of the
contractor's assumption of contract cost risk, unless otherwise exempt
from use of the structured approach under paragraph (b)(1)(ii) of this
section.
(ii) Investment. HHS encourages its contractors to perform their
contracts with the minimum of financial, facilities, or other
assistance from the Government. As such, it is the purpose of this
factor to encourage the contractor to acquire and use its own resources
to the maximum extent possible. The evaluation of this factor shall
include an analysis of the following:
(A) Facilities (including equipment). Evaluating how this factor
contributes to the profit objective requires knowledge of the level of
facilities utilization needed for contract performance, the source and
financing of the required facilities, and the overall cost-
effectiveness of the facilities offered. The Contracting Officer shall
provide contractors with additional profit, if they furnish their own
facilities and such contractor-furnished facilities contribute
significantly to lower total contract costs. On the other hand,
contractors that rely on the Government to provide or finance needed
facilities shall receive a corresponding reduction in profit. Between
these extremes, the Contracting Officer shall evaluate cases on their
merits and make positive or negative adjustments in profit, as
appropriate. When applicable, the contractor's computation of
facilities capital cost of money under CAS 414 can help the Contracting
Officer identify the level of facilities investment the contractor will
employ in contract performance.
(B) Payments. In analyzing this factor, the Contracting Officer
shall consider the frequency of payments by the Government to the
contractor. The key to this weighting is to give proper consideration
to the impact the contract will have on the contractor's cash flow.
Generally, negative consideration applies to advance payments and
payments more frequent than monthly, with the Contracting Officer
making a maximum reduction as the contractor's working capital
approaches zero. The Contracting Officer shall generally give positive
consideration for payments less frequent than monthly and for a capital
turn-over rate on the contract less than the contractor's or the
industry's normal capital turn-over rate.
(iii) Performance (cost control and other past accomplishments).
The Contracting Officer shall evaluate the contractor's past
performance in areas such as: quality of services or products, meeting
performance schedules, efficiency in cost control (including need for
and reasonableness of costs incurred), accuracy and reliability of
previous cost estimates, degree of cooperation (both business and
technical), compliance with previous contract requirements, and
management of subcontract programs. Where a contractor has consistently
achieved excellent results in these areas in comparison with other
contractors in similar circumstances, this performance merits a
proportionately greater opportunity for profit. Conversely, a poor
record in this regard warrants less profit.
(iv) Federal socioeconomic programs. This factor, which may apply
to special circumstances or particular acquisitions, relates to the
extent of a contractor's successful participation in Government
sponsored programs involving: Small businesses; HUBZone small
businesses; service-disabled, veteran-owned small businesses; 8(a)
small businesses; women-owned small businesses; small disadvantaged
businesses; sheltered workshops for the disabled; mentor-
prot[eacute]g[eacute]; energy conservation, etc. The Contracting
Officer shall give positive consideration for the contractor's policies
and practices that support Federal socioeconomic programs and
contribute to successful results. Conversely, the Contracting Officer
shall view failure or unwillingness on the part of the contractor to
support Federal socioeconomic programs as evidence of poor performance
for the purpose of establishing a profit objective.
(v) Special situations.
(A) Inventive and developmental contributions. The Contracting
Officer shall consider the extent and nature of contractor-initiated
and contractor-financed independent development in formulating the
profit objective, provided that the Contracting Officer has made a
determination that the effort will benefit the contract. Examples of
profit weighting factors include contribution of the independent
development to health and human service-related missions; the
initiative demonstrated by the contractor in pursuing the independent
development; the extent of the contractor's cost risk; and whether the
independent development cost was recovered directly or indirectly from
Government sources.
(B) Unusual pricing agreements. Occasionally, unusual contract
pricing arrangements are made with the contractor wherein it agrees to
cost ceilings (e.g., a ceiling on overhead rates for conditions other
than those discussed at FAR 42.707). In these circumstances, the
Contracting Officer shall give the contractor favorable consideration
in developing a profit objective.
(C) Negative factors. Special situations need not be limited to
those which only increase profit levels. A negative consideration may
be appropriate when the contractor is expected to obtain spin-off-
benefits as a direct result of the contract (e.g., products or services
with commercial application).
(4) Facilities capital cost of money. When facilities capital cost
of money (cost of capital committed to facilities) is included as an
item of cost in the contractor's proposal, the Contracting Officer
shall reduce the profit objective in an amount equal to the amount of
facilities capital cost of money allowed in accordance with the
Facilities Capital Cost-of-Money cost principle. If the contractor does
not propose this cost, the Contracting Officer shall insert a provision
in the contract that makes facilities capital cost of money an
unallowable cost.
Subpart 315.6--Unsolicited Proposals
315.605 Content of unsolicited proposals.
(d) Certification by offeror. To ensure against contacts between
HHS personnel and prospective offerors that would exceed the limits of
advance guidance set forth in FAR 15.604 and potentially result in an
unfair advantage to an offeror, the Contracting Officer shall: Furnish
the following certification template to any prospective offeror of an
unsolicited proposal; and require that the executed certification be
included in any resultant unsolicited proposal:
Unsolicited Proposal
Certification by Offeror
This is to certify, to the best of my knowledge and belief,
that--
(a) This proposal has not been prepared under Government
supervision;
(b) The methods and approaches stated in the proposal were
developed by this offeror;
[[Page 62436]]
(c) Any contact with Department of Health and Human Services
(HHS) personnel has been within the limits of appropriate advance
guidance set forth in FAR 15.604; and
(d) No prior commitments were received from HHS personnel
regarding acceptance of this proposal.
Date:------------------------------------------------------------------
Organization-----------------------------------------------------------
Name-------------------------------------------------------------------
Title------------------------------------------------------------------
(This certification shall be signed by a responsible management
official of the proposing organization or by a person authorized to
contractually obligate the organization.)
315.606 Agency procedures.
(a) The HCA is responsible for establishing procedures to comply
with FAR 15.606(a).
(b) The HCA or designee shall be the point of contact for
coordinating the receipt and processing of unsolicited proposals.
315.606-1 Receipt and initial review.
(d) OPDIVs shall not refuse consideration of an unsolicited
proposal because an organization initially submitted it as a grant
application. However, OPDIVs shall not award contracts based on
unsolicited proposals that have been rejected for grant awards due to
lack of scientific merit.
315.609 Limited use of data.
An offeror shall use the legend, Use and Disclosure of Data,
prescribed in FAR 15.609(a), to restrict the use of data for evaluation
purposes only. However, data contained within the unsolicited proposal
may need to be disclosed as a result of a request submitted pursuant to
the Freedom of Information Act. Because of this possibility, the
Contracting Officer shall provide the following notice to all
prospective offerors of unsolicited proposals:
``The Government will attempt to comply with the ``Use and
Disclosure of Data'' legend. However, the Government may not be able
to withhold a record (data, document, etc.) or deny access to a
record requested by an individual (the public) when an obligation is
imposed on the Government under the Freedom of Information Act, 5
U.S.C. 552, as amended. The Government determination to withhold or
disclose a record will be based upon the particular circumstances
surrounding the record and on whether the record is exempt from
disclosure under the Freedom of Information Act. Per FAR 15.609(e),
the offeror should identify any records that it considers to be
trade secrets, commercial or financial information, and privileged
or confidential information.''
Subpart 315.70--Acquisition of Electronic Information Technology
315.7000 Section 508 accessibility standards.
EIT products and services, including EIT deliverables such as
electronic documents and reports, acquired using negotiated procedures
shall comply with Section 508 of the Rehabilitation Act of 1973, as
amended. Consistent with paragraph 4.3.1 of the HHS Section 508
policy--see Section 508 policy on HHS Office on Disability Web site, if
products and services, including commercially available items, meet
some but not all of the applicable Section 508 accessibility standards,
and no commercially available products or services meet all of the
applicable Section 508 accessibility standards, an OPDIV/STAFFDIV shall
acquire the products and services that best meet the applicable Section
508 accessibility standards. Commercial nonavailability exception
determinations for EIT products and services that do not meet some or
all of the applicable Section 508 accessibility standards shall be
processed in accordance with 339.203.
PART 316--TYPES OF CONTRACTS
Subpart 316.3--Cost-reimbursement Contracts
Sec.
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.
316.603-70 Procedure for requesting authority to issue a letter
contract.
316.603-71 Approval for modifications to letter contracts.
Subpart 316.7--Agreements
316.770 Unauthorized types of agreements.
316.770-2 Memoranda of understanding.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 316.3--Cost-reimbursement Contracts
316.307 Contract clauses.
(a) If a contract for R & D is with a hospital (profit or
nonprofit), the Contracting Officer shall modify the ``Allowable Cost
and Payment'' clause at FAR 52.216-7 by deleting from paragraph (a) the
words ``Subpart 31.2 of the Federal Acquisition Regulation (FAR)'' and
substituting ``45 CFR Part 74 Appendix E.''
(j) The Contracting Officer shall insert the clause in 352.216-70,
Additional Cost Principles, in solicitations and contracts when a cost-
reimbursement contract is contemplated.
Subpart 316.5--Indefinite-Delivery Contracts
316.505 Ordering.
(b)(5) The HHS task-order and delivery-order ombudsman is the
Director, Strategic Acquisition Service, PSC. The task-order and
delivery-order ombudsmen for each of the HHS contracting activities are
as follows:
AHRQ: Director, Office of Performance Accountability, Resources and
Technology
BARDA: Chief of Mission Support and Acquisition Policy
CDC: Chief Information Officer
CMS: Chief Operating Officer
FDA: Director, Office of Acquisitions and Grants Services
HRSA: Associate Administrator, Office of Operations
IHS: Director, Office of Management Services
NIH: Senior Scientific Advisor for Extramural Research, Office of
Extramural Research (R & D) and Senior Advisor to the Director
(Other than R & D)
PSC: Director, Strategic Acquisition Service
SAMHSA: Executive Officer
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 that no other contract type is suitable.
316.603-70 Procedure for requesting authority to issue a letter
contract.
The Contracting Officer shall include the following information in
a memorandum requesting approval to award a letter contract:
(a) Name and address of proposed contractor.
(b) Location where contract is to be performed.
(c) Contract number, including modification number, if possible.
(d) Brief description of work and services to be performed.
(e) Proposed performance or delivery schedule.
(f) Amount of letter contract.
(g) Estimated total amount of definitized contract.
(h) Type of definitive contract to be executed (fixed price, cost-
reimbursement, etc.).
(i) Statement of the necessity and advantage to the Government of
the use of the proposed letter contract.
(j) Statement of percentage of the estimated cost that the
obligation of funds represents (in rare instances where the obligation
represents 50
[[Page 62437]]
percent or more of the proposed estimated cost of the acquisition, the
Contracting Officer shall include a justification for that obligation
(e.g., the contractor requires a large initial outlay of funds for
major subcontract awards or an extensive purchase of materials to meet
an urgent delivery requirement)). In every case, documentation shall
demonstrate that the amount to be obligated is not in excess of an
amount reasonably required to perform the work.
(k) Period of effectiveness of a proposed letter contract. (If more
than 180 days, the Contracting Officer shall provide a detailed
justification).
(l) A statement of any substantive matters that need to be
resolved.
316.603-71 Approval for modifications to letter contracts.
An official one level above the Contracting Officer shall approve
all letter contract modifications. Contracting activities shall process
requests for authority to issue letter contract modifications in the
same manner as requests for authority to issue letter contracts. A
request shall include the following:
(a) Name and address of the contractor.
(b) Description of work and services.
(c) Date original request was approved and name/title of approving
official.
(d) Letter contract number and date issued.
(e) Detailed justification as to why the letter contract cannot
currently be definitized.
(f) Detailed justification as to why the level of funding must be
increased.
(g) Detailed justification as to why the period of effectiveness
must be increased beyond 180 days, if applicable.
(h) If the funding of the letter contract is to be increased to
more than 50 percent of the estimated cost of the acquisition, the
Contracting Officer shall include the information required by 316.603-
70(j).
Subpart 316.7--Agreements
316.770 Unauthorized types of agreements.
316.770-2 Memorandum of understanding.
Use of a ``memorandum of understanding,'' which purports to modify
mandatory FAR and HHSAR provisions to make them acceptable to a
prospective contractor, is not authorized because it may address
matters contrary to the language of the solicitation or prospective
contract. A memorandum of understanding does not bind the Government
under the contract. The Contracting Officer shall make a change in a
solicitation or contract only by amendment or modification,
respectively. When a change to a prescribed contract clause is
considered necessary, the Contracting Officer shall request a
deviation.
PART 317--SPECIAL CONTRACTING METHODS
Subpart 317.1--Multi-year Contracting
Sec.
317.104 General.
317.105 Policy.
317.105-1 Uses.
317.107 Options.
317.108 Congressional notification.
Subpart 317.2--Options
317.204 Contracts.
317.207 Exercise of options.
Subpart 317.5--Interagency Acquisitions Under the Economy Act
317.503 Determination and findings requirements.
Subpart 317.70--Multi-agency and Intra-agency contracts
317.7000 Scope of subpart.
317.7001 Definitions.
317.7002 Potential multi-agency and intra-agency sources.
317.7003 Documentation for multi-agency contracts.
317.7004 Documentation for intra-agency contracts.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 317.1--Multi-year Contracting
317.104 General.
(b) The Senior Procurement Executive is the agency head for the
purpose of FAR 17.104(b).
317.105 Policy.
317.105-1 Uses.
(a) Each HCA determination to use multi-year contracting, as
defined in FAR 17.103, is limited to individual acquisitions where the
cancellation ceiling obligated in the first year does not exceed 20
percent of the contract value over the full multi-year term or $11.5
million, whichever is less. Cancellation ceiling provisions shall
conform to the requirements of FAR 17.106-1(c). The determination is
not delegable and shall address the issues in FAR 17.105-1(a) and the
following:
(1) The amount of, and basis for, the proposed cancellation
ceiling.
(2) Identification and assignment of a Contracting Officer holding
a FAC-C Level III certification or, alternatively, one familiar with
the application of this contracting method.
(3) Availability of appropriations to fund the obligation of total
contract costs for the first year of performance plus the estimated
amount of the full cancellation ceiling.
(4) Reasonable expectation that, throughout the contemplated
contract performance period, the OPDIV, through its annual budget
request, will seek funding for the contract at the level necessary to
avoid contract cancellation; and
(5) Program requirements are reasonably stable and the associated
technical risks are not excessive--i.e., not of the nature or level to
jeopardize contract completion or result in its cancellation.
Upon SPE request, the HCA shall provide a copy of each
determination (other than those specified in 317.105-1(b) below).
(b) SPE approval is required for--
(1) Any individual determination to use multi-year contracting with
a cancellation ceiling in excess of the limits in 317.105-1(a); and
(2) Any class determination (see FAR Subpart 1.7).
HCA determinations involving a cancellation ceiling in excess of
the limits in 317.105-1(a) shall also include a compelling rationale
why this approach is in the best interests of the Government and a
draft congressional notification letter pursuant to FAR 17.108 and
317.108.
317.107 Options.
When used as part of a multi-year contract, options shall not be
used to extend the performance of non-severable services beyond 5
years. Options may serve as a means to acquire related severable
services and, upon being exercised, shall be funded from the then-
current fiscal year's appropriation.
317.108 Congressional notification.
(a) The SPE is the agency head for the purposes of FAR 17.108(a).
Upon SPE approval of the determination required by 317.105-1(b)(1), the
SPE will finalize and sign the congressional notification letter and
provide it to the appropriate House and Senate committees.
Subpart 317.2--Options
317.204 Contracts.
(e) The total of the basic and option periods shall not exceed 10
years in the case of services and the total of the basic and option
quantities shall not exceed the requirement for 5 years in the case of
supplies. These limitations do not apply to IT and R & D contracts.
However, statutes applicable to various classes of contracts may place
additional restrictions on the length of contracts.
[[Page 62438]]
317.207 Exercise of options.
(h) Before exercising an option for a subsequent performance
period/additional quantity under a multiple-year contract/order--see
339.201-70(c), which involves the acquisition of EIT products and
services, including EIT deliverables such as electronic documents and
reports, subject to Section 508 of the Rehabilitation Act of 1973, as
amended, the Contracting Officer shall ensure that the contractor has
provided to the Contracting Officer and Project Officer a properly
completed HHS Section 508 Annual Report--see Section 508 policy on HHS
Office on Disability Web site. The Contracting Officer shall request
that the contractor provide the report in sufficient time for its
review and approval by the Contracting Officer, Project Officer, and
the Section 508 Official or designee, prior to exercise of an option.
The Contracting Officer shall ensure that the report and all related
approvals are made a part of the official contract/order file.
Subpart 317.5--Interagency Acquisitions Under the Economy Act
317.503 Determination and findings requirements.
(a) In addition to the D & F contents specified in FAR 17.503(a)(1)
and (2), each Assisted Contracting D & F shall address--
(3) The servicing organization(s) contemplated (the assigned HHS
contracting office shall be one of the servicing organizations
contemplated);
(4) For each organization and alternative approach contemplated,
the anticipated benefits to the OPDIV; the anticipated costs, including
associated fees or other compensation; and the contract/order placement
timeframe;
(5) The tradeoffs (cost, schedule, performance) among the
approaches considered;
(6) The recommended multi-agency or intra-agency contracting
approach; and
(7) The conclusion that the contract to be awarded by the selected
servicing organization is the most advantageous alternative to the
Government, notwithstanding fees and the increased risk associated with
assisted contracting.
Subpart 317.70--Multi-agency and Intra-agency Contracts
317.7000 Scope of subpart.
(a) This subpart prescribes policies for HHS' use of multi-agency
and intra-agency contracting under all authorities. It does not apply
when HHS transfers funds to another agency under an interagency
agreement whose primary purpose is other than contracting on HHS'
behalf.
(b) For multi-agency contracts under the authority of the Economy
Act, see FAR Subpart 17.5 and 317.503.
(c) Multi-agency contracting authorities other than the Economy Act
include but are not limited to the Clinger-Cohen Act [40 U.S.C.
11302(e)]; the Government Management Reform Act (Pub. L. 103-356);
Title III of the Federal Property and Administrative Services Act of
1949 (41 U.S.C. 251, et seq.); and 40 U.S.C. 501, Services for
Executive Agencies.
317.7001 Definitions.
As used in this subpart:
Multi-agency contracting describes a procedure in which a Federal
agency needing supplies or services obtains them using another Federal
agency's contract (direct ordering), the contracting assistance of
another Federal agency (assisted contracting), or both. In some cases,
more than one servicing organization may be involved in assisted
contracting.
Intra-agency contracting describes a procedure in which an HHS
OPDIV/STAFFDIV needing supplies or services obtains them by issuing an
order under another HHS OPDIV/STAFFDIV's contract or agreement (e.g., a
BPA--direct ordering); or using the contracting assistance of another
OPDIV/STAFFDIV (assisted contracting); or both.
Assisted contracting is a subset of multi-agency/intra-agency
contracting in which a servicing contracting office other than the
requesting organization's assigned contracting office contracts on
behalf of the requesting organization.
Direct ordering is a subset of multi-/intra-agency contracting in
which a contracting or ordering officer issues an order under another
OPDIV's or Federal agency's indefinite delivery vehicle (e.g., a GSA
FSS schedule or a GWAC).
Requesting organization refers to the organization with the
requirement for a multi- or intra-agency contract.
Servicing organization refers to an organization that assists a
requesting organization by awarding a contract or order on its behalf.
In the context of multi-agency contracting, the servicing organization
and requesting organization must be in different Federal agencies. For
intra-agency contracting, the servicing and requesting organizations
must both be HHS organizations.
317.7002 Potential multi-agency and intra-agency sources.
(a) Prior to deciding to use multi-agency or intra-agency
contracting, the requesting organization must perform sufficient market
research to consider the relative merits and costs of available
contracts and contracting offices for meeting the requesting
organization's need.
(b) Direct ordering conducted by HHS contracting officers using GSA
vehicles, GWACs, and vehicles established under the Federal Strategic
Sourcing Initiative does not require justification. HHS contracting
officers should be cautious about using unfamiliar contract vehicles.
When using vehicles other than those listed above, the Contracting
Officer shall include in the contract file a D & F, which is prepared
in consultation with the SBS, and which concludes that the chosen
vehicle is the best way to obtain the required product or service.
(c) With the exception of assisted contracts and direct order
acquisitions to be placed pursuant to the authority of the Economy Act,
which always require preparation of a supporting D & F--see FAR 17.503,
proposed assisted contracts approved as part of an annual or updated
acquisition plan require no additional documentation or approvals.
(d) For proposed assisted contracts not approved as part of an
annual or update acquisition plan, the requiring organization shall
identify the potential servicing organization(s); summarize the
services each source provides; and describe the compensation
arrangement(s). The assigned contracting office shall be one of the
alternatives considered. For multi-agency contract actions, this
information shall be included in the Assisted Contracting D & F
required in 317.7003(b).
317.7003 Documentation for multi-agency contracts.
(a) In the case of proposed direct ordering using vehicles other
than those listed in 317.7002(b), the HHS contracting officer shall
comply with the D & F requirement in 317.7003(b).
(b) If a proposed assisted contract, using a servicing organization
outside HHS, was not approved during preparation and review of the
annual acquisition plan, including updates, then the program/project
office or other requiring activity shall prepare an Assisted
Contracting D & F, similar to the D & F specified in FAR 17.503, but
augmented with the information specified in 317.503. The Project
Officer or other requiring official shall be responsible for preparing
and staffing this Assisted Contracting D & F.
(1) For assisted contracts greater than or equal to $500,000
(including the value of the base contract and all
[[Page 62439]]
options and, for indefinite delivery vehicles, the value of the vehicle
and all potential orders), the assigned HHS Contracting Officer shall
review and approve or reject the Assisted Contracting D & F, annotated
with the SBS' recommendation. The Contracting Officer's signature on
the Assisted Contracting D&F signifies his/her concurrence that
assisted contracting through the proposed servicing contracting office
is in the best interest of the government. The Project Officer must
retain a copy of the approved Assisted Contracting D & F.
(2) For assisted contracts less than $500,000, the HCA may delegate
authority to the Project Officer or other requiring official to approve
the required Assisted Contracting D & F. The $500,000 threshold
includes the value of the base contract and all options and, for
indefinite delivery vehicles, the value of the vehicle and all
potential orders.
(3) During a declared (Presidential or HHS Secretarial) emergency,
funding and requirements documentation may be transferred to a
servicing organization without an Assisted Contracting D & F. The
Project Officer shall document his/her file, explaining the exigent
circumstances.
(c) Assisted contracts require supporting interagency agreements,
as described in OFPP's memorandum, ``Interagency Acquisitions,'' dated
June 2008. Note that Part A of an interagency agreement can support
multiple assisted contracts. Each interagency agreement shall address
all the elements identified in OFPP's model interagency agreement
(Appendix 2 of OFPP's ``Interagency Acquisitions''). The level of
detail in HHS interagency agreements should be commensurate with the
dollar value and complexity of the assisted contract. HHS requesting
organizations shall not forward funding or requirements documentation
outside HHS without a properly executed interagency agreement; and
servicing activities within HHS (e.g., PSC and the NIH Information
Technology Acquisition and Assessment Center), shall not contract on
behalf of non-HHS requesting organizations without properly executed
interagency agreements.
317.7004 Documentation for intra-agency contracts.
(a) In the case of proposed direct ordering, using vehicles other
than those listed in 317.7002(b), the HHS contracting officer shall
comply with the D & F requirement in 317.7003(b).
(b) With the exception of assisted contracts and direct order
acquisitions to be placed pursuant to the authority of the Economy Act,
which always require preparation of a supporting D & F--see FAR 17.503,
proposed assisted contracts approved as part of an annual or updated
acquisition plan require no additional documentation or approvals.
(c) For proposed assisted contracts not approved as part of an
annual or updated acquisition plan, the requiring organization shall
identify the potential servicing organization(s); summarize the
services the source(s) provide(s); and describe the compensation
arrangement(s). The assigned contracting office shall be one of the
alternatives considered.
(d) Assisted intra-agency contracts may require supporting intra-
agency agreements or other documentation as prescribed by OPDIV
procedures.
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
PART 319--SMALL BUSINESS PROGRAMS
Subpart 319.2--Policies
Sec.
319.201 General policy.
319.202-2 Locating small business sources.
319.270-1 Solicitation provision and contract clause.
Subpart 319.5--Set-Asides for Small Business
319.501 General.
319.506 Withdrawing or modifying set-asides.
Subpart 319.7--Subcontracting with Small Business, Small Disadvantaged
Business, and Women-Owned Small Business Concerns
319.705 Responsibilities of the Contracting Officer under the
subcontracting assistance program.
319.705-5 Awards involving subcontracting plans.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 319.2--Policies
319.201 General policy.
(d) The functional management responsibilities for HHS' small
business program (i.e., small businesses; veteran-owned small
businesses; service-disabled, veteran-owned small businesses; HUBZone
small businesses; small disadvantaged businesses; and women-owned small
businesses) are delegated to the OSDBU Director. See the HHS Small
Business Program manual for information on the HHS small business
program, including SBS and Small Business Administration (SBA)
Procurement Center Representative (PCR) acquisition review timeframes.
(e) (1) One or more qualified SBSs will implement the HHS small
business program and shall be co-located within the following OPDIVs:
AHRQ; BARDA; CDC; CMS; FDA; HRSA; IHS; NIH; PSC; and SAMHSA. The OSDBU
Director shall exercise full management authority over SBSs.
(2) Within IHS, the primary SBS will be responsible for IHS'
overall implementation of the HHS small business program; however, each
IHS contracting office will have a small business technical advisor
(SBTA) to carry out those functions and responsibilities to implement
the small business program. The primary IHS SBS shall assist and
provide guidance to respective SBTAs.
319.202-2 Locating small business sources.
(a) OPDIVs shall foster, to the extent practicable, maximum
participation by small businesses in HHS acquisitions. Prior to issuing
a solicitation, the Contracting Officer shall make every reasonable
effort to find small business concerns that can compete for the
proposed requirement--see FAR 19.202, 10.001(2)(v), and
10.002(b)(1)(vii).
(1) If it cannot be determined in advance (through market research
under FAR Part 10, discussions between the Contracting Officer and the
SBS, or other means--see FAR 15.201, whether a solicitation in excess
of the simplified acquisition threshold can be set aside exclusively
for small business participation [whether for small businesses; HUBZone
small businesses; service-disabled, veteran-owned small businesses; or
8(a) small business(es)], the Contracting Officer may publish a notice
entitled ``Small Business Sources Sought'' in FedBizOpps. The purpose
of a Small Business Sources Sought notice is to identify the
availability and capability of qualified small business sources; and
their size classification relative to the appropriate North American
Industry Classification System (NAICs) code. This will assist the
Government in determining the appropriate acquisition method, including
whether a set-aside is possible. However, to solicit technical,
scientific, or business information for project planning purposes, an
RFI may be used--see 315.201(e).
(2) When using a Small Business Sought notice, an OPDIV shall not
request that potential sources provide more than the minimum
information necessary--see FAR 10.001(b), to determine whether they
have the apparent capability to perform a requirement and, therefore,
whether they should be included in any future
[[Page 62440]]
competition. The notice and the information received shall not be used
to determine how well respondents can perform a requirement, which can
only be evaluated in response to a solicitation. Accordingly, the
notice shall not be used to--
(i) Obtain capability statements that are evaluated and determined
acceptable or unacceptable;
(ii) Require cost/price proposals or detailed technical solutions;
(iii) Identify a prospective sole source; or
(iv) Exclude small business concerns.
(3) OPDIVs shall follow the standard HHS instructions for
completing a ``Small Business Sources Sought'' notice.'' The template
for the notice is available on the ASFR/OGAPA/DA Internet Web site. The
Contracting Officer shall post the notice in FedBizOpps by selecting
and completing a Sources Sought notice, accessible on the FedBizOpps
``Notices'' page at: http://www.fedbizopps.gov. Additional information
may be included in the notice in accordance with OPDIV procedures. The
Contracting Officer shall document, in the form of a memorandum to the
file, the results of the review by technical personnel of information
submitted in response to the notice, including whether each respondent
appears to be capable of performing the requirement. The Contracting
Officer shall attach a copy of the analysis provided by the technical
personnel to the memorandum.
319.270-1 Solicitation provision and contract clause.
(a) The Contacting Officer shall insert the provision in 352.219-
70, Mentor-Prot[eacute]g[eacute] Program, in solicitations that include
the clause in FAR 52.219-9, Small Business Subcontracting Plan. The
provision requires that offerors provide the Contracting Officer a copy
of their HHS Office of Small and Disadvantaged Business Utilization
(OSDBU)-approved mentor-prot[eacute]g[eacute] agreement in response to
a solicitation. (b) The Contacting Officer shall insert the clause in
352.219-71, Mentor-Prot[eacute]g[eacute] Program Reporting
Requirements, in contracts that include the clause in FAR 52.219-9,
Small Business Subcontracting Plan, and which are awarded to a
contractor with an HHS OSDBU-approved mentor-prot[eacute]g[eacute]
agreement.
Subpart 319.5--Set-Asides for Small Business
319.501 General.
(e) Subsequent to the Contracting Officer's recommendation on Form
HHS 653, HHS Small Business Review Form, the SBS shall review each
proposed acquisition strategy and either concur or not concur with the
Contracting Officer's recommendation. The PCR shall also review the
acquisition strategy and either concur or not concur with the
Contracting Officer's recommendation. If the Contracting Officer
disapproves the SBS's or the PCR's set-aside recommendation, the
Contracting Officer shall document the reasons on Form HHS 653 and
place the form in the contract file. The Contracting Officer shall make
the final determination as to whether the proposed acquisition will be
set-aside or not.
319.506 Withdrawing or modifying set-asides.
(d) Immediately upon notice from the Contracting Officer, the SBS
shall provide notification of all set-aside withdrawals to the OSDBU
Director by both telephone and e-mail.
Subpart 319.7--Subcontracting With Small Business, Small
Disadvantaged Business, and Women-Owned Small Business Concerns
319.705 Responsibilities of the Contracting Officer under the
subcontracting assistance program.
319.705-5 Awards involving subcontracting plans.
(a) (3) The Contracting Officer shall provide the PCR a period of 1
to 5 working days to review the contract award package, depending upon
the circumstances and complexity of the individual acquisition.
PART 322--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 322.8--Equal Employment Opportunity
Sec.
322.810 Solicitation provisions and contract clauses.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 322.8--Equal Employment Opportunity
322.810 Solicitation provisions and contract clauses.
(h) The Contracting Officer shall insert the clause in 352.222-70,
Contractor Cooperation in Equal Employment Opportunity Investigations,
in solicitations, contracts, and orders that include the clause in FAR
52.222-26, Equal Opportunity.
PART 323--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
Subpart 323.70--Safety and Health
Sec.
323.7000 Scope of subpart.
323.7001 Policy.
323.7002 Actions required.
Subpart 323.71--Green Purchasing Requirements
323.7100 Policy.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 323.70--Safety and Health
323.7000 Scope of subpart.
This subpart prescribes the use of a safety and health clause in
contracts involving hazardous materials or operations, and provides
procedures for administering safety and health provisions.
323.7001 Policy.
Various statutes and regulations (e.g., the Walsh-Healy Act and
Service Contract Act), require adherence to minimum safety and health
standards by contractors engaged in potentially hazardous work. FAR
subpart 23.3 serves as the primary reference regarding hazardous
materials. The Contracting Officer shall follow the guidance in this
subpart when the guidance in the FAR is not sufficient or does not meet
the safety and health situation for an acquisition.
323.7002 Actions required.
(a) Contracting activities. The Contracting Officer shall insert
the clause in 352.223-70, Safety and Health, or a clause substantially
the same, in solicitations and contracts that involve hazardous
materials or operations for the following types of requirements:
(1) Services or products.
(2) Research, development, or test projects.
(3) Transportation of hazardous materials.
(4) Construction, including construction of facilities on the
contractor's premises.
(b) Safety officers. OPDIV safety officers shall advise and assist
initiators of acquisition requests and Contracting Officers in--
(1) Determining whether safety and health provisions shall be part
of a prospective contract;
(2) Evaluating a prospective contractor's safety and health
programs; and
[[Page 62441]]
(3) Conducting post-award reviews and surveillance to the extent
deemed necessary.
(c) Initiators. Initiators of acquisition requests for items
described in paragraph (a) of this section shall--
(1) During the preparation of an acquisition plan or other
acquisition request documentation, and in the solicitation, ensure that
hazardous materials and operations to be used in the performance of the
contract are clearly identified; and
(2) During the period of performance--
(i) Apprise the Contracting Officer of any noncompliance with
safety and health provisions identified in the contract; and
(ii) Cooperate with the safety officer in conducting review and
surveillance activities.
Subpart 323.71--Green Purchasing Requirements
323.7100 Policy.
(a) The HHS guidelines and procedures for ``green purchasing'' may
be found in the HHS Affirmative Procurement Plan (APP), ``Purchasing
Environmentally Preferable Products and Services at the U.S. Department
of Health and Human Services.'' The APP encompasses the acquisition and
use of designated recycled content, and Energy Star[supreg], Electronic
Product Environmental Assessment Tool (EPEAT)-registered, energy-
efficient, bio-based, and environmentally preferable products.
(1) ASFR/OGAPA/DA has overall responsibility for monitoring the
OPDIVs' implementation of HHS' APP to ensure compliance with Executive
Order 13423, ``Strengthening Federal Environmental, Energy, and
Transportation Management;'' the White House Council on Environmental
Quality's Implementing Instructions for Executive Order 13423; Section
6002 of the Resource Conservation and Recovery Act of 1976; Section 104
of the Energy Policy Act of 2005; Section 9002 of the Farm Security and
Rural Investment Act of 2002; Section 612 of the Clean Air Act of 1990;
and FAR Part 23.
(2) The OPDIVs, through their designated APP Program Managers, are
responsible for establishing the necessary local procedures and
appropriate training requirements to ensure effective implementation of
the HHS APP.
PART 324--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
Subpart 324.1--Protection of Individual Privacy
Sec.
324.000 Scope of subpart.
324.102 General.
324.103 Procedures.
Subpart 324.2--Freedom of Information Act
324.203 Policy.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 324.1--Protection of Individual Privacy
324.000 Scope of subpart.
This part prescribes policies and procedures that apply
requirements of the Privacy Act of 1974 (5 U.S.C. 552a) and OMB
Circular A-130, Revised, November 30, 2000, to HHS contracts and cites
the Freedom of Information Act (5 U.S.C. 552, as amended).
324.102 General.
(a) It is HHS policy to protect the privacy of individuals to the
maximum possible extent, while permitting the exchange of records
required to fulfill HHS administrative and program responsibilities and
its responsibilities for disclosing records to which the general public
is entitled under the Freedom of Information Act (5 U.S.C. 552). The
Privacy Act of 1974 and the HHS implementation under 45 CFR Part 5b
apply ``when an agency provides by a contract for the operation by or
on behalf of the agency of a system of records to accomplish any agency
function * * *.'' The key factor is whether an HHS function is
involved. Therefore, the Privacy Act requirements apply to an HHS
contract when, under the contract, the contractor must maintain or
operate a system of records to accomplish an HHS function.
(e) The Project Officer, and, as necessary, the official designated
as the OPDIV's Privacy Act Coordinator and OGC-GLD, shall determine the
applicability of the Privacy Act to each proposed acquisition. The
Project Officer is required to include a statement in the AP or other
acquisition request document indicating whether the Privacy Act is or
is not applicable to a proposed acquisition.
(f) Whenever a Contracting Officer is informed that the Privacy Act
is not applicable, but the resultant contract will involve the
collection of individually identifiable personal data by the
contractor, the Contracting Officer shall include provisions to protect
the confidentiality of the records and the privacy of individuals
identified in the records--see 324.70.
324.103 Procedures.
(a) The Contracting Officer shall review all acquisition request
documentation to determine whether the Privacy Act requirements are
applicable. The Privacy Act requirements apply when a contract or order
will require the contractor to design, develop, or operate any Privacy
Act system of records on individuals to accomplish an agency function.
When applicable, the Contracting Officer shall include the two Privacy
Act clauses required by FAR 24.104 in the solicitation and contract or
order. In addition, the Contracting Officer shall include the two FAR
Privacy Act clauses, and other pertinent information specified in this
subpart, in any modification which results in the Privacy Act
requirements becoming applicable to a contract or order.
(b)(1) The Contracting Officer shall identify in the SOW/PWS the
system(s) of records to which the Privacy Act and the implementing
regulations are applicable.
(2) The Contracting Officer shall include the clause specified in
352.224-70, Privacy Act, in solicitations, contracts, and orders that
involve Privacy Act requirements to notify the contractor that it and
its employees are subject to criminal penalties for violations of the
Privacy Act (5 U.S.C. 552a(i)) to the same extent as HHS employees. The
clause also requires the contractor to ensure that each of its
employees knows the prescribed rules of conduct and each contractor
employee is aware that he/she is subject to criminal penalties for
violations of the Privacy Act. These requirements also apply to all
subcontracts awarded under the contract or order that require the
design, development, or operation of a system of records. The
Contracting Officer shall send the contractor a copy of 45 CFR Part 5b,
which includes the rules of conduct and other Privacy Act requirements.
(c) The Contracting Officer shall specify in the contract SOW/PWS
the disposition to be made of the system(s) of records upon completion
of contract performance. The contract SOW/PWS may require the
contractor to destroy the records, remove personal identifiers, or turn
the records over to the Contracting Officer. If there is a legitimate
need for a contractor to keep copies of the records after completion of
a contract, the contractor must take measures, as approved by the
Contracting Officer, to keep the records confidential and protect the
individuals' privacy.
(d) For any acquisition subject to Privacy Act requirements, the
Project
[[Page 62442]]
Officer, prior to award, or the COTR, after award, shall prepare and
have published in the Federal Register a ``system notice,'' describing
HHS' intent to establish a new system of records on individuals, to
make modifications to an existing system, or to disclose information in
regard to an existing system. The Project Officer shall attach a copy
of the system notice to the acquisition plan or other acquisition
request documentation. If a system notice is not attached, the
Contracting Officer shall inquire about its status and shall obtain a
copy from the Project Officer for inclusion in the contract file. If a
system notice has not been published in the Federal Register, the
Contracting Officer may proceed with the acquisition but shall not
award the contract until the system notice is published and the
Contracting Officer verifies its publication.
Subpart 324.2--Freedom of Information Act
324.203 Policy.
(a) The HHS regulation implementing the Freedom of Information Act
(FOIA), 5 U.S.C. 552, as amended, is set forth in 45 CFR Part 5.
(b) The Contracting Officer, upon receiving a FOIA request, shall
follow HHS and OPDIV procedures. As necessary, the Contracting Officer
shall coordinate all actions with the cognizant Freedom of Information
(FOI) Officer and the OGC-GLD. Only the FOI Officer is authorized to
release or deny release of records. The Contracting Officer shall be
familiar with the entire FOIA regulation in 45 CFR Part 5.
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
PART 327--PATENTS, DATA, AND COPYRIGHTS
Subpart 327.4--Rights in Data and Copyrights
Sec.
327.404-70 Solicitation provision and contract clause.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 327.4--Rights in Data and Copyrights
327.404-70 Solicitation provision and contract clause.
The Contracting Officer shall insert the clause in 352.227-70,
Publications and Publicity, in solicitations, contracts, and orders
that involve requirements which could lead to the contractor's
publishing the results of the award.
PART 328--BONDS AND INSURANCE
Subpart 328.3--Insurance
Sec.
328.301 Policy.
328.311 Solicitation provision and contract clause on liability
insurance under cost-reimbursement contracts.
328.311-2 Agency solicitation provisions and contract clauses.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 328.3--Insurance
328.301 Policy.
It is HHS policy to limit the Government's reimbursement, of its
contractors' liability to third persons for claims not covered by
insurance in cost-reimbursement contracts, to the Limitation of Funds
or Limitation of Cost clause of the contract. In addition, the amount
of the Government's reimbursement cannot exceed the final judgments or
settlements approved in writing by the Government.
328.311 Solicitation provision and contract clause on liability
insurance under cost-reimbursement contracts.
328.311-2 Agency solicitation provisions and contract clauses.
The Contracting Officer shall insert the clause in 352.228-7,
Insurance--Liability to Third Persons, in lieu of the clause in FAR
52.228-7, Insurance--Liability to Third Persons, in solicitations and
contracts when a cost-reimbursement contract is contemplated. The
Contracting Officer shall insert Alternate I or II based on the
conditions specified therein. This is an authorized FAR deviation.
PART 330--COST ACCOUNTING STANDARDS
Subpart 330.2--CAS Program Requirements
Sec.
330.201 Contract requirements.
330.201-5 Waiver.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 330.2--CAS Program Requirements
330.201 Contract requirements.
330.201-5 Waiver.
(a) OPDIVs shall forward waiver requests through appropriate
acquisition channels, including the HCA, to the Associate DAS for
Acquisition (non-delegable) for review. Associate DAS for Acquisition
shall exercise the waiver authority under FAR 30.201-5(a)(2).
PART 331--CONTRACT COST PRINCIPLES AND PROCEDURES
Subpart 331.1--Applicability
Sec.
331.101-70 Salary rate limitation.
331.102-70 Pricing of adjustments.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 331.1--Applicability
331.101-70 Salary rate limitation.
(a) Beginning in fiscal year 1990, Congress has stipulated in HHS
appropriations acts and continuing resolutions that, under applicable
NIH, SAMHSA, and AHRQ contracts, appropriated funds cannot be used to
pay the direct salary of an individual at a rate in excess of the
Federal Executive Schedule Level I.
(b) The Contracting Officer shall insert the clause in 352.231-70,
Salary Rate Limitation, in NIH, SAMHSA, and AHRQ solicitations and
contracts that exceed the simplified acquisition threshold when a cost-
reimbursement, fixed-price level-of-effort, time-and-materials, or
labor-hour contract is contemplated, including modifications of
contracts of those types for projects that support extramural program
activities. For purposes of this clause, for NIH: Projects that support
extramural program activities are basic and applied research projects;
and for SAMHSA and AHRQ: Projects that support extramural program
activities are mission-related projects, exclusive of contracts for
general support services.
331.102-70 Pricing of adjustments.
The Contracting Officer shall insert the clause in 352.231-71,
Pricing of Adjustments, in solicitations and contracts when a fixed-
price contract is contemplated.
PART 332--CONTRACT FINANCING
Subpart 332.4--Advance Payments for Non-Commercial Items
Sec.
332.402 General.
332.403 Applicability.
332.407 Interest.
332.409 Contracting Officer action.
332.409-1 Recommendation for approval.
Subpart 332.5--Progress Payments Based on Cost
332.501 General.
332.501-2 Unusual progress payments.
Subpart 332.7--Contract Funding
332.703-70 Funding contracts during a continuing resolution.
332.704 Limitation of cost or funds.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
[[Page 62443]]
Subpart 332.4--Advance Payments for Non-Commercial Items
332.402 General.
(e) The HCA (non-delegable) shall determine whether an advance
payment is in the public interest in accordance with FAR
32.402(c)(1)(iii)(A).
332.403 Applicability.
All R&D contracts with educational institutions located in the
United States shall provide for financing by use of advance payments,
in reasonable amounts, unless otherwise prohibited by law.
332.407 Interest.
(d) The HCA (non-delegable) shall make the determinations in FAR
32.407(d). The HCA may also approve interest-free advance payments for
educational institutions and other nonprofit organizations, whether
public or private, performing work under nonprofit contracts (without
fee) involving health services, educational programs, or social service
programs, such as the following:
(1) Community health representative services for an Indian Tribe.
(2) Narcotic addict rehabilitative services.
(3) Comprehensive health care services for Model Neighborhood
programs.
(4) Planning and development of health maintenance organizations.
(5) Dissemination of information derived from educational research.
(6) Surveys or demonstrations in the field of education.
(7) Producing or distributing educational media for disabled
persons including captioned films for the hearing impaired.
(8) Operation of language or area centers.
(9) Biomedical research and support services.
(10) Research surveys or demonstrations involving the training and
placement of health personnel and health professionals, and
dissemination of related information.
(11) Surveys or demonstrations in the field of social service.
332.409 Contracting Officer action.
332.409-1 Recommendation for approval.
The Contracting Officer shall transmit the information in FAR
32.409-1 (or FAR 32.409-2) to the HCA by memorandum.
Subpart 332.5--Progress Payments Based on Cost
332.501 General.
332.501-2 Unusual progress payments.
(a)(3) The HCA (non-delegable) shall approve an unusual progress
payment.
Subpart 332.7--Contract Funding
332.703-70 Funding contracts during a continuing resolution.
(a) Continuing resolutions. A continuing resolution (CR) is a
legislative measure enacted to keep existing Federal programs
functioning, generally at minimal levels, after the expiration of prior
fiscal year budget authority and until passage of regular appropriation
acts by Congress.
(b) Operating guidance. Because the terms of CRs may vary, for each
CR, specific operating guidance will be issued by the Office of the
Assistant Secretary for Resources and Technology (ASRT). This guidance
will--
(1) Establish the availability of funds for existing and new
projects or activities (consistent with the language of the CR);
(2) Identify any specific limits or constraints imposed; and
(3) Establish the authorized level and timing of obligations
permitted.
(c) Contracting activities, in concert with program, budget and
finance personnel, must carefully assess contract funding decisions
to--
(1) Ensure compliance with HHS guidance regarding the specific
terms of a CR;
(2) Maintain essential operations and activities; and
(3) Guard against violations of the Anti-Deficiency Act--see FAR
32.702.
332.704 Limitation of cost or funds.
See subpart 342.71, ``Administrative Actions for Cost Overruns,''
for procedures for handling anticipated cost overruns.
PART 333--PROTESTS, DISPUTES, AND APPEALS
Subpart 333.1--Protests
Sec.
333.102 General.
333.103 Protests to the agency.
333.104 Protests to GAO.
Subpart 333.2--Disputes and Appeals
333.203 Applicability.
333.209 Suspected fraudulent claims.
333.211 Contracting Officer's decision.
333.212 Contracting Officer's duties upon appeal.
333.212-70 Formats.
333.213 Obligation to continue performance.
333.215-70 Contract clauses.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 333.1--Protests
333.102 General.
(g)(1) The OGC-GLD serves as the liaison for protests lodged with
the Government Accountability Office (GAO); is designated as the office
responsible for all protests within HHS; and serves as the notification
point with GAO for all protests.
(2) Each contracting activity shall designate a protest control
officer to serve as an advisor to the Contracting Officer and to
monitor protests from the time of initial notification until the
protest has been resolved. Contracting activities shall forward a copy
of each appointment and termination of appointment of protest control
officers through appropriate acquisition channels, including the HCA,
to ASFR/OGAPA/DA and the Deputy Associate General Counsel, OGC-GLD.
333.103 Protests to the agency.
(f)(1) The Contracting Officer is authorized to make the
determination, using the criteria in FAR 33.104(b), to award a contract
notwithstanding the protest after obtaining the concurrence of the
contracting activity's protest control officer and the OGC-GLD. If a
protest has been lodged with the Secretary, is addressed to the
Secretary, or requests referral to the Secretary, the Contracting
Officer shall also obtain approval from Associate DAS for Acquisition
and OGC-GLD before making the award.
(2) The Contracting Officer shall require written confirmation of
any oral protest. To be considered timely, the protester must file a
written confirmation in accordance with the applicable provisions in
FAR 33.102(d)(2) and (e). In the following cases, the Contracting
Officer shall forward written protests received before award through
appropriate acquisition channels, including the HCA, to OGC-GLD for
processing:
(i) The protester requests referral to the Secretary of HHS.
(ii) The protest is known to have been lodged with GAO or the
Secretary or is addressed to either.
(iii) The Contracting Officer entertains some doubt as to the
proper action regarding the protest or believes it to be in the best
interest of the Government that the Secretary or GAO consider the
protest. Otherwise, the Contracting Officer may answer protests
addressed to the Contracting Officer with the concurrence of the
contracting activity's protest control officer and OGC-GLD.
The Contracting Officer shall submit files concerning these
protests in
[[Page 62444]]
duplicate, or as otherwise specified by OGC-GLD, within 5 calendar days
after protest receipt; mark the files ``IMMEDIATE ACTION--PROTEST
BEFORE AWARD;'' and include any documents relevant to issues raised in
the protest.
(3) The Contracting Officer shall treat protests received after
award as indicated in FAR 33.103(f)(3).
333.104 Protests to GAO.
(a) General procedures.
(3)(ii) OGC-GLD shall process protests filed with GAO, whether pre-
or post- award. The Contracting Officer shall prepare protest files as
follows: assemble them in a secure binder, fastened at the left side
with a fastener that will permit the full page to be read; include a
numerical document index, with the first two positions reserved for the
Contracting Officer's Statement of Facts and Circumstances and the
second for OGC-GLD's Memorandum of Law, that is paginated and, as
necessary for sizable files, divided into two or more volumes; and the
cover of the report shall identify it as the protest file and include
the solicitation number and the GAO Bid Protest file number--i.e., ``B-
number.'' In addition, the Contracting Officer shall fold drawings and
place them in an envelope in the binder and the solicitation/contract
shall constitute a separate exhibit, if it is voluminous in size. The
Contracting Officer shall distribute protest files as follows: four
copies to OGC-GLD and one copy to the contracting activity's protest
control officer. In addition to the items listed in FAR
33.104(a)(3)(ii)(A) through (G), the protest file shall include the
following documents:
(H) The current status of award. (Note: When award has been made,
this shall include whether performance has commenced, shipment or
delivery has been made, or a stop work order has been issued.)
(I) A copy of any mutual agreement to suspend work on a no-cost
basis, when appropriate--see FAR 33.104(c)(4).
(J) Copies of the notice of protest given offerors and other
parties when the notice is appropriate--see FAR 33.104(a)(2).
(K) A copy of the negotiation memorandum, when applicable.
(L) The name and telephone number of the person in the contracting
office who may be contacted for information relevant to the protest.
(M) A copy of the competitive range determination.
(N) The acquisition plan, source selection plan, and the source
selection decision document.
(O) The Contracting Officer's statement of facts and circumstances,
including numbered findings of fact prepared with complete
documentation, and all the facts and rationale, both favorable and
unfavorable, to the Contracting Officer's position.
(4) OGC-GLD shall make the necessary distributions referenced in
FAR 33.104(a)(4).
(5) Unless an alternative arrangement is reached with OGC-GLD, the
Contracting Officer shall furnish one copy of the protest file
containing the documentation specified in paragraph (a)(3)(ii) of this
section (with the exception of the Contracting Officer statement of
facts and circumstances) and FAR 33.104(a)(3)(ii)(A) through (G) to
OGC-GLD within 5 calendar days from receipt of the protest. In
addition, the Contracting Officer shall also accommodate any other OGC-
GLD requests for documents which may be needed prior to the
aforementioned 5-day time period. The Contracting Officer shall submit
the Contracting Officer's statement of facts and circumstances and the
additional copies of documentation within 14 calendar days from receipt
of the protest. Since the statute allows only a short time period in
which to respond to protests lodged with GAO, the Contracting Officer
shall handle each protest on a priority basis. OGC-GLD shall submit
copies of the protest file to GAO, the protestor, and any intervenors
in accordance with FAR 33.104(a)(4)(i).
(6) Since OGC-GLD will furnish the protest file to GAO, the
protestor, and any intervenors, comments on the file from the protestor
and any intervenors will be sent to OGC-GLD.
(7) OGC-GLD shall serve as the GAO point of contact for protests
lodged with GAO.
(b) Protests before award.
(1) To make an award notwithstanding a protest, the Contracting
Officer shall prepare a finding using the criteria in FAR 33.104(b)(1),
have it executed by the HCA (non-delegable), and forward it, along with
a written request for approval to make the award (addressed to the
Associate DAS for Acquisition through OGC-GLD). Should OGC-GLD concur,
it shall forward the request to the Associate DAS for Acquisition for
final approval. The written request for approval shall contain all
relevant documentation as attachments to the request, so that the
information may be considered by Associate DAS for Acquisition.
(2) If the request to make an award notwithstanding the protest is
approved by the Associate DAS for Acquisition, OGC-GLD shall notify
GAO. Whether the request is approved or not, OGC-GLD shall
telephonically notify the contracting activity's protest control
officer of the Associate DAS for Acquisition decision, and the
contracting activity's protest control officer shall immediately notify
the Contracting Officer. Should the Associate DAS for Acquisition
approve the request, ASFR/OGAPA/DA shall send a copy of that written
approval to the contracting activity's protest control officer.
(c) Protests after award.
(2) If the Contracting Officer believes performance should be
allowed to continue notwithstanding a protest, the Contracting Officer
shall prepare a written finding using the criteria in FAR 33.104(c)(2).
The HCA (non-delegable) shall execute the written finding, which the
contracting office shall forward pursuant to the procedures described
in paragraph (b)(1) of this section. The notification procedures stated
in paragraph (b)(2) of this section shall apply to protests after
award.
(d) Findings and notice. The Contracting Officer shall prepare the
written notice required by FAR 33.104(d) and provide a copy to OGC-GLD.
OGC-GLD shall provide copies to GAO, the protester, and any
intervenors.
(g) Notice to GAO. FAR 33.104(g) requires the agency to notify GAO,
if the agency has not followed any of GAO's recommendations (other than
costs) within 60 days after its decision. By the end of the 60-day
period, the Contracting Officer shall notify OGC-GLD of the status of
implementing the recommendations and reasons for any non-compliance.
OGC-GLD shall serve as the designated official to comply with the
requirements of FAR 33.104(g).
(i) Express option. When GAO invokes the express option, the
Contracting Officer shall prepare the complete protest file as
described in paragraph (a)(3) of this section, to include the item in
paragraph (a)(3)(i), and deliver it (hand-carry, if necessary) to OGC-
GLD in time to meet the submittal date GAO established. OGC-GLD shall
notify the Contracting Officer of the submittal date after GAO has
finalized its requirements. If the Contracting Officer is not notified
about a changed schedule, the timelines for a regular bid protest
outlined in FAR 33.104(a)(3)(i) shall apply.
Subpart 333.2--Disputes and Appeals
333.203 Applicability.
(c) The Secretary has designated the Civilian Board of Contract
Appeals (CBCA) as the authorized ``Board'' to
[[Page 62445]]
hear and determine disputes for the Department.
333.209 Suspected fraudulent claims.
The Contracting Officer shall submit any instance of a contractor's
suspected fraudulent claim to the OIG for investigation.
333.211 Contracting Officer's decision.
(a)(2) The Contracting Officer shall refer a proposed final
decision to OGC-GLD, for advice as to the legal sufficiency and format
before sending the final decision to the contractor. The Contracting
Officer shall provide OGC-GLD with the pertinent documents with the
submission of each proposed final decision.
(4)(v) When using the paragraph in FAR 33.211 (a)(4)(v), the
Contracting Officer shall insert the words ``Civilian'' before each
mention of the term ``Board of Contract Appeals.''
(h) At any time within the period of appeal, the Contracting
Officer may modify or withdraw the final decision. If a contractor has
appealed the final decision to the CBCA, the Contracting Officer shall
forward the recommended action to OGC-GLD with a supplement to the
contract file that supports the recommended correction or amendment.
333.212 Contracting Officer's duties upon appeal.
(a) The rules set forth in the ``Rules of the Civilian Board of
Contract Appeals,'' or the rules established by the U.S. Court of
Federal Claims, as appropriate, shall govern appeals.
(b) The OGC-GLD is designated as the Government Trial Attorney to
represent the Government in the defense of appeals before the CBCA.
OGC-GLD shall provide the decision by CBCA to the appropriate
Contracting Officer for compliance in accordance with the CBCA's
decision.
(c) If an appeal is filed with the CBCA, the Contracting Officer
shall assemble a file, within 30 days of receipt of an appeal or
notification that an appeal has been filed, that consists of all
documents pertinent to the appeal, including the following:
(1) The decision and findings of fact from which the appeal is
taken.
(2) The contract, including specifications and pertinent
modifications, plans and drawings.
(3) All correspondence between the parties pertinent to the appeal,
including the letter or letters of claim in response to which the
decision was issued.
(4) Transcripts of any testimony taken during the course of
proceedings, and affidavits or statements of any witness on the matter
in dispute made prior to the filing of the notice of appeal with the
CBCA.
(5) Any additional information considered pertinent. The
Contracting Officer shall furnish the appeal file to the Government
Trial Attorney for review and approval. After approval, the Contracting
Officer shall prepare four copies of the file--i.e., one for the CBCA,
one for the appellant, one for the Government Trial Attorney, and one
for the contracting office.
(d) At all times after the filing of an appeal, the Contracting
Officer shall render whatever assistance is requested by the Government
Trial Attorney. When an appeal is set for hearing, the Contracting
Officer shall provide Government witnesses and specified physical and
documentary evidence to the Trial Attorney. The Trial Attorney shall
ensure the presence of all witnesses and documentary evidence at both
the prehearing conference and hearing.
(e) If a contractor, which has filed an appeal with the CBCA,
elects to accept fully the decision from which the appeal was taken, or
any modification to it, and gives written notification of acceptance to
the Government Trial Attorney or the concerned Contracting Officer, the
Government Trial Attorney shall notify the CBCA of the disposition of
the dispute in accordance with Rule 27 of the CBCA.
(f) If the contractor has elected to appeal to the U.S. Court of
Federal Claims, the U.S. Department of Justice will represent HHS.
However, the Contracting Officer shall coordinate all actions through
OGC-GLD.
333.212-70 Formats.
(a) Contracting activities shall use the following format in
transmitting appeal files to CBCA:
Your reference:
(Docket No.)
(insert name)
Clerk of the Board, Civilian Board of Contract Appeals
1800 F. Street, Washington, DC 20405 (for regular mail delivery)
1800 M Street, 6th floor, Washington, DC 20036 [for overnight and
physical (hand-carry) delivery]
Dear (insert name):
Transmitted herewith are documents relative to the appeal under
Contract No. ---- with the ------------ (insert name of contractor) in
accordance with the procedures under Rule 4. The Government Trial
Attorney for this case is ------------ (insert General Law Division,
Office of General Counsel, Department of Health and Human Services, 330
Independence Avenue, SW., Washington, DC 20201).
The request for payment of charges resulting from the processing of
this appeal shall be addressed to: ------------ (insert name and
address of cognizant finance office.)
Sincerely yours,
Contracting Officer
Enclosures
(b) Contracting activities shall use the following format in
notifying the appellant that the appeal file was submitted to CBCA:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
(insert contractor name and address)
Dear ------------: (insert name)
An appeal file has been compiled relative to the appeal under Contract
No. ------ (insert number), and has been submitted to the Civilian
Board of Contract Appeals (CBCA). The enclosed duplicate of the appeal
file is identical to that submitted to CBCA, except for contract
documents which you already have been provided. You may furnish or
suggest any additional information deemed pertinent to the appeal to
CBCA according to their rules.
The CBCA will provide you with further information concerning this
appeal.
Sincerely yours,
Contracting Officer
Enclosure
333.213 Obligation to continue performance.
(a) The Contracting Officer shall use the Disputes clause at FAR
52.233-1 without the use of Alternate I. However, if the Contracting
Officer determines that the Government's interest would be better
served by use of paragraph (i) in Alternate I, the HCA or CCO shall
approve its use.
333.215-70 Contract clauses.
(a) The Contracting Officer shall insert the clause in 352.233-70,
Choice of Law (Overseas), in solicitations and contracts when
performance will be outside the United States, its possessions, and
Puerto Rico, except as otherwise provided in a government-to-government
agreement.
(b) The Contracting Officer shall insert the clause in 352.233-71,
Litigation and Claims, in solicitations and contracts when a cost-
reimbursement, time-and-materials, or labor-hour contract is
contemplated
[[Page 62446]]
(other than a contract for a commercial item.)
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
PART 334--MAJOR SYSTEM ACQUISITION
Subpart 334.2--Earned Value Management System
Sec.
334.200 Definitions.
334.201 Policy.
334.202 Integrated Baseline Reviews (IBRs).
334.203 Solicitation provisions and contract clauses.
334.203-70 HHS solicitation provisions and contract clauses.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 334.2--Earned Value Management System
334.200 Definitions.
As used in this subpart, the following definitions shall apply:
Full EVMS means tracking and reporting of both the cost and
schedule aspects of a contract using the principles and guidelines
described in ANSI/EIA Standard-748, Earned Value Management Systems
(using the version of the Standard that is in effect at the time of the
solicitation).
Partial EVMS means tracking and reporting of only the schedule
aspects of a contract using the principles and guidelines described in
ANSI/EIA Standard-748, Earned Value Management Systems (using the
version of the Standard that is in effect at the time of the
solicitation).
334.201 Policy.
(a) For acquisitions for development designated as major in
accordance with both OMB Circular A-11 and HHS policy on major
acquisitions; for acquisitions that involve substantial development,
modification or enhancement; or for acquisitions that involve
significant upgrade of operational or steady state systems or programs,
use of an Earned Value Management System (EVMS) is required as follows:
(1) For individual cost-reimbursement or fixed-price-incentive
contracts (with incentive based on cost) valued at $10 million to $25
million, including options, full EVMS (as defined in 334.200) is
required and the contractor's EVMS shall comply with the guidelines in
ANSI/EIA Standard-748.
(2) For individual firm-fixed-price, term form (level-of-effort) of
any type, time-and-materials, or labor-hour contracts valued at $10
million to $25 million, including options, partial EVMS (as defined in
334.200) is required and the contractor's EVMS shall comply with the
guidelines in ANSI/EIA Standard-748.
(3) For individual cost-reimbursement or fixed-price-incentive
contracts (with incentive based on cost) valued at more than $25
million, including options, full EVMS (as defined in 334.200) is
required and the contractor's EVMS must be formally validated and
accepted by the Government--i.e., the contractor's Cognizant Federal
Agency (CFA), as defined in FAR 2.101 and described in FAR 42.003).
(4) For individual firm-fixed-price, term form (level-of-effort) of
any type, time-and-materials, or labor-hour contracts valued at more
than $25 million, including options, partial EVMS (as defined in
334.200) is required and the contractor's EVMS must be formally
validated and accepted by the Government--i.e., the contractor's CFA.
(5) For individual contracts of any type valued at less than $10
million, including options, full or partial EVM application, as
appropriate to the contract type involved, is optional. The
recommendation to use EVM should be based upon a risk analysis by the
Program Manager/Project Officer. A decision to use EVM at this level
requires the prior approval of the cognizant HCA.
(b) EVM is not required, but may be applied with prior written
approval of the HCA, on contracts of any dollar amount meeting either
of the following criteria:
(1) The acquisition is for non-developmental support services
(e.g., program office support, Independent Verification & Validation
services), steady state operations, basic and applied research, and
routine services (e.g., building maintenance, help-desk services,
landscaping services).
(2) The contract is for a commercial item(s) under FAR Part 12.
(c) When full EVM is required on a prime contract, it applies to
subcontracts issued there under if those subcontracts have a value and
are of a type and subject matter that would have required the use of
full EVM had they been prime contracts. However, if the prime contract
requires the use of only partial EVM, any subcontracts to which EVM is
made applicable, because of dollar value, contract type or subject
matter, shall require only partial EVM.
(d) When offerors are required to provide an EVMS plan as part of
their proposals, the Contracting Officer shall request the assistance
of the Project Officer (and/or an appropriate HHS-designated third
party) in determining the adequacy of such proposed EVMS plans.
(e) The selection or use of a particular contract type, if done
only or primarily to avoid the application of full EVM to the
acquisition is prohibited.
334.202 Integrated Baseline Reviews (IBRs).
(a) An IBR normally should be conducted as a post-award activity. A
pre-award IBR may be conducted only if--
(1) The AP contains documentation that demonstrates the need and
rationale for a pre-award IBR, including an assessment of the impact on
the source selection schedule and the expected benefits;
(2) The use of a pre-award IBR is approved in writing by the HCA
prior to the issuance of the solicitation;
(3) The source selection plan specifically addresses how the
results of a pre-award IBR will be used during source selection,
including any weight to be given to it in source evaluation, and that
same or similar rationale is clearly set forth in the solicitation;
and,
(4) Specific arrangements are made, and budget authority is
provided, to compensate all offerors who prepare for or participate in
a pre-award IBR; and the solicitation informs prospective offerors of
the means for and conditions of such compensation.
334.203 Solicitation provisions and contract clauses.
The FAR EVMS solicitation provisions and contract clause shall not
be used in HHS contracts. See 334.203-70 for the HHS solicitation
provisions and contract clauses.
334.203-70 HHS solicitation provisions and contract clauses.
As provided in 334.201(a) and 334.202, the Contracting Officer
shall insert the following:
(a) The provision in 352.234-1, Notice of Earned Value Management
System--Pre-Award IBR, in solicitations that will require the
contractor to use an EVMS, whether full or partial, when the Government
requires an IBR prior to award.
(b) The provision in 352.234-2, Notice of Earned Value Management
System--Post-Award IBR, in solicitations that will require the
contractor to use an EVMS, whether full or partial, when the Government
requires an IBR after contract award.
(c) The clause in 352.234-3, Full Earned Value Management System,
in solicitations and contracts, valued at, or greater than, $25
million, when a cost-reimbursement or fixed-price-incentive contract
(where the incentive is based
[[Page 62447]]
on cost) is contemplated, and which require a contractor to use full
EVMS. The Contracting Officer shall use the clause with its Alternate I
when the contract value is equal to or greater than $10 million, but
less than $25 million.
(d) The clause in 352.234-4, Partial Earned Value Management
System, in solicitations and contracts, valued at, or greater than, $25
million, when a firm-fixed-price, time-and-materials, labor-hour, or
term-form cost-plus-fixed-fee contract is contemplated, and which
require a contractor to use partial EVMS. The Contracting Officer shall
use the clause with its Alternate I when the contract value, is equal
to or greater than $10 million, but less than $25 million.
PART 335--RESEARCH AND DEVELOPMENT CONTRACTING
Sec.
335.070 Cost sharing.
335.070-1 Policy.
335.070-2 Amount of cost sharing.
335.070-3 Method of cost sharing.
335.070-4 Contract award.
335.071 Special determinations and findings affecting research and
development contracting.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
335.070 Cost-sharing.
335.070-1 Policy.
(a) Contracting activities shall encourage performing organizations
to contribute to the cost of performing R & D, through the use of cost-
sharing contracts, where there is a probability that the contractor
will receive present or future benefits from participation, such as
increased technical know-how, training for employees, acquisition of
equipment, and use of background knowledge in future contracts. Cost-
sharing is intended to serve the mutual interests of the Government and
the performing organization by helping to ensure efficient utilization
of the resources available for the conduct of R & D projects and by
promoting sound planning and prudent fiscal policies of the performing
organization. The Contracting Officer shall use a cost-sharing
contract, unless the Contracting Officer determines that a request for
cost-sharing would not be appropriate because of the following
circumstances:
(1) The particular R & D objective or scope of effort for the
project is specified by the Government rather than proposed by the
performing organization. This would usually include any formal
Government solicitation for a specific project.
(2) The R & D effort has only minor relevance to the non-Federal
activities of the performing organization, and the organization is
proposing to undertake the R & D primarily as a service to the
Government.
(3) The organization has little or no non-Federal sources or funds
from which to make a cost contribution. Organizations which are
predominantly engaged in R & D and have little or no production or
other service activities may not be in a favorable position to make a
cost contribution. Accordingly, the Contracting Officer shall normally
not request cost-sharing, if cost-sharing would require the Government
to provide funds through some other means (such as fees) to enable the
organization to cost-share.
(b) The Contracting Officer has the responsibility for negotiating
cost-sharing. Each R & D contract file shall indicate whether the
Contracting Officer considered cost-sharing appropriate for that
particular contract and in what amount. If cost sharing was not
appropriate, the file must include a statement and factual basis for
that decision (e.g., ``Because the contractor will derive no benefits
from this award that can be applied to its commercial activities, cost-
sharing is not considered appropriate.'') The Contracting Officer shall
coordinate with the Project Officer before documenting this decision.
(c) If the Contracting Officer considers cost-sharing appropriate
for an R & D contract and the contractor refuses to accept this type of
contract, the Contracting Officer may make an award without cost-
sharing, if the Contracting Officer concludes that payment of the full
cost of the R & D effort is necessary to obtain the services of that
particular contractor.
335.070-2 Amount of cost sharing.
When cost-sharing is appropriate, the Contracting Officer shall use
the following guidelines to determine the amount of cost participation
by the contractor:
(a) The amount of cost participation depends on the extent to which
the R & D effort or results are likely to enhance the performing
organization's capability, expertise, or competitive position, and the
value of this enhancement to the performing organization. Therefore,
contractor cost participation could reasonably range from as little as
one percent or less of the total project cost to more than 50 percent
of the total project cost. Ultimately, cost-sharing is a negotiable
item. As such, the amount of cost-sharing shall be proportional to the
anticipated value of the contractor's gain.
(b) If the performing organization will not acquire title to, or
the right to use, inventions, patents, or technical information
resulting from the R & D project, it is normally appropriate to obtain
less cost-sharing than in cases in which the performer acquires these
rights.
(c) A fee or profit is not normally paid to the performing
organization, if the organization is to contribute to the cost of the R
& D effort, but the amount of cost-sharing may be reduced to reflect
the fact that the organization is foregoing its normal fee or profit in
the research. However, if the R & D is expected to be of only minor
value to the performing organization, and if a statute does not require
cost-sharing, it may be appropriate for the performer to make a
contribution in the form of a reduced fee or profit rather than sharing
costs of the project.
(d) The organization's participation may be considered over the
total term of the project, so that a relatively high contribution in
one year may be offset by a relatively low contribution in another.
(e) A relatively low degree of cost-sharing may be appropriate, if
an area of R & D requires special stimulus in the national interest.
335.070-3 Method of cost sharing.
Cost-sharing on individual contracts may be accomplished either by
a contribution of part or all of one or more elements of allowable cost
of the work being performed or by a fixed amount or stated percentage
of the total allowable costs of the project. Contractors shall not
charge costs contributed to the Government under any other instrument
(e.g., grant or contract), including allocations to other instruments
as part of any independent R & D program.
335.070-4 Contract award.
Consistent with HHS' objectives of competition and support of the
small business program, Contracting Officers shall not award contracts
solely on the basis of an organization's ability or willingness to
cost-share. Contracting Officers shall make awards primarily on the
contractor's competence and only after adequate competition has been
obtained among large and small business organizations, whenever
possible. An offeror's willingness to share costs is not a technical
evaluation consideration, but a business consideration, which is
secondary to selecting the best qualified source.
335.071 Special determinations and findings affecting research and
development contracting.
OPDIV heads shall sign individual and class D & Fs for--
[[Page 62448]]
(a) Acquisition or construction of equipment or facilities on
property not owned by the United States pursuant to 42 U.S.C.
241(a)(7); and
(b) Use of an indemnification provision in an R & D contract
pursuant to 42 U.S.C. 241(a)(7).
PART 337--SERVICE CONTRACTING--GENERAL
Subpart 337.1--Service Contracts--General
Sec.
337.103-70 Solicitation provisions and contract clauses.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 337.1--Service Contracts--General
337.103-70 Solicitation provisions and contract clauses.
(a) The Contracting Officer shall insert the clause in 352.237-70,
Pro-Children Act, in solicitations, contracts, and orders that involve
(a) kindergarten, elementary, or secondary education or library
services or (b) health or daycare services that are provided to
children under the age of 18 on a routine or regular basis pursuant to
the Pro-Children Act of 1994.
(b) The Contracting Officer shall insert the clause in 352.237-71,
Crime Control Act--Reporting of Child Abuse, in solicitations,
contracts, and orders that require performance on Federal land or in a
Federally operated (or contracted) facility and involve the
professions/activities performed by persons specified in the Crime
Control Act of 1990, including, but not limited to, physicians, nurses,
dentists, health care practitioners, optometrists, psychologists,
emergency medical technicians, alcohol or drug treatment personnel,
child care workers and administrators, emergency medical technicians
and ambulance drivers.
(c) The Contracting Officer shall insert the clause in 352.237-72,
Crime Control Act--Requirement for Background Checks, in solicitations,
contracts, and orders that involve providing child care services to
children under the age of 18, including social services, health and
mental health care, child- (day) care, education (whether or not
directly involved in teaching), and rehabilitative programs covered
under the Crime Control Act of 1990 (Act).
PART 339--ACQUISITION OF INFORMATION TECHNOLOGY
Subpart 339.1--General
Sec.
339.101 Policy.
Subpart 339.2--Electronic and Information Technology
339.201 Clarification.
339.201-70 Required provision and contract clause.
339.203 Approval of exceptions.
Subpart 339.70--Use of General Services Administration Blanket Purchase
Agreements for Independent Risk Analysis Services
339.7000 Policy.
339.7001 Request for approval to make an award to other than a GSA
BPA holder.
339.7002 Notice of intended award.
Subpart 339.71--Information Security Management
339.7100 Definitions.
339.7101 Policy.
339.7102 Applicability.
339.7103 Solicitation and contract clause.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 339.1--General
339.101 Policy.
(d)(1) The Contracting Officer shall insert the clause in 352.239-
70, Standard for Security Configurations, in solicitations, contracts,
and orders that involve the operation or acquisition of an information
technology system (for definition of the latter term, see http://www.hhs.gov/ocio/policy.)
An HHS information security policy waiver, the template for which
is available at: http://intranet.hhs.gov/infosec/policies_memos.html,
must be approved in order to deviate from HHS OCIO Standard 2009-
0001.001S, HHS Standard for Security Configurations Language in HHS
Contracts, dated January 30, 2009. A copy of the approved waiver shall
be forwarded to the Contracting Officer who, in turn, shall request a
comparable deviation for the clause in 352.239-70.
(2) The Contracting Officer shall insert the clause in 352.239-71,
Standard for Encryption Language, in solicitations, contracts, and
orders that involve the acquisition or lease of, or the requirement to
use, desktop or laptop computers, mobile devices, or portable media to
store or process HHS sensitive information that the Project Officer
categorizes as moderate or high under Federal Information Processing
Standard (FIPS) 199, Standards for Security Categorization of Federal
Information and Information Systems, dated February 2004. An HHS
information security policy waiver, the template for which is available
at: http://intranet.hhs.gov/infosec/policies_memos.html, must be
approved in order to deviate from HHS OCIO Standard 2009-0002.001S, HHS
Standard for Encryption Language in HHS Contracts, dated January 30,
2009. A copy of the approved waiver shall be forwarded to the
Contracting Officer who, in turn, shall request a comparable deviation
for the clause in 352.239-71.
Subpart 339.2--Electronic and Information Technology
339.201 Clarification.
FAR Subpart 39.2, Electronic and Information Technology, requires
Federal agencies to ensure that, when acquiring EIT, Federal employees
with disabilities and members of the public with disabilities have
access to and use of information and data that is comparable to
individuals without disabilities. This EIT access requirement does not
apply to a contractor's internal workplaces. EIT that is neither used
nor accessed by Federal employees or members of the public is not
subject to the Access Board accessibility standards. Contractors in
their professional capacity are not members of the public for purposes
of Section 508.
339.201-70 Required provision and contract clause.
(a) The Contracting Officer shall insert the provision in 352.239-
73(a), Electronic and Information Technology Accessibility, in
solicitations valued at more than the micro-purchase threshold that
involve the development, acquisition, maintenance, or use of EIT
products and services subject to Section 508 of the Rehabilitation Act
of 1973, as amended, including EIT deliverables such as electronic
documents and reports. (Note: Exceptions to this requirement can be
found in FAR 39.204.) After approval of the Section 508 Official or
designee, the Contracting Officer may waive the requirement for
offerors to provide an HHS Section 508 Product Assessment Template, if
Section 508 EIT conformance can be determined conclusively through
other less formal methods. The Contracting Officer shall document in
the award file any waiver for submission of the Product Assessment
Template. The approval of a waiver by the Section 508 Official does
not, however, eliminate the requirement for product assessment against
Section 508 accessibility standards.
(b) The Contracting Officer shall insert the clause in 352.239-
73(b), Electronic and Information Technology Accessibility, in
contracts and orders that involve the development, acquisition,
maintenance, or use of EIT products and services, including EIT
deliverables such as electronic documents and reports, subject to
Section 508 of the Rehabilitation Act of
[[Page 62449]]
1973, as amended, unless the EIT products and services are incidental
to the project. (Note: Other exceptions to this requirement can be
found at FAR 39.204.)
(c) When acquiring EIT products and services subject to Section 508
of the Rehabilitation Act of 1973, as amended, in the following
circumstances, the Contracting Officer shall insert the paragraph in
352.239-73(c), Schedule for Contractor Submission of Section 508 Annual
Report, which requires a contractor to provide an HHS Section 508
Annual Report, at the end of the clause in 352.239-73(b) and cite the
schedule for report submission, where indicated:
(1) New multiple-year contracts.
(2) Existing multiple-year contracts, with a performance period of
1 year or more remaining as of January 16, 2008 (the effective date of
HHS' interim acquisition guidance).
(3) New multiple-year task and delivery orders exceeding $100,000
awarded under IDIQ or FSS contracts.
(4) Existing multiple-year task and delivery orders exceeding
$100,000 awarded under IDIQ or FSS contracts, with a task/delivery
order performance period of 1 year or more remaining as of January 16,
2008.
(5) New multiple-year BPA orders that exceed $100,000.
(6) Existing multiple-year BPA orders with a performance period of
1 year or more remaining as of January 16, 2008.
(7) New multiple-year contracts with option periods/quantities.
(8) Existing multiple-year contracts with option periods/quantities
remaining as of January 16, 2008.
(d) Before adding funds to a multiple-year contract or order--see
339.201-70(c), that involves the acquisition of EIT products and
services, including EIT deliverables such as electronic documents and
reports, subject to Section 508 of the Rehabilitation Act of 1973, as
amended, the Contracting Officer shall ensure that the contractor has
provided to the Contracting Officer and COTR a properly completed HHS
Section 508 Annual Report--see Section 508 policy on HHS Office on
Disability Web site. The Contracting Officer shall request that the
contractor provide the report in sufficient time for its review and
approval by the Contracting Officer, COTR, and the Section 508 Official
or designee, prior to funding performance beyond the currently funded
contract performance period. The Contracting Officer shall ensure that
the report and all related approvals are made a part of the official
contract/order file. The Section 508 Official or designee shall monitor
the Annual Reports, direct corrective measures to improve their
submission and quality, and report improvement actions taken to the HHS
Office on Disability.
339.203 Approval of exceptions.
(a) Procedures to document exception and determination requests are
set forth in the OPDIV/STAFFDIV Section 508 Implementation Plans
required by paragraph 4.1 of the HHS Section 508 policy.
(b) In the development of an AP or other acquisition request
document, the Contracting Officer shall ensure that all Section 508
commercial non-availability or undue burden exception determination
requests for applicable EIT requirements are: (1) Documented and
certified in accordance with the requirements of paragraph 4.3, Section
508 Compliance Exceptions, of the HHS Section 508 policy; (2) signed by
the Project Officer; (3) approved by the OPDIV Section 508 Official or
designee; and (4) included in the AP or other acquisition request
document provided by the Project Officer to the contracting office.
(c) In instances where a technical evaluation has been performed,
and no organization's proposed products or services meet some or all of
Section 508 accessibility standards, in order to proceed with the
acquisition, the Contracting Officer shall provide an exception
determination request along with the technical evaluation panel's
assessment of the Section 508 evaluation factor to the designated
Section 508 Official or designee for review and approval/disapproval.
See 315.304 regarding obtaining approval of technical evaluation panel
assessments by the Section 508 Official or designee. The Contracting
Officer shall include the Section 508 Official's or designee's
approval/disapproval of the exception determination request in the
official contract file and reference it, as appropriate, in all source
selection documents. For further information, see paragraphs 4.3,
Section 508 Compliance Exceptions, and paragraph 11, Appendix A, of HHS
Section 508 policy--see Section 508 policy on HHS Office on Disability
Web site.
Subpart 339.70--Use of General Services Administration Blanket
Purchase Agreements for Independent Risk Analysis Services
339.7000 Policy.
GSA has established government-wide BPAs for independent risk
analysis services, including verification and validation of in-house
risk assessments. For information on ordering procedures, see the
attachment to OMB memorandum (M-08-10), Use of Commercial Independent
Risk Analysis Services Blanket Purchase Agreements (BPA), dated
February 4, 2008, available on the OMB Web site. HHS policy is for
contracting activities to use the GSA BPA sources to the maximum
practicable extent.
339.7001 Request for approval to make an award to other than a GSA BPA
holder.
The Contracting Officer, in conjunction with the OPDIV/STAFFDIV
Chief Information Security Officer (CISO), may determine, as part of
conducting market research for independent risk analysis services
expected to exceed the micro-purchase threshold, that obtaining the
required services from a source other than a GSA BPA holder will result
in the best value to the Government. In that event, the Contracting
Officer shall prepare a request for approval at least 15 business days
prior to the planned date of the contract or order award and forward it
through the HCA and the OPDIV/STAFFDIV CISO for concurrence, to the
SPE. The SPE shall coordinate the processing of the request with the
CAO and the HHS CIO. The request for approval shall briefly describe
the services required, indicate the intended source's pricing and other
terms and conditions, and provide the rationale for award to the
intended source rather than the GSA BPA holders. The request may
include additional supporting rationale to document the best value
decision, as appropriate.
339.7002 Notice of intended award.
The CAO, or designee, in conjunction with the HHS CIO, will review
the Contracting Officer's request for approval to make an award to
other than a GSA BPA holder for independent risk analysis services and
either approve or disapprove the request in writing. If the CAO, or
designee, approves the request, upon approval, the CAO, or designee,
shall send a notice of intended award to the designated GSA BPA
Contracting Officer, with a copy to OMB's E-Government and Information
Technology Administrator, at least 10 business days prior to the date
of the proposed award explaining how it provides the best value to the
Government. In the event of unusual and compelling urgency, the CAO, or
designee, shall provide the notice of intended award to GSA as soon as
practicable.
[[Page 62450]]
Subpart 339.71--Information Security Management
339.7100 Definitions.
As used in this subpart, the following definitions shall apply:
Adequate security means, in accordance with OMB Circular A-130,
Management of Federal Information Resources, Appendix 3 (Security of
Federal Automated Information Resources), security commensurate with
the risk and magnitude of harm resulting from the loss, misuse, or
unauthorized access to or modification of information.
Federal information means, in accordance with OMB Circular A-130,
Management of Federal Information Resources, Appendix 3 (Security of
Federal Automated Information Resources), information created,
collected, processed, disseminated, or disposed of by or for the
Federal Government.
Federal information system means an information system used or
operated by an executive agency, by a contractor of an executive
agency, or by another organization on behalf of an executive agency.
Information means, in accordance with OMB Circular A-130,
Management of Federal Information Resources, Appendix 3 (Security of
Federal Automated Information Resources), any communication or
representation of knowledge such as facts, data, or opinions in any
medium or form, including textual, numerical, graphic, cartographic,
narrative, or audiovisual forms.
Information infrastructure means the underlying framework that
information systems and assets rely on in processing, transmitting,
receiving, or storing information electronically.
Information security means protecting information and information
systems from unauthorized access, use, disclosure, disruption,
modification or destruction in order to provide--
(1) Integrity, which means guarding against improper information
modification or destruction, and includes ensuring information non-
repudiation and authenticity;
(2) Confidentiality, which means preserving authorized restrictions
on access and disclosure, including means of protecting personal
privacy and proprietary information;
(3) Availability, which means ensuring timely and reliable access
to and use of information; and
(4) Privacy, which means regulating the appropriate collection,
maintenance, use, and dissemination of personal information by Federal
executive branch agencies. It essentially prohibits disclosure without
consent.
Information system means a discrete set of information resources
organized for the collection, processing, maintenance, transmission,
and dissemination of information, in accordance with defined
procedures, whether automated or manual.
Information technology includes computers, ancillary equipment
(including imaging peripherals, input, output, and storage devices
necessary for security and surveillance), peripheral equipment designed
to be controlled by the central processing unit of a computer,
software, firmware and similar procedures, services (including support
services) and related resources.
339.7101 Policy.
HHS is responsible for implementing an information security program
to ensure that its information systems and associated facilities, as
well as those of its contractors, provide a level of security
commensurate with the risk and magnitude of harm that could result from
the loss, misuse, disclosure, or modification of the information
contained in those systems. Each system's level of security shall
protect the integrity, confidentiality, and availability of the
information and comply with all security and privacy-related laws and
regulations.
339.7102 Applicability.
Contracting Officers are responsible for ensuring that all
information technology acquisitions comply with the Federal Information
Security Management Act (FISMA), the HHS-OCIO Information Systems
Security and Privacy Policy, and FISMA-related FAR and HHSAR
requirements. This policy does not apply to national security systems
as defined in FISMA.
339.7103 Solicitation and contract clause.
The Contracting Officer shall insert the clause in 352.239-72,
Security Requirements for Federal Information Technology Resources, in
solicitations and contracts that involve contractor access to Federal
information or Federal information systems.
SUBCHAPTER G--CONTRACT MANAGEMENT
PART 342--CONTRACT ADMINISTRATION
Subpart 342.3--Contract Administration Office Functions
Sec.
342.302 Contract administration functions.
Subpart 342.7--Indirect Cost Rates
342.705 Final indirect cost rates.
Subpart 342.70--Contract Monitoring
342.7000 Purpose.
342.7001 Contract monitoring responsibilities.
342.7002 Procedures to be followed when a contractor fails to
perform.
342.7003 Withholding of contract payments.
342.7003-1 Solicitation provisions and contract clauses.
342.7003-2 Procedures to be followed when withholding payments.
Subpart 342.71--Administrative Actions for Cost Overruns
342.7100 Scope of subpart.
342.7101 Contract administration.
342.7101-1 General.
342.7101-2 Procedures.
342.7102 Contract modifications.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 342.3--Contract Administration Office Functions
342.302 Contract administration functions.
(c)
(1) In multiple-year contracts or orders, the OPDIV's Section 508
Official or designee, as well as the Contracting Officer and COTR,
shall review and approve all Section 508 Annual Reports before the
Contracting Officer makes final payment or any option is exercised
under any applicable contract/order. In contracts/orders of 1 year or
less in duration, the aforementioned officials shall review and approve
the Section 508 conformance certification before final payment is made.
The Contracting Officer also shall ensure that the report and all
related approvals are made a part of the official contract/order file.
(2) The Contracting Officer shall insert the clause in 352.242-70,
Key Personnel, in solicitations and contracts when the Contracting
Officer will designate contractor key personnel. See FAR 35.015 for
additional information regarding key personnel when contracting for R &
D.
(3) The Contracting Officer shall insert the clause in 352.242-71,
Tobacco-free Facilities, in solicitations, contracts, and orders when
some or all of the contractor's performance (including construction
services), will take place on HHS-owned or controlled properties. The
clause shall not be included if performance requires only that
contractor staff attend occasional meetings on HHS properties. In that
case, contractor employees are considered ``visitors.'' Further, for
any proposed or existing construction contract or order, the
Contracting Officer shall coordinate any exceptions to the policy,
raised by an incumbent or potential contractor based on union or
collective bargaining agreements, with the designated OPDIV tobacco-
free
[[Page 62451]]
policy contact point for final disposition.
(4) The Contracting Officer shall insert the clause in 352.242-72,
Native American Graves Protection and Repatriation Act, in
solicitations, contracts, and orders that require performance on Tribal
lands or are for construction on Federal or Tribal lands.
Subpart 342.7--Indirect Cost Rates
342.705 Final indirect cost rates.
(a) The Division of Cost Allocation, PSC, shall establish indirect
cost rates, research patient care rates, and, as necessary, fringe
benefit, computer, and other special costing rates for use in contracts
awarded to State and local governments, colleges and universities,
hospitals, and other nonprofit organizations.
(b) The Division of Financial Advisory Services, NIH, shall
establish indirect cost rates, fringe benefit rates, and similar rates
for use in contracts awarded to commercial organizations.
Subpart 342.70--Contract Monitoring
342.7000 Purpose.
Contract monitoring is an essential element of contract
administration that the Contracting Officer and the COTR perform
jointly. This subpart describes HHS' operating concepts.
342.7001 Contract monitoring responsibilities.
(a) The contract establishes the obligations of both the Government
and the contractor. The Contracting Officer is the only person
authorized to modify the contract and shall confirm all modifications
in writing.
(b) The Contracting Officer shall ensure the contractor's
compliance with all the terms and conditions of the contract. The
Contracting Officer shall inform the contractor by letter (if not
already stipulated in the contract) of the authorities and
responsibilities of the Government personnel involved with the
contract.
(c) The Contracting Officer shall use program, technical, and other
personnel for assistance and advice in monitoring the contractor's
performance and in other areas of post-award administration. The
Contracting Officer shall ensure that these individuals understand and
carry out their assigned responsibilities. The individual roles and
corresponding responsibilities typically involve, but are not limited
to, the following:
(1) The role of program and technical personnel in monitoring the
contract is to assist and advise the Contracting Officer, and act as
the COTR when so designated by the Contracting Officer. COTR activities
include--
(i) Providing technical monitoring during contract performance and
advising the Contracting Officer relating to delivery, acceptance, or
rejection of deliverables in accordance with the terms of the contract;
(ii) Assessing contractor performance;
(iii) Recommending necessary changes to the schedule of work and
period of performance to accomplish the objectives of the contract (The
COTR shall provide the Contracting Officer a written request along with
an appropriate justification and a funding document, if additional
funds are needed.);
(iv) Reviewing invoices/vouchers and recommending approval/
disapproval by the Contracting Officer, including providing comments
regarding anything unusual discovered in the review (Note: If a
contract contains the Salary Rate Limitation clause specified in
352.231-70, the Contracting Officer, in conjunction with the COTR,
shall monitor the contractor's invoices to ensure that the contractor
is billing salaries, including those of subcontractors, at rates no
higher than the Federal Executive Schedule salary rate limitation in
effect on the date(s) the expense(s) was/were incurred.);
(v) Reviewing and recommending approval or disapproval of
subcontractors, overtime, travel, and key personnel changes; and
(vi) Participating, as necessary, in various phases of the contract
closeout process.
(2) The roles of the contract administrator, auditor, cost analyst,
and property administrator are to assist or advise the Contracting
Officer in post-award administration. Such activities include--
(i) Evaluating contractor systems and procedures, including
accounting policies and procedures, purchasing policies and practices,
property accounting and control, wage and salary plans and rate
structures, personnel policies and practices, etc.;
(ii) Processing disputes under the Disputes clause and any
resultant appeals;
(iii) Modifying or terminating the contract; and
(iv) Determining the allowability of: costs charged in incentive or
cost- reimbursement type contracts, and progress payments under fixed-
price contracts. This is important for awards to new organizations or
those with financial weaknesses.
(d) The Contracting Officer shall ensure that contractor
performance and contract monitoring conform with contract terms and
conditions. If performance is not satisfactory or if problems are
anticipated, the Contracting Officer shall take immediate action to
protect the Government's rights under the contract. The Contracting
Officer shall notify appropriate officials of problems that cannot be
resolved within contract limitations and whenever the contractor is not
meeting contract or program objectives. The notification shall include
a statement of corrective actions that the Contracting Officer is
taking.
342.7002 Procedures to be followed when a contractor fails to perform.
(a) The Contracting Officer shall initiate immediate action to
protect the Government's rights whenever the contractor fails to comply
with either the delivery or reporting terms of the contract. Compliance
with the reporting terms includes those reports the contractor is
required to submit directly to the payment office. The payment office
shall notify the Contracting Officer promptly when the contractor does
not submit such a report on time.
(b) When the contract contains a termination for default clause,
the contractor's failure to submit any report, perform services, or
deliver work when required by the contract is considered a default in
performance. The Contracting Officer shall immediately issue a formal
10-day cure notice pursuant to FAR 49.607. The notice shall include a
statement to the effect that payments will be withheld if the default
is not cured within the time period specified in the notice or if the
default is not determined to be excusable.
(1) If the default is cured or is determined to be excusable, the
Contracting Officer shall not initiate the withholding action.
(2) If the default is not determined to be excusable or a response
is not received within the allotted time, the Contracting Officer shall
initiate withholding action on all contract payments and shall
determine whether termination for default or other action would be in
the best interest of the Government.
(c) When the contract does not contain a termination for default
clause, the Contracting Officer shall consider a contractor's failure
to submit any required report, perform services, or deliver work when
required by the contract a failure to perform. The Contracting Officer
shall immediately issue a written notice to the contractor that:
specifies the failure, and provides a 10-day period (or longer period
if the Contracting Officer deems it necessary) within which the
contractor shall either
[[Page 62452]]
cure the failure or provide reasons for an excusable delay. The notice
shall include a statement to the effect that payments will be withheld,
if the default is not cured within the time period specified in the
notice or if the default is not determined to be excusable.
(1) If the contractor cures the failure or the Contracting Officer
determines it to be excusable, the Contracting Officer shall not
initiate the withholding action.
(2) If the Contracting Officer does not determine the failure
excusable or the contractor does not provide a response within the
allotted time, the Contracting Officer shall initiate withholding
action on all contract payments and shall determine whether termination
for convenience or other action would be in the best interest of the
Government.
(d) The Contracting Officer shall consult FAR subpart 49.4 for
further guidance before taking any of the actions described in this
section.
342.7003 Withholding of contract payments.
342.7003-1 Solicitation provisions and contract clauses.
(a) The Contracting Officer shall insert the clause in 352.242-73,
Withholding of Contract Payments, and the clause in FAR 52.249-14,
Excusable Delays, in solicitations and contracts when a cost-
reimbursement, time-and-materials, or labor-hour contract is
contemplated.
(b) The Contracting Officer shall insert the clause in 352.242-74,
Final Decisions on Audit Findings, in solicitations and contracts when
a cost-reimbursement contract is contemplated, except for those
contracts with:
(1) A foreign government or agency of that government; or
(2) An international organization or a subsidiary body of that
organization that the HCA determines would not be appropriate.
342.7003-2 Procedures to be followed when withholding payments.
(a) When appropriate, the Contracting Officer shall withhold any
contract payment when a required report is overdue or the contractor
fails to perform or deliver required work or services. When making the
determination to withhold contract payments in accordance with the
Withholding of Contract Payments clause, the Contracting Officer shall
immediately notify the servicing finance office in writing of the
determination to withhold payments. The notice of suspension shall
contain all information necessary for the finance office to identify
the contract--i.e., contract number, task/delivery order number, and
contractor name and address.
(b) The Contracting Officer shall immediately notify the contractor
in writing that payments have been suspended until the default or
failure is cured.
(c) When the contractor cures the default or failure, the
Contracting Officer shall immediately notify, in writing, all
recipients of the notice of withholding that the withholding is to be
lifted and contract payments are to be resumed.
(d) When taking any actions regarding the withholding of payments,
the Contracting Officer shall not waive any of the Government's rights
when corresponding with the contractor.
Subpart 342.71--Administrative Actions for Cost Overruns
342.7100 Scope of subpart.
This subpart sets forth the procedures to follow when a cost
overrun is anticipated. A cost overrun occurs when the allowable actual
cost of performing a cost-reimbursement type contract exceeds the total
estimated cost specified in the contract.
342.7101 Contract administration.
342.7101-1 General.
Upon receipt of information that a contractor's accumulated cost
and projected expenditures will exceed the limit of funds obligated by
the contract, the Contracting Officer shall coordinate immediately with
the appropriate program office to determine whether the contract should
be modified or terminated. If the Contracting Officer receives
information from a source other than the contractor that a cost overrun
is anticipated, the Contracting Officer shall verify the information
with the contractor and remind the contractor of the notification
requirements of the Limitation of Cost clause.
342.7101-2 Procedures.
(a) Upon notification that a cost overrun is anticipated, the
Contracting Officer shall inform the contractor to submit a request for
additional funds, which shall include the following:
(1) Name and address of contractor.
(2) Contract number and expiration date.
(3) Contract item(s) and amount(s) creating overrun.
(4) The elements of cost which changed from the original estimate--
i.e., labor, material, travel, and overhead, to be furnished in the
following format:
(i) Original estimate.
(ii) Costs incurred to date.
(iii) Estimated cost to completion.
(iv) Revised estimate.
(v) Amount of adjustment.
(5) The factors responsible for the increase (e.g., error in
estimate, changed conditions).
(6) The latest date by which funds must be available for commitment
to avoid contract slippage, work stoppage, or other program impairment.
(b) When the contractor submits a notice of a projected overrun,
the Contracting Officer shall--
(1) Immediately advise the appropriate program office and furnish
the office a copy of the notice and any other data received;
(2) Request audit or cost advisory services, and technical support,
as necessary, for evaluation of information and data received; and
(3) Maintain continuous communications with the program office to
obtain: a timely written decision and justification to continue the
contract with additional funds (including verification of funds
availability); or a timely written decision and request to terminate
the contract.
(c) After receiving the decision by the program office, the
Contracting Officer shall promptly notify the contractor in writing of
the following:
(1) The specified amount of additional funds allotted to the
contract.
(2) Work shall be discontinued when the allotted funds are
exhausted, and any work performed after that date is at the
contractor's risk.
(3) The Government is considering whether to allot additional funds
to the contract and will notify the contractor as soon as possible, but
that any work performed after the currently allotted funds are
exhausted is at the contractor's risk. (Timely, formal notification of
the Government's intention is essential to preclude loss of contractual
rights in the event of dispute, termination, or litigation.)
(d) If the program office permits, the Contracting Officer shall
refrain from issuing any contractual documents that require new work or
an extension of time, pending resolution of the projected overrun.
342.7102 Contract modifications.
(a) Modifications to contracts containing the Limitation of Cost
clause shall include either--
(1) A provision which: Increases the estimated or ceiling amount in
the Limitation of Cost clause of the contract; and states that such
clause will thereafter apply to the increased amount; or
(2) A provision stating that the estimated or ceiling amount in the
[[Page 62453]]
Limitation of Cost clause is not changed by the modification.
(b) The Contracting Officer shall not change a fixed-fee in a
contract when funding a cost overrun. The Contracting Officer shall
make changes in fixed-fee only to reflect changes in the SOW/PWS that
justify an increase or decrease in fee.
SUBCHAPTER H--CLAUSES AND FORMS
PART 352--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 352.1--Instructions for Using Provisions and Clauses
Sec.
352.100 Scope of subpart.
352.101-70 Application of provisions and clauses.
Subpart 352.2--Texts of Provisions and Clauses
352.201-70 Paperwork Reduction Act.
352.202-1 Definitions.
352.203-70 Anti-lobbying.
352.215-1 Instructions to offerors--competitive acquisition.
352.215-70 Late proposals and revisions.
352.216-70 Additional cost principles.
352.219-70 Mentor-prot[eacute]g[eacute] program.
352.219-71 Mentor-prot[eacute]g[eacute] program reporting
requirements.
352.222-70 Contractor cooperation in equal employment opportunity
investigations.
352.223-70 Safety and health.
352.224-70 Privacy Act.
352.227-70 Publications and publicity.
352.228-7 Insurance--liability to third persons.
352.231-70 Salary rate limitation.
352.231-71 Pricing of adjustments.
352.233-70 Choice of law (overseas).
352.233-71 Litigation and claims.
352.234-1 Notice of earned value management system--pre-award
Integrated Baseline Review.
352.234-2 Notice of earned value management system--post-award
Integrated Baseline Review.
352.234-3 Full earned value management system.
352.234-4 Partial earned value management system.
352.237-70 Pro-Children Act.
352.237-71 Crime Control Act--reporting of child abuse.
352.237-72 Crime Control Act--requirement for background checks.
352.239-70 Standard for security configurations.
352.239-71 Standard for encryption language.
352.239-72 Security requirements for Federal information technology
resources.
352.239-73 Electronic information and technology accessibility.
352.242-70 Key personnel.
352.242-71 Tobacco-free facilities.
352.242-72 Native American Graves Protections and Repatriation Act.
352.242-73 Withholding of contract payments.
352.242-74 Final decisions on audit findings.
352.270-1 Accessibility of meetings, conferences, and seminars to
persons with disabilities.
352.270-2 Indian preference.
352.270-3 Indian preference program.
352.270-4 Protection of human subjects.
352.270-5 Care of laboratory animals.
352.270-6 Restriction on use of human subjects.
352.270-7 Conference sponsorship request and conference materials
disclaimer.
352.270-8 Prostitution and related activities.
352.270-9 Non-discrimination for conscience.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 352.1--Instructions for Using Provisions and Clauses
352.100 Scope of subpart.
This subpart provides guidance for applying HHS provisions and
clauses in solicitations, contracts, and orders.
352.101-70 Application of provisions and clauses.
(a) Unless otherwise qualified (e.g., by the type of contract
contemplated, the nature of the requirement, or dollar amount) in a
prescription for a solicitation provision or contract clause specified
in Part 352 or elsewhere in the HHSAR, the term ``contract'' means--
(1) An award, including modifications thereunder, that exceeds the
simplified acquisition threshold, including a task order or delivery
order, whether placed under a GSA FSS contract, an IDIQ contract, a
GWAC, or a BPA, and a purchase order placed under the authority of FAR
subpart 13.5); and
(2) A bilateral award--i.e., when both the Contracting Officer and
the contractor sign the award document, that exceeds the micro-purchase
threshold but which does not exceed the simplified acquisition
threshold.
(b) When the term ``order'' is specified in a prescription for a
solicitation provision or order clause, it means an order that exceeds
the micro-purchase threshold but which does not exceed the simplified
acquisition threshold, except those bilateral awards specified in
(a)(2) above.
(c) If a clause is included in the master instrument (e.g., in an
IDIQ contract or a BPA), it is not necessary to also include the clause
in a task order or delivery order thereunder.
(d) When a dollar amount or dollar threshold is specified (e.g.,
$25 million or simplified acquisition threshold), the dollar amount of
the award (contract or order) includes any options thereunder.
Subpart 352.2--Texts of Provisions and Clauses
352.201-70 Paperwork Reduction Act.
As prescribed in 301.106(b), the Contracting Officer shall insert
the following clause:
Paperwork Reduction Act (January 2006)
(a) This contract involves 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;
therefore, the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.) shall apply to this contract. No plan, questionnaire,
interview guide or other similar device for collecting information
(whether repetitive or single time) may be used without the Office
of Management and Budget (OMB) first providing clearance.
Contractors and the Contracting Officer's Technical Representative
shall be guided by the provisions of 5 CFR Part 1320, Controlling
Paperwork Burdens on the Public, and seek the advice of the HHS
operating division or Office of the Secretary Reports Clearance
Officer to determine the procedures for acquiring OMB clearance.
(b) The Contractor shall not expend any funds or begin any data
collection until OMB Clearance is received. Once OMB Clearance is
received from the Contracting Officer's Technical Representative,
the Contracting Officer shall provide the Contractor with written
notification authorizing the expenditure of funds and the collection
of data. The Contractor shall allow at least 120 days for OMB
clearance. The Contracting Officer will consider excessive delays
caused by the Government which arise out of causes beyond the
control and without the fault or negligence of the Contractor in
accordance with the Excusable Delays or Default clause of this
contract.
(End of clause)
352.202-1 Definitions.
As prescribed in FAR 2.201, the Contracting Officer shall insert
the clause in FAR 52.202-1, Definitions, as revised by 302.201:
Definitions (January 2006)
(a) In accordance with 52.202-1(a)(1), substitute the following as
paragraph (a):
``(a) The term ``Secretary'' or ``Head of the Agency'' (also
called ``Agency Head'') means the Secretary, Deputy Secretary, or
any Assistant Secretary, Administrator or Commissioner of the
Department of Health and Human Services; and the term ``his/her duly
authorized representative'' means any person, persons, or board
authorized to act for the Secretary.''
(b) In accordance with 52.202-1(a)(1), add the following paragraph
(h):
``(h) The term ``Contracting Officer's Technical
Representative'' means the person
[[Page 62454]]
who monitors the technical aspects of contract performance. The
Contracting Officer's Technical Representative is not authorized to
issue any instructions or directions which cause any increase or
decrease in the Statement of Work/Performance Work Statement/
Specifications which would result in the increase or decrease in the
price of this contract, or changes in the delivery schedule or
period of performance of this contract. If applicable, the
Contracting Officer's Technical Representative is not authorized to
receive or act upon any notification or revised cost estimate
provided by the Contractor in accordance with the Limitation of Cost
or Limitation of Funds clauses of this contract.''
352.203-70 Anti-lobbying.
As prescribed in 303.808-70, the Contracting Officer shall insert
the following clause:
Anti-Lobbying (January 2006)
Pursuant to the current HHS annual appropriations act, except
for normal and recognized executive-legislative relationships, the
Contractor shall not use any HHS contract funds for (i) publicity or
propaganda purposes; (ii) the preparation, distribution, or use of
any kit, pamphlet, booklet, publication, radio, television or video
presentation designed to support or defeat legislation pending
before the Congress or any State legislature, except in presentation
to the Congress or any State legislature itself; or (iii) payment of
salary or expenses of the Contractor, or any agent acting for the
Contractor, related to any activity designed to influence
legislation or appropriations pending before the Congress or any
State legislature.
(End of clause)
352.215-1 Instructions to offerors--competitive acquisition.
As prescribed in 315.209, the Contracting Officer shall insert the
following paragraph (e) in the provision in FAR 52.215-1, Instructions
to Offerors--Competitive Acquisition:
(e) Restriction on disclosure and use of data.
(1) The proposal submitted in response to this request may
contain data (trade secrets; business data (e.g., commercial
information, financial information, cost and pricing data); and
technical data) which the offeror, including its prospective
subcontractor(s), does not want used or disclosed for any purpose
other than for evaluation of the proposal. The use and disclosure of
any data may be so restricted; provided, that the Government
determines that the data is not required to be disclosed under the
Freedom of Information Act, 5 U.S.C. 552, as amended, and the
offeror marks the cover sheet of the proposal with the following
statements, specifying the particular portions of the proposal which
are to be restricted:
``Unless disclosure is required by the Freedom of Information
Act, 5 U.S.C. 552, as amended, (the Act) as determined by Freedom of
Information (FOI) officials of the Department of Health and Human
Services (HHS), data contained in the portions of this proposal
which the offeror has specifically identified by page number,
paragraph, etc. as containing restricted information shall not be
used or disclosed except for evaluation purposes.
The offeror acknowledges that HHS may not be able to withhold a
record (e.g., data, document, etc.) nor deny access to a record
requested pursuant to the Act and that the HHS' FOI officials must
make that determination. The offeror hereby agrees that the
Government is not liable for disclosure if HHS has determined that
disclosure is required by the Act.
If a contract is awarded to the offeror as a result of, or in
connection with, the submission of this proposal, the Government
shall have the right to use or disclose the data to the extent
provided in the contract. Proposals not resulting in a contract
remain subject to the Act.
The offeror also agrees that the Government is not liable for
disclosure or use of unmarked data and may use or disclose the data
for any purpose, including the release of the information pursuant
to requests under the Act. The data subject to this restriction are
contained in pages (insert page numbers, paragraph designations,
etc. or other identification).''
(2) In addition, the offeror must mark each page of data it
wishes to restrict with the following statement:
``Use or disclosure of data contained on this page is subject to
the restriction on the cover sheet of this proposal or quotation.''
(3) Offerors are cautioned that proposals submitted with
restrictive statements or statements differing in substance from
those cited above may not be considered for award. The Government
reserves the right to reject any proposal submitted with
nonconforming statement(s).
352.215-70 Late proposals and revisions.
As prescribed in 315.208, the Contracting Officer shall insert the
following provision:
Late Proposals and Revisions (January 2006)
Notwithstanding the procedures contained in FAR 52.215-1(c)(3)
of the provision of this solicitation entitled Instructions to
Offerors--Competitive Acquisition, the Government may consider a
proposal received after the date specified for receipt if it appears
to offer the best value to the Government and it was received before
proposals were distributed for evaluation, or within 5 calendar days
after the exact time specified for receipt, whichever is earlier.
(End of provision)
352.216-70 Additional cost principles.
As prescribed in 316.307(j), the Contracting Officer shall insert
the following clause:
Additional Cost Principles (January 2006)
(a) Bid and proposal (B & P) costs.
(1) B & P costs are the immediate costs of preparing bids,
proposals, and applications for potential Federal and non-Federal
contracts, grants, and agreements, including the development of
scientific, cost, and other data needed to support the bids,
proposals, and applications.
(2) B & P costs of the current accounting period are allowable
as indirect costs.
(3) B & P costs of past accounting periods are unallowable in
the current period. However, if the organization's established
practice is to treat these costs by some other method, they may be
accepted if they are found to be reasonable and equitable.
(4) B & P costs do not include independent research and
development (IR & D) costs covered by the following paragraph, or
pre-award costs covered by paragraph 36 of Attachment B to OMB
Circular A-122.
(b) IR & D costs.
(1) IR & D is research and development conducted by an
organization which is not sponsored by Federal or non-Federal
contracts, grants, or other agreements.
(2) IR & D shall be allocated its proportionate share of
indirect costs on the same basis as the allocation of indirect costs
to sponsored research and development.
(3) The cost of IR & D, including its proportionate share of
indirect costs, is unallowable.
(End of clause)
352.219-70 Mentor-prot[eacute]g[eacute] program.
As prescribed in 319.270-1(a), the Contracting Officer shall insert
the following provision:
Mentor-Prot[eacute]g[eacute] Program (October 2009)
(a) Large business prime contractors serving as mentors in the
HHS Mentor-Prot[eacute]g[eacute] program are eligible for HHS
subcontracting plan credit, and shall submit a copy of their HHS
Office of Small and Disadvantaged Business Utilization (OSDBU)-
approved mentor prot[eacute]g[eacute] agreements as part of their
offers. The amount of credit provided by the Contracting Officer to
a mentor firm for prot[eacute]g[eacute] firm developmental
assistance costs shall be calculated on a dollar for dollar basis
and reported by the mentor firm in the Summary Subcontract Report
via the Electronic Subcontracting Reporting System (eSRS) at http://www.esrs.gov. The mentor firm and prot[eacute]g[eacute] firm shall
submit to the Contracting Officer a signed joint statement agreeing
on the dollar value of the developmental assistance the mentor firm
provided. (For example, a mentor firm would report a $10,000
subcontract awarded to a prot[eacute]g[eacute] firm and provision of
$5,000 of developmental assistance as $15,000 of developmental
assistance.) The mentor firm may use this additional credit towards
attaining its subcontracting plan participation goal under this
contract.
(b) The program consists of--
(1) Mentor firms--large businesses that: (i) demonstrate the
interest, commitment, and capability to provide developmental
assistance to small business prot[eacute]g[eacute] firms; and (ii)
have a Mentor-Prot[eacute]g[eacute] agreement approved by HHS'
OSDBU;
(2) Prot[eacute]g[eacute] firms--firms that: (i) seek
developmental assistance; (ii) qualify as small businesses, veteran-
owned small businesses, service-disabled veteran-owned small
businesses, HUBZone small businesses,
[[Page 62455]]
small disadvantaged businesses, or woman-owned businesses; and (iii)
have a Mentor-Prot[eacute]g[eacute] agreement approved by HHS'
OSDBU; and
(3) Mentor-Prot[eacute]g[eacute] agreements--joint agreements,
approved by HHS' OSDBU, which detail the specific terms, conditions,
and responsibilities of the mentor-prot[eacute]g[eacute]
relationship.
(End of provision)
352.219-71 Mentor-prot[eacute]g[eacute] program reporting
requirements.
As prescribed in 319.270-1(b), the Contracting Officer shall insert
the following clause:
Mentor-Prot[eacute]g[eacute] Program Reporting Requirements (October
2009)
The Contractor shall comply with all reporting requirements
specified in its Mentor-Prot[eacute]g[eacute] agreement approved by
HHS' OSDBU.
(End of clause)
352.222-70 Contractor cooperation in equal employment opportunity
investigations.
As prescribed in 322.810(h), the Contracting Officer shall insert
the following clause:
Contractor Cooperation in Equal Employment Opportunity Investigations
(October 2009)
(a) In addition to complying with the clause in FAR 52.222-26,
Equal Opportunity, the Contractor shall, in good faith, cooperate
with the Department of Health and Human Services (Agency) in
investigations of Equal Employment Opportunity (EEO) complaints
processed pursuant to 29 CFR Part 1614. For purposes of this clause,
the following definitions apply:
(1) ``Complaint'' means a formal or informal complaint that has
been lodged with Agency management, Agency EEO officials, the Equal
Employment Opportunity Commission (EEOC), or a court of competent
jurisdiction.
(2) ``Contractor employee'' means all current Contractor
employees who work or worked under this contract. The term also
includes current employees of subcontractors who work or worked
under this contract. In the case of Contractor and subcontractor
employees, who worked under this contract, but who are no longer
employed by the Contractor or subcontractor, or who have been
assigned to another entity within the Contractor's or
subcontractor's organization, the Contractor shall provide the
Agency with that employee's last known mailing address, e-mail
address, and telephone number, if that employee has been identified
as a witness in an EEO complaint or investigation.
(3) ``Good faith cooperation'' cited in paragraph (a) includes,
but is not limited to, making Contractor employees available for:
(i) Formal and informal interviews by EEO counselors or other Agency
officials processing EEO complaints; (ii) formal or informal
interviews by EEO investigators charged with investigating
complaints of unlawful discrimination filed by Federal employees;
(iii) reviewing and signing appropriate affidavits or declarations
summarizing statements provided by such Contractor employees during
the course of EEO investigations; (iv) producing documents requested
by EEO counselors, EEO investigators, Agency employees, or the EEOC
in connection with a pending EEO complaint; and (v) preparing for
and providing testimony in hearings before the EEOC and U.S.
District Court.
(b) The Contractor shall include the provisions of this clause
in all subcontract solicitations and subcontracts awarded at any
tier under this contract.
(c) Failure on the part of the Contractor or its subcontractors
to comply with the terms of this clause may be grounds for the
Contracting Officer to terminate this contract for default.
(End of clause)
352.223-70 Safety and health.
As prescribed in 323.7002, the Contracting Officer shall insert the
following clause:
Safety and Health (January 2006)
(a) To help ensure the protection of the life and health of all
persons, and to help prevent damage to property, the Contractor
shall comply with all Federal, State, and local laws and regulations
applicable to the work being performed under this contract. These
laws are implemented or enforced by the Environmental Protection
Agency, Occupational Safety and Health Administration (OSHA) and
other regulatory/enforcement agencies at the Federal, State, and
local levels.
(1) In addition, the Contractor shall comply with the following
regulations when developing and implementing health and safety
operating procedures and practices for both personnel and facilities
involving the use or handling of hazardous materials and the conduct
of research, development, or test projects:
(i) 29 CFR 1910.1030, Bloodborne pathogens; 29 CFR 1910.1450,
Occupational exposure to hazardous chemicals in laboratories; and
other applicable occupational health and safety standards issued by
OSHA and included in 29 CFR Part 1910. These regulations are
available at http://www.osha.gov.
(ii) Nuclear Regulatory Commission Standards and Regulations,
pursuant to the Energy Reorganization Act of 1974 (42 U.S.C. 5801 et
seq.). The Contractor may obtain copies from the U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001.
(2) The following Government guidelines are recommended for
developing and implementing health and safety operating procedures
and practices for both personnel and facilities:
(i) Biosafety in Microbiological and Biomedical Laboratories,
CDC. This publication is available at http://www.cdc.gov/OD/ohs/biosfty/bmbl4/bmbl4toc.htm.
(ii) Prudent Practices for Safety in Laboratories (1995),
National Research Council, National Academy Press, 500 Fifth Street,
NW., Lockbox 285, Washington, DC 20055 (ISBN 0-309-05229-7). This
publication is available at http://www.nap.edu/catalog/4911.html.
(b) Further, the Contractor shall take or cause to be taken
additional safety measures as the Contracting Officer, in
conjunction with the Contracting Officer's Technical Representative
or other appropriate officials, determines to be reasonably
necessary. If compliance with these additional safety measures
results in an increase or decrease in the cost or time required for
performance of any part of work under this contract, the Contracting
Officer will make an equitable adjustment in accordance with the
applicable ``Changes'' clause set forth in this contract.
(c) The Contractor shall maintain an accurate record of, and
promptly report to the Contracting Officer, all accidents or
incidents resulting in the exposure of persons to toxic substances,
hazardous materials or hazardous operations; the injury or death of
any person; or damage to property incidental to work performed under
the contract and all violations for which the Contractor has been
cited by any Federal, State or local regulatory/enforcement agency.
The report shall include a copy of the notice of violation and the
findings of any inquiry or inspection, and an analysis addressing
the impact these violations may have on the work remaining to be
performed. The report shall also state the required action(s), if
any, to be taken to correct any violation(s) noted by the Federal,
State or local regulatory/enforcement agency and the time frame
allowed by the agency to accomplish the necessary corrective action.
(d) If the Contractor fails or refuses to comply with the
Federal, State or local regulatory/enforcement agency's directive(s)
regarding any violation(s) and prescribed corrective action(s), the
Contracting Officer may issue an order stopping all or part of the
work until satisfactory corrective action (as approved by the
Federal, State or local regulatory/enforcement agencies) has been
taken and documented to the Contracting Officer. No part of the time
lost due to any stop work order shall be subject to a claim for
extension of time or costs or damages by the Contractor.
(e) The Contractor shall insert the substance of this clause in
each subcontract involving toxic substances, hazardous materials, or
hazardous operations. The Contractor is responsible for the
compliance of its subcontractors with the provisions of this clause.
(End of clause)
352.224-70 Privacy Act.
As prescribed in 324.103(b)(2), the Contracting Officer shall
insert the following clause:
Privacy Act (January 2006)
This contract requires the Contractor to perform one or more of
the following: (a) Design; (b) develop; or (c) operate a Federal
agency system of records to accomplish an agency function in
accordance with the Privacy Act of 1974 (Act) (5 U.S.C. 552a(m)(1))
and applicable agency regulations. The term ``system of records''
means a group of any records under the control of any agency from
which information is retrieved by the name of the
[[Page 62456]]
individual or by some identifying number, symbol, or other
identifying particular assigned to the individual. Violations of the
Act by the Contractor and/or its employees may result in the
imposition of criminal penalties (5 U.S.C. 552a(i)). The Contractor
shall ensure that each of its employees knows the prescribed rules
of conduct and that each employee is aware that he/she is subject to
criminal penalties for violation of the Act to the same extent as
Department of Health and Human Services employees. These provisions
also apply to all subcontracts the Contractor awards under this
contract which require the design, development or operation of the
designated system(s) of records [5 U.S.C. 552a(m)(1)]. The contract
work statement: (a) identifies the system(s) of records and the
design, development, or operation work the Contractor is to perform;
and (b) specifies the disposition to be made of such records upon
completion of contract performance.
(End of clause)
352.227-70 Publications and publicity.
As prescribed in 327.404-70, the Contracting Officer shall insert
the following clause:
Publications and Publicity (January 2006)
(a) Unless otherwise specified in this contract, the Government
encourages the Contractor to publish the results of its work under
this contract. A copy of each article the Contractor submits for
publication shall be promptly sent to the Contracting Officer's
Technical Representative. The Contractor shall also inform the
Contracting Officer's Technical Representative when the article or
other publication is published, and furnish a copy of it as finally
published.
(b) Unless authorized by the Contracting Officer's Technical
Representative, the Contractor shall not display the HHS logo on any
publications.
(End of clause)
352.228-7 Insurance--liability to third persons.
As prescribed in 328.311-2, the Contracting Officer shall insert
the following clause and either Alternate I or II, as appropriate:
Insurance--Liability to Third Persons (Dec. 1991)
(a)(1) Except as provided in paragraph (a)(2) immediately
following, or in paragraph (h) of this clause [if the clause has a
paragraph (h)], the Contractor shall provide and maintain workers'
compensation, employer's liability, comprehensive general liability
(bodily injury), comprehensive automobile liability (bodily injury
and property damage) insurance, and such other insurance as the
Contracting Officer may require under this contract.
(2) The Contractor may, with the approval of the Contracting
Officer, maintain a self-insurance program; provided that, with
respect to workers' compensation, the Contractor is qualified
pursuant to statutory authority.
(3) All insurance required by this paragraph shall be in form
and amount and for those periods as the Contracting Officer may
require or approve and with insurers approved by the Contracting
Officer.
(b) The Contractor agrees to submit for the Contracting
Officer's approval, to the extent and in the manner required by the
Contracting Officer, any other insurance that is maintained by the
Contractor in connection with performance of this contract and for
which the Contractor seeks reimbursement.
(c) Except as provided in paragraph (h) of this clause [if the
clause has a paragraph (h)], the Contractor shall be reimbursed--
(1) For that portion of the reasonable cost of insurance
allocable to this contract, and required or approved under this
clause; and
(2) For certain liabilities (and expenses incidental to such
liabilities) to third persons not compensated by insurance or
otherwise within the funds available under the Limitation of Cost or
the Limitation of Funds clause of this contract. These liabilities
must arise out of the performance of this contract, whether or not
caused by the negligence of the Contractor or the Contractor's
agents, servants, or employees, and must be represented by final
judgments or settlements approved in writing by the Government.
These liabilities are for--
(i) Loss of or damage to property (other than property owned,
occupied, or used by the Contractor, rented to the Contractor, or in
the care, custody, or control of the Contractor); or
(ii) Death or bodily injury.
(d) The Government's liability under paragraph (c) of this
clause is limited to the amounts reflected in final judgments, or
settlements approved in writing by the Government, but in no event
to exceed the funds available under the Limitation of Cost or
Limitation of Funds clause of this contract. Nothing in this
contract shall be construed as implying that, at a later date, the
Government will request, or the Congress will appropriate, funds
sufficient to meet any deficiencies.
(e) The Government shall not reimburse the Contractor for
liabilities (and expenses incidental to such liabilities)--
(1) For which the Contractor is otherwise responsible under the
express terms of any clause specified in the Schedule or elsewhere
in the contract;
(2) For which the Contractor has failed to insure or to maintain
insurance as required by the Contracting Officer; or
(3) That result from willful misconduct or lack of good faith on
the part of the Contractor's directors, officers, managers,
superintendents, or other representatives who have supervision or
direction of --
(i) All or substantially all of the Contractor's business;
(ii) All or substantially all of the Contractor's operations at
any one plant or separate location in which this contract is being
performed; or
(iii) A separate and complete major industrial operation in
connection with the performance of this contract.
(f) The provisions of paragraph (e) of this clause shall not
restrict the right of the Contractor to be reimbursed for the cost
of insurance maintained by the Contractor in connection with the
performance of this contract, other than insurance required in
accordance with this clause; provided, that such cost is allowable
under the Allowable Cost and Payment clause of this contract.
(g) If any suit or action is filed or any claim is made against
the Contractor, the cost and expense of which may be reimbursable to
the Contractor under this contract, and the risk of which is then
uninsured or is insured for less than the amount claimed, the
Contractor shall--
(1) Immediately notify the Contracting Officer and promptly
furnish copies of all pertinent papers received;
(2) Authorize Government representatives to collaborate with
counsel for the insurance carrier in settling or defending the claim
when the amount of the liability claimed exceeds the amount of
coverage; and
(3) Authorize Government representatives to settle or defend the
claim and to represent the Contractor in or to take charge of any
litigation, if required by the Government, when the liability is not
insured or covered by the bond. The Contractor may, at its own
expense, be associated with the Government representatives in any
such claim or litigation.
(End of clause)
Alternate I (APR 1984). If the successful offeror represents in its
offer that it is partially immune from tort liability as a State
agency, the Contracting Officer shall add the following paragraph (h)
to the basic clause:
(h) Notwithstanding paragraphs (a) and (c) of this clause--
(1) The Government does not assume any liability to third
persons, nor will the Government reimburse the Contractor for its
liability to third persons, with respect to loss due to death,
bodily injury, or damage to property resulting in any way from the
performance of this contract or any subcontract under this contract;
and
(2) The Contractor need not provide or maintain insurance
coverage as required by paragraph (a) of this clause; provided, that
the Contractor may obtain any insurance coverage deemed necessary,
subject to approval by the Contracting Officer as to form, amount,
and duration. The Contractor shall be reimbursed for the cost of
such insurance and, to the extent provided in paragraph (c) of this
clause, for liabilities to third persons for which the Contractor
has obtained insurance coverage as provided in this paragraph, but
for which such coverage is insufficient in amount.
(End of clause)
Alternate II (APR 1984). If the successful offeror represents in
its offer that it is totally immune from tort liability as a State
agency, the Contracting Officer shall substitute the following
paragraphs (a) and (b) for paragraphs (a) and (b) of the basic clause:
(a) The Government does not assume any liability to third
persons, nor will the Government reimburse the Contractor for its
[[Page 62457]]
liability to third persons, with respect to loss due to death,
bodily injury, or damage to property resulting in any way from the
performance of this contract or any subcontract under this contract.
(b) If any suit or action is filed, or if any claim is made
against the Contractor, the cost and expense of which may be
reimbursable to the Contractor under this contract, the Contractor
shall immediately notify the Contracting Officer and promptly
furnish copies of all pertinent papers received by the Contractor.
The Contractor shall, if Government requires, authorize Government
representatives to settle or defend the claim and to represent the
Contractor in or take charge of any litigation. The Contractor may,
at its own expense, be associated with the Government
representatives in any such claims or litigation.
(End of clause)
352.231-70 Salary rate limitation.
As prescribed in 331.101-70, the Contracting Officer shall insert
the following clause:
Salary Rate Limitation (October 2009)
(a) Pursuant to the current and applicable prior HHS
appropriations acts, the Contractor shall not use contract funds to
pay the direct salary of an individual at a rate in excess of the
Federal Executive Schedule Level I in effect on the date an expense
is incurred.
(b) For purposes of the salary rate limitation, the terms
``direct salary,'' ``salary,'' and ``institutional base salary''
have the same meaning and are collectively referred to as ``direct
salary'' in this clause. An individual's direct salary is the annual
compensation that the Contractor pays for an individual's direct
effort (costs) under the contract. Direct salary excludes any income
that an individual may be permitted to earn outside of duties to the
Contractor. Direct salary also excludes fringe benefits, overhead,
and general and administrative expenses (also referred to as
indirect costs or facilities and administrative [F&A] costs).
Note: The salary rate limitation does not restrict the salary
that an organization may pay an individual working under an HHS
contract or order; it merely limits the portion of that salary that
may be paid with Federal funds.
(c) The salary rate limitation also applies to individuals under
subcontracts. If this is a multiple-year contract or order, it may
be subject to unilateral modification by the Contracting Officer to
ensure that an individual is not paid at a rate that exceeds the
salary rate limitation provision established in the HHS
appropriations act in effect when the expense is incurred regardless
of the rate initially used to establish contract or order funding.
(d) See the salaries and wages pay tables on the U.S. Office of
Personnel Management Web site for Federal Executive Schedule salary
levels that apply to the current and prior periods.
(End of clause)
352.231-71 Pricing of adjustments.
As prescribed in 331.102-70, the Contracting Officer shall insert
the following clause:
Pricing of Adjustments (January 2001)
When costs are a factor in determination of a contract price
adjustment pursuant to the ``Changes'' clause or any provision of
this contract, the applicable cost principles and procedures set
forth below shall form the basis for determining such costs:
------------------------------------------------------------------------
Principles Types of organizations
------------------------------------------------------------------------
(a) Subpart 31.2 of the Federal Commercial.
Acquisition Regulation.
(b) Subpart 31.3 of the Federal Educational.
Acquisition Regulation.
(c) Subpart 31.6 of the Federal State, local, and Federally
Acquisition Regulation. recognized
Indian Tribal governments.
(d) 45 CFR Part 74 Appendix E.......... Hospitals (performing research
and development contracts
only).
(e) Subpart 31.7 of the Federal Other nonprofit organizations.
Acquisition Regulation.
------------------------------------------------------------------------
(End of clause)
352.233-70 Choice of law (overseas).
As prescribed in 333.215-70(a), the Contracting Officer shall
insert the following clause:
Choice of Law (Overseas) (October 2009)
This contract shall be construed in accordance with the
substantive laws of the United States of America. By the execution
of this contract, the Contractor expressly agrees to waive any
rights to invoke the jurisdiction of local national courts where
this contract is performed and agrees to accept the exclusive
jurisdiction of the Civilian Board of Contract Appeals and the
United States Court of Federal Claims for hearing and determination
of any and all disputes that may arise under the Disputes clause of
this contract.
(End of clause)
352.233-71 Litigation and claims.
As prescribed in 333.215-70(b), the Contracting Officer shall
insert the following clause:
Litigation and Claims (January 2006)
(a) The Contractor shall provide written notification
immediately to the Contracting Officer of any action, including any
proceeding before an administrative agency, filed against the
Contractor arising out of the performance of this contract,
including, but not limited to the performance of any subcontract
hereunder; and any claim against the Contractor the cost and expense
of which is allowable under the clause entitled ``Allowable Cost and
Payment.''
(b) Except as otherwise directed by the Contracting Officer, the
Contractor shall furnish immediately to the Contracting Officer
copies of all pertinent papers received by the Contractor with
respect to such action or claim. To the extent not in conflict with
any applicable policy of insurance, the Contractor may, with the
Contracting Officer's approval, settle any such action or claim. If
required by the Contracting Officer, the Contractor shall effect an
assignment and subrogation in favor of the Government of all the
Contractor's rights and claims (except those against the Government)
arising out of any such action or claim against the Contractor; and
authorize representatives of the Government to settle or defend any
such action or claim and to represent the Contractor in, or to take
charge of, any action.
(c) If the Government undertakes a settlement or defense of an
action or claim, the Contractor shall furnish all reasonable
assistance in effecting a settlement or asserting a defense. Where
an action against the Contractor is not covered by a policy of
insurance, the Contractor shall, with the approval of the
Contracting Officer, proceed with the defense of the action in good
faith. The Government shall not be liable for the expense of
defending any action or for any costs resulting from the loss
thereof to the extent that the Contractor would have been
compensated by insurance which was required by law or regulation or
by written direction of the Contracting Officer, but which the
Contractor failed to secure through its own fault or negligence. In
any event, unless otherwise expressly provided in this contract, the
Government shall not reimburse or indemnify the Contractor for any
liability loss, cost, or expense, which the Contractor may incur or
be subject to by reason of any loss, injury or damage, to the person
or to real or personal property of any third parties as may accrue
during, or arise from, the performance of this contract.
(End of clause)
352.234-1 Notice of earned value management system--pre-award
Integrated Baseline Review.
As prescribed in 334.203-70(a), the Contracting Officer shall
insert the following provision:
Notice of Earned Value Management System--Pre-Award Integrated Baseline
Review (October 2008)
The offeror shall provide documentation that its proposed Earned
Value Management System (EVMS) complies with the EVMS guidelines in
ANSI/EIA Standard-748 (current version at time of solicitation).
[[Page 62458]]
(a) If the offeror proposes to use a system that currently does
not meet the requirements of paragraph (a) of this provision, the
offeror shall submit a comprehensive plan for compliance with the
guidelines.
(1) The plan shall--
(i) Describe the EVMS the offeror intends to use in performance
of the contract;
(ii) Distinguish between the offeror's existing management
system and modifications proposed to meet the guidelines;
(iii) Describe the management system and its application in
terms of the EVMS guidelines;
(iv) Describe the proposed procedure for application of the EVMS
requirements to subcontractors;
(v) Provide documentation describing the process and results,
including Government participation if applicable, of any third-party
evaluation or self-evaluation of the system's compliance with the
EVMS guidelines; and
(vi) Provide a schedule of events leading up to formal
validation and Government acceptance of the offeror's EVMS, if the
value of the offeror's proposal, including options, is $25 million
or more.
(2) The offeror shall provide information and assistance, as
required by the Contracting Officer, to support review of the plan.
(3) The Contracting Officer will review the offeror's EVMS
implementation plan prior to contract award.
(4) The offeror's EVMS plan must provide milestones indicating
when the offeror anticipates that the EVMS will be compliant with
the ANSI/EIS Standard-748 guidelines.
(b) The offeror shall identify in its offer the subcontractors,
or subcontracted effort if subcontractors have not been identified,
to which the requirements of EVMS will be applied. Prior to contract
award, the offeror and HHS shall agree on the subcontractors, or
subcontracted effort, subject to the EVMS requirement.
(c) HHS will conduct an Integrated Baseline Review (IBR) prior
to contract award. The offeror shall be compensated as set forth
elsewhere in this solicitation for its preparation for and
participation in the IBR.
(End of provision)
352.234-2 Notice of earned value management system--post-award
Integrated Baseline Review.
As prescribed in 334.203-70(b), the Contracting Officer shall
insert the following provision:
Notice of Earned Value Management System--Post-Award Integrated
Baseline Review (October 2008)
(a) The offeror shall provide documentation that its proposed
Earned Value Management System (EVMS) complies with the EVMS
guidelines in ANSI/EIA Standard-748 (current version in effect at
time of solicitation).
(b) If the offeror proposes to use a system that currently does
not meet the requirements of paragraph (a) of this provision, the
offeror shall submit a comprehensive plan for compliance with the
guidelines.
(1) The plan shall--
(i) Describe the EVMS the offeror intends to use in performance
of the contract;
(ii) Distinguish between the offeror's existing management
system and modifications proposed to meet the guidelines;
(iii) Describe the management system and its application in
terms of the EVMS guidelines;
(iv) Describe the proposed procedure for application of the EVMS
requirements to subcontractors;
(v) Provide documentation describing the process and results,
including Government participation if applicable, of any third-party
evaluation or self-evaluation of the system's compliance with the
EVMS guidelines; and
(vi) Provide a schedule of events leading up to formal
validation and Government acceptance of the offeror's EVMS, if the
value of the offeror's proposal, including options, is $25 million
or more.
(2) The offeror shall provide information and assistance, as
required by the Contracting Officer, to support review of the plan.
(3) The Contracting Officer will review the offeror's EVMS
implementation plan prior to contract award.
(4) The offeror's EVMS plan must provide milestones indicating
when the offeror anticipates that the EVM system will be compliant
with the ANSI/EIA Standard-748 guidelines.
(c) The offeror shall identify in its offer the subcontractors,
or subcontracted effort if subcontractors have not been identified,
to which the requirements of EVMS will be applied. Prior to contract
award, the offeror and HHS shall agree on the subcontractors, or
subcontracted effort, subject to the EVMS requirement.
(d) HHS will conduct an Integrated Baseline Review after
contract award.
(End of provision)
352.234-3 Full earned value management system.
As prescribed in 334.203-70(c), the Contracting Officer shall
insert the following clause:
Full Earned Value Management System (October 2008)
(a) The Contractor shall use an Earned Value Management System
(EVMS) that has been validated and accepted by the Cognizant Federal
Agency (CFA) as being compliant with the guidelines in ANSI/EIA
Standard-748 (current version at the time of award) to manage this
contract. If the Contractor's current EVMS has not been validated
and accepted by the CFA at the time of award, see paragraph (b) of
this clause. The Contractor shall submit EVM reports in accordance
with the requirements of this contract.
(b) If, at the time of award, the Contractor's EVM system has
not been validated and accepted by the CFA as complying with EVMS
guidelines in ANSI/EIA Standard-748 (current version at time of
award), the Contractor shall--
(1) Apply the current system to the contract; and
(2) Take necessary and timely actions to meet the milestones in
the Contractor's EVMS plan approved by the Contracting Officer.
(c) HHS requires the Contractor to obtain validation and
acceptance of its EVM system by the CFA during the base period of
performance of this contract. The Contracting Officer or designee
will conduct a Compliance Review to assess the Contractor's
compliance with its approved plan. If the Contractor does not follow
the approved implementation schedule or correct all resulting system
deficiencies noted during the Compliance Review within a reasonable
time, the Contracting Officer may take remedial action, which may
include, but is not limited to, suspension of or reduction in
progress payments, or a reduction in fee.
(d) HHS will conduct an Integrated Baseline Review (IBR). If a
pre-award IBR has not been conducted, a post-award IBR will be
conducted by HHS as early as practicable, but no later than 90 days
after contract award. The Contracting Officer may also require an
IBR as part of the exercise of an option or the incorporation of a
major modification.
(e) Unless a waiver is granted by the CFA, Contractor-proposed
EVMS changes require approval of the CFA prior to implementation.
The CFA will advise the Contractor of the acceptability of such
changes within 30 calendar days after receipt of the notice of
proposed changes from the Contractor. If the advance approval
requirements are waived by the CFA, the Contractor shall disclose
EVMS changes to the CFA at least 14 calendar days prior to the
effective date of implementation.
(f) The Contractor shall provide access to all pertinent records
and data requested by the Contracting Officer or a duly authorized
representative as necessary to permit Government surveillance to
ensure that the EVMS conforms, and continues to conform, with the
requirements referenced in paragraph (a) of this clause.
(g) The Contractor shall require the subcontractors specified
below to comply with the requirements of the clause: (Insert list of
applicable subcontractors.)
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(End of clause)
(Alternate I) (October 2008)
As prescribed in 334.203-70(c), the Contracting Officer shall
substitute the following paragraphs (a), (b), and (c) for paragraphs
(a), (b), and (c) of the basic clause and delete paragraph (e) of the
basic clause:
(a) The Contractor shall use an Earned Value Management System
(EVMS) that is compliant with the guidelines in ANSI/EIA Standard-
748 (current version at the time of award) to manage this contract.
If the Contractor's current EVMS is not compliant at the time of
award, see paragraph (b) of this clause. The Contractor shall submit
EVM reports in accordance with the requirements of this contract.
(b) If, at the time of award, the Contractor's EVM system is not
in compliance with the EVMS guidelines in ANSI/EIA Standard-748
(current version at time of award), the Contractor shall--
[[Page 62459]]
(1) Apply the current system to the contract; and
(2) Take necessary and timely actions to meet the milestones in
the Contractor's EVMS plan approved by the Contracting Officer.
(c) HHS will not formally validate or accept the Contractor's
EVMS with respect to this contract. The use of the Contractor's EVMS
for this contract does not imply HHS acceptance of the Contractor's
EVMS for application to future contracts. The Contracting Officer or
designee will conduct a Compliance Review to assess the Contractor's
compliance with its approved plan. If the Contractor does not follow
the approved implementation schedule or correct all resulting system
deficiencies noted during the Compliance Review within a reasonable
time, the Contracting Officer may take remedial action that may
include, but is not limited to, suspension of or reduction in
progress payments, or a reduction in fee.
352.234-4 Partial earned value management system.
As prescribed in 334.203-70(d), the Contracting Officer shall
insert the following clause:
Partial Earned Value Management System (October 2008)
(a) The Contractor shall use an Earned Value Management System
(EVMS) that has been validated and accepted by the Cognizant Federal
Agency (CFA) as being compliant with the schedule-related guidelines
in ANSI/EIA Standard-748 (current version at the time of award) to
manage this contract. If the Contractor's current EVMS has not been
validated and accepted by the CFA at the time of award, see
paragraph (b) of this clause. The Contractor shall submit EVM
reports in accordance with the requirements of this contract.
(b) If, at the time of award, the Contractor's EVM system has
not been validated and accepted by the CFA as complying with the
schedule-related EVMS guidelines in ANSI/EIA Standard-748 (current
version at time of award), the Contractor shall--
(1) Apply the current system to the contract; and
(2) Take necessary and timely actions to meet the milestones in
the Contractor's EVMS plan approved by the Contracting Officer.
(c) HHS requires the Contractor to obtain validation and
acceptance of the schedule-related portions of its EVM system by the
CFA during the base period of performance of this contract. The
Contracting Officer or designee will conduct a Compliance Review to
assess the Contractor's compliance with its approved plan. If the
Contractor does not follow the approved implementation schedule or
correct all resulting system deficiencies noted during the
Compliance Review within a reasonable time, the Contracting Officer
may take remedial action, which may include, but is not limited to,
suspension of or reduction in progress payments, or a reduction in
fee.
(d) HHS will conduct an Integrated Baseline Review (IBR). If a
pre-award IBR has not been conducted, a post-award IBR will be
conducted by HHS as early as practicable, but no later than 90 days
after contract award. The Contracting Officer may also require an
IBR as part of the exercise of an option or the incorporation of a
major modification.
(e) Unless a waiver is granted by the CFA, Contractor-proposed
EVMS changes require approval of the CFA prior to implementation.
The CFA will advise the Contractor of the acceptability of such
changes within 30 calendar days after receipt of the notice of
proposed changes from the Contractor. If the advance approval
requirements are waived by the CFA, the Contractor shall disclose
EVMS changes to the CFA at least 14 calendar days prior to the
effective date of implementation.
(f) The Contractor shall provide access to all pertinent records
and data requested by the Contracting Officer or a duly authorized
representative as necessary to permit Government surveillance to
ensure that the EVMS conforms, and continues to conform, with the
requirements referenced in paragraph (a) of this clause.
(g) The Contractor shall require the subcontractors specified
below to comply with the requirements of the clause: (Insert list of
applicable subcontractors.)
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(End of clause)
(Alternate I) (October 2008)
As prescribed in 334.203-70(d), the Contracting Officer shall
substitute the following paragraphs (a), (b), and (c) for paragraphs
(a), (b), and (c) of the basic clause and delete paragraph (e) of the
basic clause:
(a) The Contractor shall use an Earned Value Management System
(EVMS) that is compliant with the schedule-related guidelines in
ANSI/EIA Standard-748 (current version at the time of award) to
manage this contract. If the Contractor's current EVMS is not
compliant at the time of award, see paragraph (b) of this clause.
The Contractor shall submit EVM reports in accordance with the
requirements of this contract.
(b) If, at the time of award, the Contractor's schedule-related
EVM system is not in compliance with the schedule-related EVMS
guidelines in ANSI/EIA Standard-748 (current version at time of
award), or the Contractor does not have an existing schedule control
system that is compliant with such guidelines, the Contractor
shall--
(1) Apply the current system to the contract; and
(2) Take necessary and timely actions to meet the milestones in
the Contractor's EVMS plan approved by the Contracting Officer.
(c) HHS will not formally validate or accept the Contractor's
schedule-related EVMS with respect to this contract. The use of the
Contractor's EVMS for this contract does not imply HHS acceptance of
the Contractor's EVMS for application to future contracts. The
Contracting Officer or designee will conduct a Compliance Review to
assess the Contractor's compliance with its approved plan. If the
Contractor does not follow the approved implementation schedule or
correct all resulting system deficiencies noted during the
Compliance Review within a reasonable time, the Contracting Officer
may take remedial action that may include, but is not limited to,
suspension of or reduction in progress payments, or a reduction in
fee.
352.237-70 Pro-Children Act.
As prescribed in 337.103-70(a), the Contracting Officer shall
insert the following clause:
Pro-Children Act (January 2006)
(a) Public Law 103-227, Title X, Part C, also known as the Pro-
Children Act of 1994 (Act), 20 U.S.C. 7183, imposes restrictions on
smoking in facilities where certain Federally funded children's
services are provided. The Act prohibits smoking within any indoor
facility (or portion thereof), whether owned, leased, or contracted
for, that is used for the routine or regular provision of (i)
kindergarten, elementary, or secondary education or library services
or (ii) health or day care services that are provided to children
under the age of 18. The statutory prohibition also applies to
indoor facilities that are constructed, operated, or maintained with
Federal funds.
(b) By acceptance of this contract or order, the Contractor
agrees to comply with the requirements of the Act. The Act also
applies to all subcontracts awarded under this contract for the
specified children's services. Accordingly, the Contractor shall
ensure that each of its employees, and any subcontractor staff, is
made aware of, understand, and comply with the provisions of the
Act. Failure to comply with the Act may result in the imposition of
a civil monetary penalty in an amount not to exceed $1,000 for each
violation and/or the imposition of an administrative compliance
order on the responsible entity. Each day a violation continues
constitutes a separate violation.
(End of clause)
352.237-71 Crime Control Act--reporting of child abuse.
As prescribed in 337.103-70(b), the Contracting Officer shall
insert the following clause:
Crime Control Act of 1990--Reporting of Child Abuse (January 2006)
(a) Public Law 101-647, also known as the Crime Control Act of
1990 (Act), imposes responsibilities on certain individuals who,
while engaged in a professional capacity or activity, as defined in
the Act, on Federal land or in a Federally-operated (or contracted)
facility, learn of facts that give the individual reason to suspect
that a child has suffered an incident of child abuse.
(b) The Act designates ``covered professionals'' as those
persons engaged in professions and activities in eight different
categories including, but not limited to, physicians, dentists,
medical residents or interns, hospital personnel and administrators,
nurses, health care practitioners, chiropractors, osteopaths,
[[Page 62460]]
pharmacists, optometrists, podiatrists, emergency medical
technicians, ambulance drivers, alcohol or drug treatment personnel,
psychologists, psychiatrists, mental health professionals, child
care workers and administrators, and commercial film and photo
processors. The Act defines the term ``child abuse'' as the physical
or mental injury, sexual abuse or exploitation, or negligent
treatment of a child.
(c) Accordingly, any person engaged in a covered profession or
activity under an HHS contract or subcontract, regardless of the
purpose of the contract or subcontract, shall immediately report a
suspected child abuse incident in accordance with the provisions of
the Act. If a child is suspected of being harmed, the appropriate
State Child Abuse Hotline, local child protective services (CPS), or
law enforcement agency shall be contacted. For more information
about where and how to file a report, the Childhelp USA, National
Child Abuse Hotline (1-800-4-A-CHILD) shall be called. Any covered
professional failing to make a timely report of such incident shall
be guilty of a Class B misdemeanor.
(d) By acceptance of this contract or order, the Contractor
agrees to comply with the requirements of the Act. The Act also
applies to all applicable subcontracts awarded under this contract.
Accordingly, the Contractor shall ensure that each of its employees,
and any subcontractor staff, is made aware of, understand, and
comply with the provisions of the Act.
(End of clause)
352.237-72 Crime Control Act--requirement for background checks.
As prescribed in 337.103-70(c), the Contracting Officer shall
insert the following clause:
Crime Control Act of 1990--Requirement for Background Checks (January
2006)
(a) Public Law 101-647, also known as the Crime Control Act of
1990 (Act), requires that all individuals involved with the
provision of child care services to children under the age of 18
undergo a criminal background check. ``Child care services''
include, but are not limited to, social services, health and mental
health care, child (day) care, education (whether or not directly
involved in teaching), and rehabilitative programs. Any conviction
for a sex crime, an offense involving a child victim, or a drug
felony, may be grounds for denying employment or for dismissal of an
employee providing any of the services listed above.
(b) The Contracting Officer will provide the necessary
information to the Contractor regarding the process for obtaining
the background check. The Contractor may hire a staff person
provisionally prior to the completion of a background check, if at
all times prior to the receipt of the background check during which
children are in the care of the newly-hired person, the person is
within the sight and under the supervision of a previously
investigated staff person.
(c) By acceptance of this contract or order, the Contractor
agrees to comply with the requirements of the Act. The Act also
applies to all applicable subcontracts awarded under this contract.
Accordingly, the Contractor shall ensure that each of its employees,
and any subcontractor staff, is made aware of, understand, and
comply with the provisions of the Act.
(End of clause)
352.239-70 Standard for security configurations.
As prescribed in 339.101(d)(1), the Contracting Officer shall
insert the following clause:
Standard for Security Configurations (October 2009)
(a) The Contractor shall configure its computers that contain
HHS data with the applicable Federal Desktop Core Configuration
(FDCC) (see http://nvd.nist.gov/fdcc/index.cfm) and ensure that its
computers have and maintain the latest operating system patch level
and anti-virus software level.
Note: FDCC is applicable to all computing systems using Windows
XPTM and Windows VistaTM, including desktops
and laptops--regardless of function--but not including servers.
(b) The Contractor shall apply approved security configurations
to information technology (IT) that is used to process information
on behalf of HHS. The following security configuration requirements
apply:
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Note: The Contracting Officer shall specify applicable security
configuration requirements in solicitations and contracts based on
information provided by the Project Officer, who shall consult with
the OPDIV/STAFFDIV Chief Information Security Officer.
(c) The Contractor shall ensure IT applications operated on
behalf of HHS are fully functional and operate correctly on systems
configured in accordance with the above configuration requirements.
The Contractor shall use Security Content Automation Protocol
(SCAP)-validated tools with FDCC Scanner capability to ensure its
products operate correctly with FDCC configurations and do not alter
FDCC settings--see http://nvd.nist.gov/validation.cfm. The
Contractor shall test applicable product versions with all relevant
and current updates and patches installed. The Contractor shall
ensure currently supported versions of information technology
products meet the latest FDCC major version and subsequent major
versions.
(d) The Contractor shall ensure IT applications designed for end
users run in the standard user context without requiring elevated
administrative privileges.
(e) The Contractor shall ensure hardware and software
installation, operation, maintenance, update, and patching will not
alter the configuration settings or requirements specified above.
(f) The Contractor shall (1) include Federal Information
Processing Standard (FIPS) 201-compliant (see http://csrc.nist.gov/publications/fips/fips201-1/FIPS-201-1-chng1.pdf), Homeland Security
Presidential Directive 12 (HSPD-12) card readers with the purchase
of servers, desktops, and laptops; and (2) comply with FAR Subpart
4.13, Personal Identity Verification.
(g) The Contractor shall ensure that its subcontractors (at all
tiers) which perform work under this contract comply with the
requirements contained in this clause.
(End of clause)
352.239-71 Standard for encryption language.
As prescribed in 339.101(d)(2), the Contracting Officer shall
insert the following clause:
Standard for Encryption Language (October 2009)
(a) The Contractor shall use Federal Information Processing
Standard (FIPS) 140-2-compliant encryption (Security Requirements
for Cryptographic Module, as amended) to protect all instances of
HHS sensitive information during storage and transmission. (Note:
The Government has determined that HHS information under this
contract is considered ``sensitive'' in accordance with FIPS 199,
Standards for Security Categorization of Federal Information and
Information Systems, dated February 2004.)
(b) The Contractor shall verify that the selected encryption
product has been validated under the Cryptographic Module Validation
Program (see http://csrc.nist.gov/cryptval/) to confirm compliance
with FIPS 140-2 (as amended). The Contractor shall provide a written
copy of the validation documentation to the Contracting Officer and
the Contracting Officer's Technical Representative.
(c) The Contractor shall use the Key Management Key (see FIPS
201, Chapter 4, as amended) on the HHS personal identification
verification (PIV) card; or alternatively, the Contractor shall
establish and use a key recovery mechanism to ensure the ability for
authorized personnel to decrypt and recover all encrypted
information (see http://csrc.nist.gov/drivers/documents/ombencryption-guidance.pdf). The Contractor shall notify the
Contracting Officer and the Contracting Officer's Technical
Representative of personnel authorized to decrypt and recover all
encrypted information.
(d) The Contractor shall securely generate and manage encryption
keys to prevent unauthorized decryption of information in accordance
with FIPS 140-2 (as amended).
(e) The Contractor shall ensure that this standard is
incorporated into the Contractor's property management/control
system or establish a separate procedure to account for all laptop
computers, desktop computers, and other mobile devices and portable
media that store or process sensitive HHS information.
(f) The Contractor shall ensure that its subcontractors (at all
tiers) which perform work under this contract comply with the
requirements contained in this clause.
(End of clause)
[[Page 62461]]
352.239-72 Security requirements for Federal information technology
resources.
As prescribed in 339.7103, the Contracting Officer shall insert the
following clause:
Security Requirements for Federal Information Technology Resources
(October 2009)
(a) Applicability. This clause applies whether the entire
contract or order (hereafter ``contract''), or portion thereof,
includes information technology resources or services in which the
Contractor has physical or logical (electronic) access to, or
operates a Department of Health and Human Services (HHS) system
containing, information that directly supports HHS' mission. The
term ``information technology (IT)'', as used in this clause,
includes computers, ancillary equipment (including imaging
peripherals, input, output, and storage devices necessary for
security and surveillance), peripheral equipment designed to be
controlled by the central processing unit of a computer, software,
firmware and similar procedures, services (including support
services) and related resources. This clause does not apply to
national security systems as defined in FISMA.
(b) Contractor responsibilities. The Contractor is responsible
for the following:
(1) Protecting Federal information and Federal information
systems in order to ensure their--
(i) Integrity, which means guarding against improper information
modification or destruction, and includes ensuring information non-
repudiation and authenticity;
(ii) Confidentiality, which means preserving authorized
restrictions on access and disclosure, including means for
protecting personal privacy and proprietary information; and.
(iii) Availability, which means ensuring timely and reliable
access to and use of information.
(2) Providing security of any Contractor systems, and
information contained therein, connected to an HHS network or
operated by the Contractor, regardless of location, on behalf of
HHS.
(3) Adopting, and implementing, at a minimum, the policies,
procedures, controls, and standards of the HHS Information Security
Program to ensure the integrity, confidentiality, and availability
of Federal information and Federal information systems for which the
Contractor is responsible under this contract or to which it may
otherwise have access under this contract. The HHS Information
Security Program is outlined in the HHS Information Security Program
Policy, which is available on the HHS Office of the Chief
Information Officer's (OCIO) Web site.
(c) Contractor security deliverables. In accordance with the
timeframes specified, the Contractor shall prepare and submit the
following security documents to the Contracting Officer for review,
comment, and acceptance:
(1) IT Security Plan (IT-SP)--due within 30 days after contract
award. The IT-SP shall be consistent with, and further detail the
approach to, IT security contained in the Contractor's bid or
proposal that resulted in the award of this contract. The IT-SP
shall describe the processes and procedures that the Contractor will
follow to ensure appropriate security of IT resources that are
developed, processed, or used under this contract. If the IT-SP only
applies to a portion of the contract, the Contractor shall specify
those parts of the contract to which the IT-SP applies.
(i) The Contractor's IT-SP shall comply with applicable Federal
laws that include, but are not limited to, the Federal Information
Security Management Act (FISMA) of 2002 (Title III of the E-
Government Act of 2002, Public Law 107-347), and the following
Federal and HHS policies and procedures:
(A) Office of Management and Budget (OMB) Circular A-130,
Management of Federal Information Resources, Appendix III, Security
of Federal Automated Information Resources.
(B) National Institute of Standards and Technology (NIST)
Special Publication (SP) 800-18, Guide for Developing Security Plans
for Federal Information Systems, in form and content, and with any
pertinent contract Statement of Work/Performance Work Statement
(SOW/PWS) requirements. The IT-SP shall identify and document
appropriate IT security controls consistent with the sensitivity of
the information and the requirements of Federal Information
Processing Standard (FIPS) 200, Recommended Security Controls for
Federal Information Systems. The Contractor shall review and update
the IT-SP in accordance with NIST SP 800-26, Security Self-
Assessment Guide for Information Technology Systems and FIPS 200, on
an annual basis.
(C) HHS-OCIO Information Systems Security and Privacy Policy.
(ii) After resolution of any comments provided by the Government
on the draft IT-SP, the Contracting Officer shall accept the IT-SP
and incorporate the Contractor's final version into the contract for
Contractor implementation and maintenance. On an annual basis, the
Contractor shall provide to the Contracting Officer verification
that the IT-SP remains valid.
(2) IT Risk Assessment (IT-RA)--due within 30 days after
contract award. The IT-RA shall be consistent, in form and content,
with NIST SP 800-30, Risk Management Guide for Information
Technology Systems, and any additions or augmentations described in
the HHS-OCIO Information Systems Security and Privacy Policy. After
resolution of any comments provided by the Government on the draft
IT-RA, the Contracting Officer shall accept the IT-RA and
incorporate the Contractor's final version into the contract for
Contractor implementation and maintenance. The Contractor shall
update the IT-RA on an annual basis.
(3) FIPS 199 Standards for Security Categorization of Federal
Information and Information Systems Assessment (FIPS 199
Assessment)--due within 30 days after contract award. The FIPS 199
Assessment shall be consistent with the cited NIST standard. After
resolution of any comments by the Government on the draft FIPS 199
Assessment, the Contracting Officer shall accept the FIPS 199
Assessment and incorporate the Contractor's final version into the
contract.
(4) IT Security Certification and Accreditation (IT-SC&A)--due
within 3 months after contract award. The Contractor shall submit
written proof to the Contracting Officer that an IT-SC&A was
performed for applicable information systems--see paragraph (a) of
this clause. The Contractor shall perform the IT-SC&A in accordance
with the HHS Chief Information Security Officer's Certification and
Accreditation Checklist; NIST SP 800-37, Guide for the Security
Certification and Accreditation of Federal Information Systems; and
NIST SP 800-53, Recommended Security Controls for Federal
Information Systems. An authorized senior management official shall
sign the draft IT-SC&A and provide it to the Contracting Officer for
review, comment, and acceptance.
(i) After resolution of any comments provided by the Government
on the draft IT-SC&A, the Contracting Officer shall accept the IT-
SC&A and incorporate the Contractor's final version into the
contract as a compliance requirement.
(ii) The Contractor shall also perform an annual security
control assessment and provide to the Contracting Officer
verification that the IT-SC&A remains valid. Evidence of a valid
system accreditation includes written results of:
(A) Annual testing of the system contingency plan; and
(B) The performance of security control testing and evaluation.
(d) Personal identity verification. The Contractor shall
identify its employees with access to systems operated by the
Contractor for HHS or connected to HHS systems and networks. The
Contracting Officer's Technical Representative (COTR) shall
identify, for those identified employees, position sensitivity
levels that are commensurate with the responsibilities and risks
associated with their assigned positions. The Contractor shall
comply with the HSPD-12 requirements contained in ``HHS-Controlled
Facilities and Information Systems Security'' requirements specified
in the SOW/PWS of this contract.
(e) Contractor and subcontractor employee training. The
Contractor shall ensure that its employees, and those of its
subcontractors, performing under this contract complete HHS-
furnished initial and refresher security and privacy education and
awareness training before being granted access to systems operated
by the Contractor on behalf of HHS or access to HHS systems and
networks. The Contractor shall provide documentation to the COTR
evidencing that Contractor employees have completed the required
training.
(f) Government access for IT inspection. The Contractor shall
afford the Government access to the Contractor's and subcontractors'
facilities, installations, operations, documentation, databases, and
personnel used in performance of this contract to the extent
required to carry out a program of IT
[[Page 62462]]
inspection (to include vulnerability testing), investigation, and
audit to safeguard against threats and hazards to the integrity,
confidentiality, and availability, of HHS data or to the protection
of information systems operated on behalf of HHS.
(g) Subcontracts. The Contractor shall incorporate the substance
of this clause in all subcontracts that require protection of
Federal information and Federal information systems as described in
paragraph (a) of this clause, including those subcontracts that--
(1) Have physical or electronic access to HHS' computer systems,
networks, or IT infrastructure; or
(2) Use information systems to generate, store, process, or
exchange data with HHS or on behalf of HHS, regardless of whether
the data resides on a HHS or the Contractor's information system.
(h) Contractor employment notice. The Contractor shall
immediately notify the Contracting Officer when an employee either
begins or terminates employment (or is no longer assigned to the HHS
project under this contract), if that employee has, or had, access
to HHS information systems or data.
(i) Document information. The Contractor shall contact the
Contracting Officer for any documents, information, or forms
necessary to comply with the requirements of this clause.
(j) Contractor responsibilities upon physical completion of the
contract. The Contractor shall return all HHS information and IT
resources provided to the Contractor during contract performance and
certify that all HHS information has been purged from Contractor-
owned systems used in contract performance.
(k) Failure to comply. Failure on the part of the Contractor or
its subcontractors to comply with the terms of this clause shall be
grounds for the Contracting Officer to terminate this contract.
(End of clause)
352.239-73 Electronic information and technology accessibility.
(a) As prescribed in 339.201-70(a), the Contracting Officer shall
insert the following provision:
Electronic and Information Technology Accessibility (October 2009)
(a) Section 508 of the Rehabilitation Act of 1973 (29 U.S.C.
794d), as amended by the Workforce Investment Act of 1998, and the
Architectural and Transportation Barriers Compliance Board
Electronic and Information (EIT) Accessibility Standards (36 CFR
Part 1194), require that, unless an exception applies, all EIT
products and services developed, acquired, maintained, or used by
any Federal department or agency permit--
(1) Federal employees with disabilities to have access to and
use information and data that is comparable to the access and use of
information and data by Federal employees who are not individuals
with disabilities; and
(2) Members of the public with disabilities seeking information
or services from a Federal agency to have access to and use of
information and data that is comparable to the access and use of
information and data by members of the public who are not
individuals with disabilities.
(b) Accordingly, any vendor submitting a proposal/quotation/bid
in response to this solicitation must demonstrate compliance with
the established EIT accessibility standards. Information about
Section 508 is available at http://www.section508.gov/. The complete
text of Section 508 Final Provisions can be accessed at http://www.access-board.gov/sec508/provisions.htm.
(c) The Section 508 accessibility standards applicable to this
solicitation are identified in the Statement of Work/Specification/
Performance Work Statement. In order to facilitate the Government's
evaluation to determine whether EIT products and services proposed
meet applicable Section 508 accessibility standards, offerors must
prepare an HHS Section 508 Product Assessment Template, in
accordance with its completion instructions, and provide a binding
statement of conformance. The purpose of the template is to assist
HHS acquisition and program officials in determining that EIT
products and services proposed support applicable Section 508
accessibility standards. The template allows vendors or developers
to self-evaluate their products or services and document in detail
how they do or do not conform to a specific Section 508
accessibility standard. Instructions for preparing the HHS Section
508 Evaluation Template may be found under Section 508 policy on the
HHS Office on Disability Web site (http://www.hhs.gov/od).
(d) Respondents to this solicitation must also provide any
additional detailed information necessary for determining applicable
Section 508 accessibility standards conformance, as well as for
documenting EIT products or services that are incidental to the
project, which would constitute an exception to Section 508
requirements. If a vendor claims its products or services, including
EIT deliverables such as electronic documents and reports, meet
applicable Section 508 accessibility standards in its completed HHS
Section 508 Product Assessment Template, and it is later determined
by the Government--i.e., after award of a contract/order, that
products or services delivered do not conform to the described
accessibility standards in the Product Assessment Template,
remediation of the products or services to the level of conformance
specified in the vendor's Product Assessment Template will be the
responsibility of the Contractor and at its expense.
(End of provision)
(b) As prescribed in 339.201-70(b), the Contracting Officer shall
insert the following clause:
Electronic and Information Technology Accessibility (October 2009)
(a) Pursuant to Section 508 of the Rehabilitation Act of 1973
(29 U.S.C. 794d), as amended by the Workforce Investment Act of
1998, all electronic and information technology (EIT) products and
services developed, acquired, maintained, or used under this
contract/order must comply with the ``Electronic and Information
Technology Accessibility Provisions'' set forth by the Architectural
and Transportation Barriers Compliance Board (also referred to as
the ``Access Board'') in 36 CFR part 1194. Information about Section
508 is available at http://www.section508.gov/. The complete text of
Section 508 Final Provisions can be accessed at http://www.access-board.gov/sec508/provisions.htm.
(b) The Section 508 accessibility standards applicable to this
contract/order are identified in the Statement of Work/
Specification/Performance Work Statement. The Contractor must
provide a written Section 508 conformance certification due at the
end of each contract/order exceeding $100,000 when the contract/
order duration is one year or less. If it is determined by the
Government that EIT products and services provided by the Contractor
do not conform to the described accessibility standards in the
Product Assessment Template, remediation of the products or services
to the level of conformance specified in the Contractor's Product
Assessment Template will be the responsibility of the Contractor at
its own expense.
(c) In the event of a modification(s) to this contract/order,
which adds new EIT products or services or revises the type of, or
specifications for, products or services the Contractor is to
provide, including EIT deliverables such as electronic documents and
reports, the Contracting Officer may require that the contractor
submit a completed HHS Section 508 Product Assessment Template to
assist the Government in determining that the EIT products or
services support Section 508 accessibility standards. Instructions
for documenting accessibility via the HHS Section 508 Product
Assessment Template may be found under Section 508 policy on the HHS
Office on Disability Web site (http://www.hhs.gov/od).
(c) As prescribed in 339.201-70(c), the Contracting Officer shall
add the following paragraph to the end of clause 352.239-73(b):
Prior to the Contracting Officer exercising an option for a
subsequent performance period/additional quantity or adding funding
for a subsequent performance period under this contract, as
applicable, the Contractor must provide a Section 508 Annual Report
to the Contracting Officer and Project Officer. Unless otherwise
directed by the Contracting Officer in writing, the Contractor shall
provide the cited report in accordance with the following schedule.
Instructions for completing the report are available in the Section
508 policy on the HHS Office on Disability Web site under the
heading Vendor Information and Documents. The Contractor's failure
to submit a timely and properly completed report may jeopardize the
Contracting Officer's exercising an option or adding funding, as
applicable.
Schedule for Contractor Submission of Section 508 Annual Report
(To be completed by the Contracting Officer at time of contract/
order award.)
[[Page 62463]]
352.242-70 Key personnel.
As prescribed in 342.302(c)(2), the Contracting Officer shall
insert the following clause:
Key Personnel (January 2006)
The key personnel specified in this contract are considered to
be essential to work performance. At least 30 days prior to
diverting any of the specified individuals to other programs or
contracts (or as soon as possible, if an individual must be
replaced, for example, as a result of leaving the employ of the
Contractor), the Contractor shall notify the Contracting Officer and
shall submit comprehensive justification for the diversion or
replacement request (including proposed substitutions for key
personnel) to permit evaluation by the Government of the impact on
performance under this contract. The Contractor shall not divert or
otherwise replace any key personnel without the written consent of
the Contracting Officer. The Government may modify the contract to
add or delete key personnel at the request of the contractor or
Government.
(End of clause)
352.242-71 Tobacco-free facilities.
As prescribed in 342.302(c)(3), the Contracting Officer shall
insert the following clause:
Tobacco-free Facilities (January 2006)
In accordance with Department of Health and Human Services (HHS)
policy, the Contractor and its staff are prohibited from using
tobacco products of any kind (e.g., cigarettes, cigars, pipes, and
smokeless tobacco) while on any HHS property, including use in
personal or company vehicles operated by Contractor employees while
on an HHS property. This policy also applies to all subcontracts
awarded under the contract or order. The term ``HHS properties''
includes all properties owned, controlled and/or leased by HHS when
totally occupied by HHS, including all indoor and outdoor areas of
such properties. Where HHS only partially occupies such properties,
it includes all HHS-occupied interior space. Where HHS leases space
in a multi-occupant building or complex, the tobacco-free HHS policy
will apply to the maximum area permitted by both law and current
lease agreements. The Contractor shall ensure that each of its
employees, and any subcontractor staff, is made aware of,
understand, and comply with this policy.
(End of clause)
352.242-72 Native American Graves Protection and Repatriation Act.
As prescribed in 342.302(c)(4), the Contracting Officer shall
insert the following clause:
Native American Graves Protection and Repatriation Act (January 2006)
(a) Public Law 101-601, dated November 16, 1990, also known as
the Native American Graves Protection and Repatriation Act (Act),
imposes certain responsibilities on individuals and organizations
when they discover Native American cultural items (including human
remains) on Federal or Tribal lands.
(b) In the event the Contractor discovers Native American
cultural items (including human remains, associated funerary
objects, unassociated funerary objects, sacred objects and cultural
patrimony), as defined in the Act during contract performance, the
Contractor shall--
(i) Immediately cease activity in the area of the discovery;
(ii) Notify the Contracting Officer of the discovery; and
(iii) Make a reasonable effort to protect the items discovered
before resuming such activity. Upon receipt of the Contractor's
discovery notice, the Contracting Officer will notify the
appropriate authorities as required by the Act.
(c) Unless otherwise specified by the Contracting Officer, the
Contractor may resume activity in the area on the 31st calendar day
following the date that the appropriate authorities certify receipt
of the discovery notice. The Contracting Officer shall provide to
the Contractor the date that the appropriate authorities certify
receipt of the discovery notice and the date on which the Contractor
may resume activities.
(End of clause)
352.242-73 Withholding of contract payments.
As prescribed in 342.7003-1(a), the Contracting Officer shall
insert the following clause:
Withholding of Contract Payments (January 2006)
Notwithstanding any other payment provisions of this contract,
failure of the Contractor to submit required reports when due or
failure to perform or deliver required work, supplies, or services,
may result in the withholding of payments under this contract unless
such failure arises out of causes beyond the control, and without
the fault or negligence of the Contractor as defined by the clause
entitled ``Excusable Delays'' or ``Default,'' as applicable. The
Government will immediately notify the Contractor of its intention
to withhold payment of any invoice or voucher submitted.
(End of clause)
352.242-74 Final decisions on audit findings.
As prescribed in 342.7003-1(b), the Contracting Officer shall
insert the following clause:
Final Decisions on Audit Findings (April 1984)
For the purpose of issuing final decisions under the Disputes
clause of this contract concerning monetary audit findings, the
Contracting Officer is the individual authorized to make such
decisions.
(End of clause)
352.270-1 Accessibility of meetings, conferences, and seminars to
persons with disabilities.
As prescribed in 370.102, the Contracting Officer shall insert the
following clause:
Accessibility of Meetings, Conferences, and Seminars to Persons With
Disabilities (January 2001)
The Contractor agrees as follows:
(a) Planning. The Contractor shall develop a plan to assure that
any meeting, conference, or seminar held pursuant to this contract
will meet or exceed the minimum accessibility standards set forth in
28 CFR 36.101-36.500 and Appendix A: ADA Accessibility Guidelines
(ADAAG). The Contractor shall submit the plan to the Contracting
Officer's Technical Representative for approval prior to initiating
action. (The Contractor may submit a consolidated or master plan for
contracts requiring numerous meetings, conferences, or seminars in
lieu of separate plans.)
(b) Facilities. Any facility the Contractor intends to utilize
for meetings, conferences, or seminars in performance of this
contract shall be in compliance with 28 CFR 36.101-36.500 and
Appendix A. The Contractor shall determine, by an on-site
inspection, that the facility meets these requirements. (1) Parking.
Parking shall be in compliance with 228 CFR 36.101-36.500 and
Appendix A.
(2) Entrances. Entrances shall be in compliance with 28 CFR
36.101-36.500 and Appendix A.
(3) Meeting Rooms. Meeting rooms, including seating
arrangements, shall be in compliance with 28 CFR 36.101-36.500 and
Appendix A. In addition, stages, speaker platforms, etc. which are
to be used by persons in wheelchairs must be accessible by ramps or
lifts. When used, the ramp may not necessarily be independently
negotiable if space does not permit. However, the Contracting
Officer's Technical Representative must approve any slope over 1:12,
and the Contractor must provide assistance to negotiate access to
the stage or platform.
(4) Restrooms. Restrooms shall be in compliance with 28 CFR
36.101-36.500 and Appendix A.
(5) Eating Facilities. Eating facilities in the meeting facility
must also comply with 28 CFR 36.101-36.500 and Appendix A.
(6) Overnight Facilities. If overnight accommodations are
required, the facility providing the overnight accommodations shall
also comply with 28 CFR 36.101-36.500 and Appendix A.
(7) Water Fountains. Water fountains shall comply with 28 CFR
36.101-36.500 and Appendix A.
(8) Telephones. Public telephones shall comply with 28 CFR
36.101-36.500 and Appendix A.
(c) Provisions of Services for Attendees with Sensory
Impairments.
(1) The Contractor, in planning the meeting, conference, or
seminar, shall include in all announcements and other materials
pertaining to the meeting, conference, or seminar a notice
indicating that services will be made available to persons with
sensory impairments attending the meeting, if requested within five
(5) days of the date of the meeting, conference, or seminar. The
announcement(s) and other material(s) shall indicate that persons
with sensory impairments may contact a specific person(s), at a
specific address and phone
[[Page 62464]]
number(s), to make their service requirements known. The phone
number(s) shall include a telecommunication device for the deaf
(TDD).
(2) The Contractor shall provide, at no additional cost to the
individual, those services required by persons with sensory
impairments to ensure their complete participation in the meeting,
conference, or seminar.
(3) At a minimum, when requested in advance, the Contractor
shall provide the following services:
(i) For persons with hearing impairments, qualified
interpreters. Also, the meeting rooms shall be adequately
illuminated so signing by interpreters can be easily seen.
(ii) For persons with vision impairments, readers and/or
cassette materials, as necessary, to enable full participation.
Also, meeting rooms shall be adequately illuminated.
(iii) Agenda and other conference material(s) shall be
translated into a usable form for persons with sensory impairments.
Readers, Braille translations, large print text, and/or tape
recordings are all acceptable. These materials shall be available to
individuals with sensory impairments upon their arrival.
(4) The Contractor shall make a reasonable effort to ascertain
the number of individuals with sensory impairments who plan to
attend the meeting, conference, or seminar. However, if the
Contractor can determine that there will be no person with sensory
impairment in attendance, the provision of those services under
paragraph (c) of this clause for the non-represented group, or
groups, is not required.
(End of clause)
352.270-2 Indian preference.
As prescribed in 370.202(a), the Contracting Officer shall insert
the following clause:
Indian Preference (April 1984)
(a) The Contractor agrees to give preference in employment
opportunities under this contract to Indians who can perform
required work, regardless of age (subject to existing laws and
regulations), sex, religion, or Tribal affiliation. To the extent
feasible and consistent with the efficient performance of this
contract, the Contractor further agrees to give preference in
employment and training opportunities under this contract to Indians
who are not fully qualified to perform regardless of age (subject to
existing laws and regulations), sex, religion, or Tribal
affiliation. The Contractor also agrees to give preference to Indian
organizations and Indian-owned economic enterprises in the awarding
of any subcontracts to the extent feasible and consistent with the
efficient performance of this contract. The Contractor shall
maintain statistical records as are necessary to indicate compliance
with this paragraph.
(b) In connection with the Indian employment preference
requirements of this clause, the Contractor shall provide
opportunities for training incident to such employment. Such
training shall include on-the-job, classroom or apprenticeship
training which is designed to increase the vocational effectiveness
of an Indian employee.
(c) If the Contractor is unable to fill its employment and
training opportunities after giving full consideration to Indians as
required by this clause, the Contractor may satisfy those needs by
selecting persons other than Indians in accordance with the clause
of this contract entitled ``Equal Opportunity.''
(d) If no Indian organizations or Indian-owned economic
enterprises are available under reasonable terms and conditions,
including price, for awarding of subcontracts in connection with the
work performed under this contract, the Contractor agrees to comply
with the provisions of this contract involving utilization of small
businesses; HUBZone small businesses; service-disabled, veteran-
owned small businesses; 8(a) small businesses; veteran-owned small
businesses; women-owned small businesses; or small disadvantaged
businesses.
(e) As used in this clause,
(1) ``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 to provide evidence
within 30 days from the Tribe concerned that the person is a member
of the Tribe.
(2) ``Indian Tribe'' means an Indian Tribe, pueblo, band,
nation, or other organized group or community, including 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 is recognized as eligible for the
special programs and services provided by the United States to
Indians because of their status as Indians.
(3) ``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).
(4) ``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 that ownership shall encompass active operation and
control of the enterprise.
(f) The Contractor agrees to include the provisions of this
clause, including this paragraph (f) of this clause, in each
subcontract awarded at any tier under this contract.
(g) In the event of noncompliance with this clause, the
Contracting Officer may terminate the contract in whole or in part
or may impose any other sanctions authorized by law or by other
provisions of the contract.
(End of clause)
352.270-3 Indian preference program.
As prescribed in 370.202(b), the Contracting Officer shall insert
the following clause:
Indian Preference Program (January 2006)
(a) In addition to the requirements of the clause of this
contract entitled ``Indian Preference,'' the Contractor agrees to
establish and conduct an Indian preference program which will expand
opportunities for Indians to receive preference for employment and
training in connection with the work to be performed under this
contract, and which will expand the opportunities for Indian
organizations and Indian-owned economic enterprises to receive a
preference in the awarding of subcontracts. In this connection, the
Contractor shall perform the following:
(1) Designate a liaison officer who will maintain liaison with
the Government and the Tribe(s) on Indian preference matters;
supervise compliance with the provisions of this clause; and
administer the Contractor's Indian preference program.
(2) Advise its recruitment sources in writing and include a
statement in all advertisements for employment that Indian
applicants will be given preference in employment and training
incident to such employment.
(3) Not more than 20 calendar days after award of the contract,
post a written notice in the Tribal office of any reservations on
which or near where the work under this contract is to be performed
that sets forth the Contractor's employment needs and related
training opportunities. The notice shall include the approximate
numbers and types of employees needed; the approximate dates of
employment; the experience or special skills required for
employment, if any; training opportunities available; and other
pertinent information necessary to advise prospective employees of
any other employment requirements. The Contractor shall also request
the Tribe(s) on or near whose reservation(s) the work is to be
performed to provide assistance to the Contractor in filling its
employment needs and training opportunities. The Contracting Officer
will advise the Contractor of the name, location, and phone number
of the Tribal officials to contact in regard to the posting of
notices and requests for Tribal assistance.
(4) Establish and conduct a subcontracting program which gives
preference to Indian organizations and Indian-owned economic
enterprises as subcontractors and suppliers under this contract. The
Contractor shall give public notice of existing subcontracting
opportunities and, to the extent feasible and consistent with the
efficient performance of this contract, shall solicit bids or
proposals only from Indian organizations or Indian-owned economic
enterprises. The Contractor shall request assistance and information
on Indian firms qualified as suppliers or subcontractors from the
Tribe(s) on or near whose reservation(s) the work under the contract
is to be performed. The Contracting Officer will advise the
Contractor of the name, location, and phone number of the Tribal
officials to be contacted in regard to the request for assistance
and information. Public notices and solicitations for existing
subcontracting opportunities shall provide an equitable opportunity
for Indian firms to submit bids or proposals by including--
(i) A clear description of the supplies or services required,
including quantities, specifications, and delivery schedules which
facilitate the participation of Indian firms;
[[Page 62465]]
(ii) A statement indicating that preference will be given to
Indian organizations and Indian-owned economic enterprises in
accordance with section 7(b) of Public Law 93-638 [88 Stat. 2205; 25
U.S.C. 450e(b)];
(iii) Definitions for the terms ``Indian organization'' and
``Indian-owned economic enterprise'' as prescribed under the
``Indian Preference'' clause of this contract;
(iv) A statement to be completed by the bidder or offeror that
it is an Indian organization or Indian-owned economic enterprise;
and
(v) A closing date for receipt of bids or proposals which
provides sufficient time for preparation and submission of a bid or
proposal. If after soliciting bids or proposals from Indian
organizations and Indian-owned economic enterprises, no responsive
bid or acceptable proposal is received, the Contractor shall comply
with the requirements of paragraph (d) of the ``Indian Preference''
clause of this contract. If one or more responsible bids or
acceptable proposals are received, award shall be made to the low
responsible bidder or acceptable offeror if the price is determined
to be reasonable. If the low responsive bid or acceptable proposal
is determined to be unreasonable as to price, the Contractor shall
attempt to negotiate a reasonable price and award a subcontract. If
a reasonable price cannot be agreed upon, the Contractor shall
comply with the requirements of paragraph (d) of the ``Indian
Preference'' clause of this contract.
(5) Maintain written records under this contract which
indicate--
(i) The numbers of Indians seeking employment for each
employment position available under this contract;
(ii) The number and types of positions filled by Indians and
non-Indians;
(iii) The total number of Indians employed under this contract;
(iv) For those positions where there are both Indian and non-
Indian applicants, and a non-Indian is selected for employment, the
reason(s) why the Indian applicant was not selected;
(v) Actions taken to give preference to Indian organizations and
Indian-owned economic enterprises for subcontracting opportunities
which exist under this contract;
(vi) Reasons why preference was not given to Indian firms as
subcontractors or suppliers for each requirement where it was
determined by the Contractor that such preference would not be
consistent with the efficient performance of the contract; and
(vii) The number of Indian organizations and Indian-owned
economic enterprises contacted, and the number receiving subcontract
awards under this contract.
(6) Submit to the Contracting Officer for approval a quarterly
report which summarizes the Contractor's Indian preference program
and indicates the number and types of available positions filled by
Indians and non-Indians, and the dollar amounts of all subcontracts
awarded to Indian organizations and Indian-owned economic
enterprises, and to all other firms.
(7) Maintain records pursuant to this clause and keep them
available for review by the Government for one year after final
payment under this contract, or for such longer period as may be
required by any other clause of this contract or by applicable law
or regulation.
(b) For purposes of this clause, the following definitions of
terms shall apply:
(1) The terms ``Indian,'' ``Indian Tribe,'' ``Indian
Organization,'' and ``Indian-owned economic enterprise'' are defined
in the clause of this contract entitled ``Indian Preference.''
(2) ``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.)
(3) ``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 be
expected to commute to and from in the course of a work day.
(c) Nothing in the requirements of this clause shall be
interpreted to preclude Indian Tribes from independently developing
and enforcing their own Indian preference requirements. Such
requirements must not conflict with any Federal statutory or
regulatory requirement dealing with the award and administration of
contracts.
(d) The Contractor agrees to include the provisions of this
clause, including this paragraph (d), in each subcontract awarded at
any tier under this contract and to notify the Contracting Officer
of such subcontracts.
(e) In the event of noncompliance with this clause, the
Contracting Officer may terminate the contract in whole or in part
or may impose any other sanctions authorized by law or by other
provisions of the contract.
(End of clause)
352.270-4 Protection of human subjects.
(a) As prescribed in 370.303(a), the Contracting Officer shall
insert the following provision:
Notice to Offerors of Requirements of 45 CFR Part 46, Protection of
Human Subjects (January 2006)
(a) Copies of the Department of Health and Human Services (HHS)
regulations for the protection of human subjects, 45 CFR Part 46,
are available from the Office for Human Research Protections (OHRP),
Bethesda, Maryland 20892. The regulations provide a systematic
means, based on established ethical principles, to safeguard the
rights and welfare of individuals who participate as subjects in
research activities supported or conducted by HHS.
(b) The regulations define a human subject as a living
individual about whom an investigator (whether professional or
student) conducting research obtains data through intervention or
interaction with the individual, or identifiable private
information. The regulations extend to the use of human organs,
tissue, and body fluids from individually identifiable human
subjects as well as to graphic, written, or recorded information
derived from individually identifiable human subjects. The use of
autopsy materials is governed by applicable State and local law and
is not directly regulated by 45 CFR Part 46.
(c) Activities in which the only involvement of human subjects
will be in one or more of the categories set forth in 45 CFR
46.101(b)(1-6) are exempt from coverage.
(d) Inappropriate designations of the noninvolvement of human
subjects or of exempt categories of research in a project may result
in delays in the review of a proposal. The Government's Project
Officer will make a final determination of whether the proposed
activities are covered by the regulations or are in an exempt
category, based on the information provided in the proposal. In
doubtful cases, the Project Officer will consult with OHRP.
(e) In accordance with 45 CFR Part 46, offerors being considered
for award shall file with OHRP an acceptable Assurance of Compliance
with the regulations, specifying review procedures and assigning
responsibilities for the protection of human subjects. The initial
and continuing review of a research project by an institutional
review board shall ensure that: the rights and welfare of the human
subjects involved are adequately protected; the risks to the
subjects are reasonable in relation to both the potential benefits,
if any, to the subjects and the importance of the knowledge to be
gained; and informed consent will be obtained by methods that are
adequate and appropriate. HHS regulations for the protection of
human subjects (45 CFR Part 46), information regarding OHRP
registration and assurance requirements/processes, and OHRP contact
information can be accessed at the OHRP Web site (at http://www.hhs.gov/ohrp/).
(f) Offerors may consult with OHRP for advice or guidance
concerning either regulatory requirements or ethical issues
pertaining to research involving human subjects.
(End of provision)
(b) As prescribed in 370.304(a), the Contracting Officer shall
insert the following clause:
Protection of Human Subjects (January 2006)
(a) The Contractor agrees that the rights and welfare of human
subjects involved in research under this contract shall be protected
in accordance with 45 CFR Part 46 and with the Contractor's current
Assurance of Compliance on file with the Office for Human Research
Protections (OHRP), Department of Health and Human Services. The
Contractor further agrees to provide certification at least annually
that the Institutional Review Board has reviewed and approved the
procedures, which involve human subjects in accordance with 45 CFR
Part 46 and the Assurance of Compliance.
(b) The Contractor shall bear full responsibility for the
performance of all work and services involving the use of human
subjects under this contract and shall ensure that work is conducted
in a proper manner and as safely as is feasible. The parties hereto
agree that the Contractor retains the right to control and direct
the performance of all
[[Page 62466]]
work under this contract. The Contractor shall not deem anything in
this contract to constitute the Contractor or any subcontractor,
agent or employee of the Contractor, or any other person,
organization, institution, or group of any kind whatsoever, as the
agent or employee of the Government. The Contractor agrees that it
has entered into this contract and will discharge its obligations,
duties, and undertakings and the work pursuant thereto, whether
requiring professional judgment or otherwise, as an independent
contractor without imputing liability on the part of the Government
for the acts of the Contractor or its employees.
(c) If at any time during the performance of this contract, the
Contracting Officer determines, in consultation with OHRP that the
Contractor is not in compliance with any of the requirements and/or
standards stated in paragraphs (a) and (b) above, the Contracting
Officer may immediately suspend, in whole or in part, work and
further payments under this contract until the Contractor corrects
the noncompliance. The Contracting Officer may communicate the
notice of suspension by telephone with confirmation in writing. If
the Contractor fails to complete corrective action within the period
of time designated in the Contracting Officer's written notice of
suspension, the Contracting Officer may, after consultation with
OHRP, terminate this contract in whole or in part, and the
Contractor's name may be removed from the list of those contractors
with approved Human Subject Assurances.
(End of clause)
352.270-5 Care of laboratory animals.
(a) As prescribed in 370.403(a), the Contracting Officer shall
insert the following provision:
Notice to Offerors of Requirement for Compliance With the Public Health
Service Policy on Humane Care and Use of Laboratory Animals (January
2006)
The Public Health Service (PHS) Policy on Humane Care and Use of
Laboratory Animals (PHS Policy) establishes a number of requirements
for research activities involving animals. Before award may be made
to an applicant organization, the organization shall file, with the
Office of Laboratory Animal Welfare (OLAW), National Institutes of
Health (NIH), a written Animal Welfare Assurance (Assurance) which
commits the organization to comply with the provisions of the PHS
Policy, the Animal Welfare Act, and the Guide for the Care and Use
of Laboratory Animals (National Academy Press, Washington, DC). In
accordance with the PHS Policy, applicant organizations must
establish an Institutional Animal Care & Use Committee (IACUC),
qualified through the experience and expertise of its members, to
oversee the institution's animal program, facilities and procedures.
Applicant organizations are required to provide verification of
IACUC approval prior to release of an award involving live
vertebrate animals. No award involving the use of animals shall be
made unless OLAW approves the Assurance and verification of IACUC
approval for the proposed animal activities has been provided to the
Contracting Officer. Prior to award, the Contracting Officer will
notify Contractor(s) selected for projects that involve live
vertebrate animals that an Assurance and verification of IACUC
approval are required. The Contracting Officer will request that
OLAW negotiate an acceptable Assurance with those Contractor(s) and
request verification of IACUC approval. For further information,
contact OLAW at NIH, 6705 Rockledge Drive, RKL1, Suite 360, MSC 7982
Bethesda, Maryland 20892-7982 (E-mail: [email protected]; Phone: 301-
496-7163).
(End of provision)
(b) As prescribed in 370.404, the Contracting Officer shall insert
the following clause:
Care of Live Vertebrate Animals (October 2009)
(a) Before undertaking performance of any contract involving
animal-related activities where the species is regulated by USDA,
the Contractor shall register with the Secretary of Agriculture of
the United States in accordance with 7 U.S.C. 2136 and 9 CFR
sections 2.25 through 2.28. The Contractor shall furnish evidence of
the registration to the Contracting Officer.
(b) The Contractor shall acquire vertebrate animals used in
research from a dealer licensed by the Secretary of Agriculture
under 7 U.S.C. 2133 and 9 CFR Sections 2.1-2.11, or from a source
that is exempt from licensing under those sections.
(c) The Contractor agrees that the care, use and intended use of
any live vertebrate animals in the performance of this contract
shall conform with the Public Health Service (PHS) Policy on Humane
Care of Use of Laboratory Animals (PHS Policy), the current Animal
Welfare Assurance (Assurance), the Guide for the Care and Use of
Laboratory Animals (National Academy Press, Washington, DC) and the
pertinent laws and regulations of the United States Department of
Agriculture (see 7 U.S.C. 2131 et seq. and 9 CFR Subchapter A, Parts
1-4). In case of conflict between standards, the more stringent
standard shall govern.
(d) If at any time during performance of this contract, the
Contracting Officer determines, in consultation with the Office of
Laboratory Animal Welfare (OLAW), National Institutes of Health
(NIH), that the Contractor is not in compliance with any of the
requirements and standards stated in paragraphs (a) through (c)
above, the Contracting Officer may immediately suspend, in whole or
in part, work and further payments under this contract until the
Contractor corrects the noncompliance. Notice of the suspension may
be communicated by telephone and confirmed in writing. If the
Contractor fails to complete corrective action within the period of
time designated in the Contracting Officer's written notice of
suspension, the Contracting Officer may, in consultation with OLAW,
NIH, terminate this contract in whole or in part, and the
Contractor's name may be removed from the list of those contractors
with approved Assurances.
Note: The Contractor may request registration of its facility
and a current listing of licensed dealers from the Regional Office
of the Animal and Plant Health Inspection Service (APHIS), USDA, for
the region in which its research facility is located. The location
of the appropriate APHIS Regional Office, as well as information
concerning this program may be obtained by contacting the Animal
Care Staff, USDA/APHIS, 4700 River Road, Riverdale, Maryland 20737
(E-mail: [email protected]; Web site: (http://www.aphis.usda.gov/animal_welfare).
(End of clause)
352.270-6 Restriction on use of human subjects.
As prescribed in 370-304(b), the Contracting Officer shall insert
the following clause:
Restriction on Use of Human Subjects (January 2006)
Pursuant to 45 CFR part 46, Protection of Human Research
Subjects, the Contractor shall not expend funds under this award for
research involving human subjects or engage in any human subjects
research activity prior to the Contracting Officer's receipt of a
certification that the research has been reviewed and approved by
the Institutional Review Board (IRB) designated under the
Contractor's Federal-wide assurance of compliance. This restriction
applies to all collaborating sites, whether domestic or foreign, and
subcontractors. The Contractor must ensure compliance by
collaborators and subcontractors.
(End of clause)
352.270-7 Conference sponsorship request and conference materials
disclaimer.
As prescribed in 370.602, the Contracting Officer shall insert the
following clause:
Conference Sponsorship Request and Conference Materials Disclaimer
(October 2009)
(a) If HHS is not the sole provider of funding under this
conference contract, then prior to the Contractor claiming HHS
conference sponsorship, the Contractor shall submit a written
request (including rationale) to the Contracting Officer for
permission to claim such HHS sponsorship.
(b) Whether or not HHS is the conference sponsor, the Contractor
shall include the following statement on conference materials,
including promotional materials, agendas, and Web sites:
``This conference was funded, in whole or in part, through a
contract (insert contract number) with the Department of Health and
Human Services (HHS) (insert name of OPDIV/STAFFDIV). The views
expressed in written conference materials and by speakers and
moderators at this conference, do not necessarily reflect the
official policies of HHS, nor does mention of trade names,
commercial practices, or organizations imply endorsement by the U.S.
Government.''
(c) Unless authorized by the Contracting Officer's Technical
Representative, the Contractor shall not display the HHS logo on any
conference materials.
(End of clause)
[[Page 62467]]
352.270-8 Prostitution and related activities.
As prescribed in 370.701, the Contracting Officer shall insert the
following clause:
Prostitution and Related Activities (October 2009)
(a) The U.S. Government is opposed to prostitution and related
activities, which are inherently harmful and dehumanizing and
contribute to the phenomenon of trafficking in persons.
(b) Neither the Contractor nor any subcontractor(s) shall use
Government funds provided under this contract to promote or advocate
the legalization or practice of prostitution or sex trafficking.
(Note: The term ``contract'' includes ``order'' wherever it appears
in this clause.) The Contractor shall not construe anything in the
preceding sentence to preclude providing individuals with palliative
care, treatment, or post-exposure pharmaceutical prophylaxis, and
necessary pharmaceuticals and commodities, including test kits,
condoms, and, when proven effective, microbicides.
(c) The Government does not require the Contractor to endorse or
utilize a multisectoral approach to combating HIV/AIDS, or endorse,
utilize, or participate in a prevention method or treatment program
to which it has a religious or moral objection. Any information the
Contractor provides about the use of condoms as part of projects or
activities that are funded in connection with this contract shall be
medically accurate and shall include the public health benefits and
failure rates of such use.
(d) In addition, the Contractor shall have a policy explicitly
opposing prostitution and sex trafficking. The preceding sentence
shall not apply to any ``exempt organizations'' (i.e., the Global
Fund to Fight AIDS, Tuberculosis and Malaria; the World Health
Organization; the International AIDS Vaccine Initiative; and any
United Nations agency), or to any contractors that are awarded
``specified types of commercial contracts'' as set forth below.
(e) The following definitions apply for purposes of this clause:
(1) ``Commercial sex act'' means any sex act on account of which
anything of value is given to or received by any person.
(2) ``Prostitution'' means procuring or providing any commercial
sex act.
(3) ``Sex trafficking'' means the recruitment, harboring,
transportation, provision, or obtaining of a person for the purpose
of a commercial sex act [22 U.S.C. 7102(9)].
(4) ``Specified types of commercial contracts'' means contracts
awarded for commercial items and services as defined in Federal
Acquisition Regulation (FAR) 2.101, such as pharmaceuticals, medical
supplies, logistics support, data management, and freight
forwarding. Notwithstanding the preceding definition of ``specified
types of commercial contracts,'' contracts for the purposes
specified in paragraphs (e)(4)(i) through (iii) of this clause, that
are awarded to implement HIV/AIDS programs, require that the
Contractor have a policy explicitly opposing prostitution and sex
trafficking--
(i) Supplies or services provided directly to the final
populations receiving such supplies or services in host countries;
(ii) Technical assistance and training furnished directly to
host country individuals or entities for the provision of supplies
or services to the final populations receiving such supplies and
services; or
(iii) The types of services listed in FAR 37.203(b)(1)-(6) that
involve giving advice about substantive policies of a recipient,
giving advice regarding the activities referenced in paragraphs
(e)(4)(i) and (ii) of this clause, or making decisions or
functioning in a recipient's chain of command (e.g., providing
managerial or supervisory services; approving financial
transactions, personnel actions, etc.).
(f) The Contractor must have and maintain ``objective integrity
and independence'' from any organization that engages in activities
inconsistent with a policy opposing prostitution and sex
trafficking. HHS will consider the Contractor to have objective
integrity and independence from such an organization if the--
(1) Organization is a legally separate entity;
(2) Organization receives no transfer of Leadership Act funds,
and Leadership Act funds do not subsidize activities inconsistent
with a policy opposing prostitution and sex trafficking; and
(3) Contractor is physically and financially separate from the
organization. Mere bookkeeping separation of Leadership Act funds
from other funds is not sufficient. HHS will determine, on a case-
by-case basis, and based on the totality of the facts, whether
sufficient physical and financial separation exists. The presence or
absence of any one factor below will not be determinative. Factors
relevant to this determination shall include, but not be limited to,
the following:
(i) The existence of separate personnel, management, and
governance.
(ii) The existence of separate accounts, accounting records, and
timekeeping records.
(iii) The degree of separation from facilities, equipment, and
supplies used by the organization to conduct activities inconsistent
with a policy opposing prostitution and sex trafficking, and the
extent of such activities by the organization.
(iv) The extent to which--
(A) Signs and other forms of identification that distinguish the
Contractor from the organization are present, and
(B) Signs and materials that could be associated with the
organization or activities inconsistent with a policy opposing
prostitution and sex trafficking are absent.
(v) The extent to which the U.S. Government, HHS, and the
project name are protected from public association with an
organization and its activities that are inconsistent with a policy
opposing prostitution and sex trafficking in materials, such as
publications, conferences, and press or public statements.
(g) The Contractor shall include, as express terms and
conditions, the applicable provisions of this clause in all
subcontract solicitations and subcontracts awarded under this
contract. The Contractor agrees that HHS may, at any reasonable
time, inspect the documents and materials the Contractor maintains
or prepares in the usual course of its operations that relate to the
Contractor's compliance with this clause.
(h) As a prerequisite to award and payment of any Government
funds under this contract, the Contractor shall certify compliance
with this clause for the performance period funded by the contract.
The Contractor shall provide the three following compliance
certifications in a written statement addressed to the Contracting
Officer:
(1) Organizational Integrity Certification:
``I certify that (insert Contractor's name), which will be the
recipient of Government funds made available through this contract,
has objective integrity and independence from any organization that
engages in activities inconsistent with a policy opposing
prostitution and sex trafficking.''
(2) Subcontractor Compliance Certification:
``I certify that (insert Contractor's name) will include the
Organizational Integrity certification in any subcontract awarded
under this contract and will require such subcontractor to provide
the same certification that the Contractor provided.''
(3) Acknowledgment Certification:
``I certify that (insert Contractor's name) acknowledges that
these certifications are a prerequisite to receipt of Government
funds in connection with this contract, and that any violation of
these certifications by the Contractor or subcontractor(s) at any
level shall be grounds for termination of the contract by HHS in
accordance with the Federal Acquisition Regulation, Part 49, as well
as any other remedies provided by law.''
Note: In the case of existing contracts, the Contracting Officer
shall add the certification requirements whenever the contract is
modified to extend the period of performance or add funds, including
any options that may be exercised. In so doing, the Contracting
Officer shall delete in paragraph (h) the language ``As a
prerequisite to award and payment of any Government funds under this
contract,'' and replace it with: ``As a prerequisite to continuation
of this contract and payment of any Government funds under it,''.
(i) A person(s) authorized to bind the Contractor and any
subcontractor(s) shall execute the certifications. The Contractor
shall provide its certifications to the Contracting Officer. A
subcontractor(s) shall provide its certifications to the Contractor.
The Contracting Officer may request that the Contractor provide any
subcontractor certifications. In addition, the Contractor and any
subcontractors shall provide renewed certifications for any
modification that extends the contract period of performance or adds
funds to the contract, including any options that may be exercised.
(j) This clause does not affect the applicability of the FAR
clause at 52.222-50 entitled, ``Combating Trafficking in Persons.''
(End of clause)
352.270-9 Non-discrimination for conscience.
As prescribed in 370.702, the Contracting Officer shall insert the
following provision:
[[Page 62468]]
Non-discrimination for Conscience (October 2009)
(a) Section 301(d) of the United States Leadership Against HIV/
AIDS, Tuberculosis, and Malaria Act, as amended, provides that an
organization, including a faith-based organization, that is
otherwise eligible to receive assistance under section 104A of the
Foreign Assistance Act of 1961, under the United States Leadership
Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, under the
Tom Lantos and Henry J. Hyde United States Global Leadership Against
HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008, or
under any amendment to the foregoing Acts for HIV/AIDS prevention,
treatment, or care--
(1) Shall not be required, as a condition of receiving such
assistance, to--
(i) Endorse or utilize a multisectoral or comprehensive approach
to combating HIV/AIDS; or
(ii) Endorse, utilize, make a referral to, become integrated
with, or otherwise participate in any program or activity to which
the organization has a religious or moral objection.
(2) Shall not be discriminated against under the provisions of
law in subparagraph (a) for refusing to meet any requirement
described in paragraph (a)(1) in this solicitation.
(b) Accordingly, an offeror who believes this solicitation
contains work requirements that would require it to endorse or
utilize a multisectoral or comprehensive approach to combating HIV/
AIDS, or to endorse, utilize, make referral to, become integrated
with, or otherwise participate in a program or activity to which it
has a religious or moral objection, shall identify those work
requirements it has excluded in its technical proposal.
(c) The Government acknowledges that an offeror has specific
rights, as cited in paragraph (b) of this provision, to exclude
certain work requirements in this solicitation from its proposal.
However, the Government reserves the right to not make an award to
an offeror whose proposal does not comply with the salient work
requirements of the solicitation. Any exercise of that Government
right will be made by the Head of the Contracting Activity.
(End of provision)
PART 353--FORMS
Subpart 353.3--Illustrations of Forms
Sec.
353.370-674 Form HHS 674, Structured Approach Profit/Fee Objective.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 353.3--Illustrations of Forms
353.370-674 Form HHS 674, Structured Approach Profit/Fee Objective.
This form is available from local cost advisory personnel or PSC.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
SUBCHAPTERS I THROUGH L [RESERVED]
PARTS 354 THROUGH 369 [RESERVED]
SUBCHAPTER M--HHS SUPPLEMENTATIONS
PART 370--SPECIAL PROGRAMS AFFECTING ACQUISITION
Subpart 370.1--Accessibility of Meetings, Conferences, and Seminars to
Persons With Disabilities
Sec.
370.101 Policy.
370.102 Responsibilities.
Subpart 370.2--Indian Preference in Employment, Training, and
Subcontracting Opportunities
370.201 Statutory requirements.
370.202 Applicability.
370.203 Definitions.
370.204 Compliance enforcement.
370.205 Tribal preference requirements.
Subpart 370.3--Acquisitions Involving Human Subjects
370.300 Scope of subpart.
370.301 Policy.
370.302 Types of assurances.
370.303 Notice to offerors.
370.304 Contract clauses.
Subpart 370.4--Acquisitions Involving the Use of Laboratory Animals
370.400 Scope of subpart.
370.401 Policy.
370.402 Assurances.
370.403 Notice to offerors.
370.404 Contract clause.
Subpart 370.5--Acquisitions Under the Buy Indian Act
370.500 Scope of subpart.
370.501 Policy.
370.502 Definitions.
370.503 Requirements.
370.504 Competition.
370.505 Responsibility determinations.
Subpart 370.6--Conference Funding and Sponsorship
370.600 Policy.
370.601 Funding and sponsorship.
370.602 Contract clause.
Subpart 370.7--Acquisitions under the Leadership Act
370.700 Scope of subpart.
370.701 Contract clause.
370.702 Solicitation provision.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 370.1--Accessibility of Meetings, Conferences, and Seminars
to Persons With Disabilities
370.101 Policy.
(a) It is HHS policy that all meetings, conferences, and seminars
be accessible to persons with disabilities. For the purpose of this
policy, accessibility is defined as both physical access to meeting,
conference, and seminar sites, and aids and services to enable
individuals with sensory disabilities to fully participate in meetings,
conferences, and seminars.
(b) In regard to acquisition, the policy is applicable to all
contracts where the SOW/PWS requires the contractor to conduct
meetings, conferences, or seminars that are open to the public or
involve HHS personnel, but not to ad hoc meetings that may be necessary
or incidental to contract performance.
370.102 Responsibilities.
(a) The Contracting Officer shall insert the clause in 352.270-1,
Accessibility of Meetings, Conferences, and Seminars to Persons with
Disabilities, in solicitations, contracts, and orders when the SOW/PWS
requires the contractor to conduct meetings, conferences, or seminars
in accordance with 370.101(b).
(b) The COTR shall obtain, review, and approve the contractor's
plan, which is to be submitted in response to paragraph (a) of the
contract clause in 352.270-1. A consolidated or master plan for
contracts requiring numerous meetings, conferences, or seminars is
acceptable. The COTR, prior to approving the plan, shall consult with
the OPDIV or other designated organization responsible for monitoring
compliance with the Architectural Barriers Act of 1968 and the
Americans with Disabilities Act of 1990, to ensure that the
contractor's plan meets the accessibility requirements of the contract
clause. The COTR shall request the responsible organization to review,
and determine the adequacy of, the contractor's plan, and respond to
the COTR, in writing, within 10 working days of receiving the request
from the COTR.
Subpart 370.2--Indian Preference in Employment, Training, and
Subcontracting Opportunities
370.201 Statutory requirements.
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),
requires:
``Any contract, subcontract, grant, or subgrant pursuant to this
Act, 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 require that to the
greatest extent feasible:
(1) Preferences and opportunities for training and employment in
connection with the administration of such
[[Page 62469]]
contracts or grants shall be given to Indians; and
(2) Preference in the award of subcontracts and subgrants in
connection with the administration of such contracts or grants shall be
given to Indian organizations and to Indian-owned economic enterprises
as defined in section 3 of the Indian Financing Act of 1974 (88 Stat.
77).''
370.202 Applicability.
The Indian Preference clause set forth in 352.270-2 and the Indian
Preference Program clause set forth in 352.270-3 implement section 7(b)
of Public Law 93-638 for all HHS activities. Contracting activities
shall use the clauses as follows, except that solicitations issued and
contracts awarded pursuant to Title I of Public Law 93-638 (25 U.S.C.
450 et seq.) are exempted:
(a) The Contracting Officer shall insert the clause in 352.270-2,
Indian Preference, in solicitations, contracts, and orders when--
(1) The award is (or will be) made pursuant to an act specifically
authorizing such awards with Indian organizations; or
(2) The work to be performed 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 in 352.270-3,
Indian Preference Program, in solicitations, contracts, and orders
when--
(1) The dollar amount of the acquisition is expected to equal or
exceed $50,000 for nonconstruction work or $100,000 for construction
work;
(2) The Indian Preference clause is included in the solicitation,
contract, or order; 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 $50,000 or $100,000
level for nonconstruction or construction contracts, respectively, but
which meet the requirements of paragraphs (b)(2) and (3) of this
section 370.202, and, in the opinion of the Contracting Officer, offer
substantial opportunities for Indian employment, training, and
subcontracting.
370.203 Definitions.
For purposes of this Subpart 370.2, 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 to 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 is recognized as eligible for the special programs
and services provided by the United States to Indians because of their
status as Indians.
(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 be expected to
commute to and from in the course of a work day.
370.204 Compliance enforcement.
(a) The contracting activity shall conduct periodic reviews to
ensure contractor compliance with the requirements of the clauses in
352.270-2 and 352.270-3. The Indian Tribe(s) concerned may assist in
the conduct of these reviews.
(b) The Contracting Officer shall promptly investigate and resolve
complaints of noncompliance with the requirements of the clauses in
352.270-2 and 352.270-3 that are filed in writing with the contracting
activity.
370.205 Tribal preference requirements.
(a) When the contractor will perform work under a contract on an
Indian reservation, the Contracting Officer may supplement the clause
in 352.270-3 by adding specific Indian preference requirements of the
Tribe on whose reservation the work is to be performed. 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 OGC-GLD, 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 in
352.270-3 shall also be part of the solicitation and clearly
identified, to ensure uniform understanding of the additional
requirements by all prospective bidders or offerors.
(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 370.2, and shall not
conflict with any Federal statutory or regulatory requirement
concerning the award and administration of contracts.
Subpart 370.3--Acquisitions Involving Human Subjects
370.300 Scope of subpart.
This subpart applies to all R & D activities involving human
subjects conducted under contract--see 45 CFR 46.102(d) and (f).
370.301 Policy.
It is HHS policy that the Contracting Officer shall not award a
contract involving human subjects until a prospective contractor has
provided acceptable assurance that the activity will be subject to
initial and continuing review by an appropriate Institutional Review
Board (IRB) as described in HHS regulations at 45 CFR 46.103. The
Contracting Officer shall require an applicable Federal-wide assurance
(FWA), approved by the HHS Office for Human Research Protections
(OHRP), of each contractor, subcontractor, or cooperating institution
having responsibility for human subjects involved in performance of a
contract. OHRP is responsible for negotiating assurances covering all
HHS-supported or HHS-conducted activities involving human subjects.
OHRP shall provide
[[Page 62470]]
guidance to Contracting Officers regarding non-award or termination of
a contract due to inadequate assurance or breach of assurance for
protection of human subjects.
370.302 Types of assurances.
(a) If an institution does not currently hold an FWA, it should
submit one. An FWA listed in OHRP's current ``List of Registered
Institutional Review Boards (IRBs)/Independent Ethics Committees (IECs)
and Approved Assurances'' is acceptable for the purposes of this
policy.
(b) The OHRP Web site includes links to instructions and the forms
for submitting both a domestic and international FWA at: http://www.hhs.gov/ohrp/assurances/assurances_index.html. To expedite
approval of a FWA, as well as any update/renewal, the institution shall
use the OHRP Electronic Submission System. Once the institution
``submits'' an electronic file to OHRP, the institution must fax or
mail (but not both) a copy of the signature page to initiate the review
process. The institution shall mail the FWA to the OHRP, U.S.
Department of Health and Human Services, 1101 Wootton Parkway, Suite
200, Rockville, Maryland 20852, or fax it to OHRP at 240-453-8202 (but
not both).
370.303 Notice to offerors.
(a) The Contracting Officer shall insert the provision in 352.270-
4(a), Notice to Offerors of Requirements of 45 CFR Part 46, Protection
of Human Subjects, in solicitations that involve human subjects.
(b) Institutions having an OHRP-approved FWA shall certify IRB
approval of submitted proposals in the manner required by instructions
for completion of the contract proposal; by completion of an OMB Form
No. 0990-0263, ``Protection of Human Subjects Assurance Identification/
IRB Certification/Declaration of Exemption (Common Rule); or by letter
indicating the institution's OHRP-assigned FWA number, the date of IRB
review and approval, and the type of review (convened or expedited).
The date of IRB approval must not be more than 12 months prior to the
deadline for proposal submission.
(c) The Contracting Officer generally will not request FWAs for
contractors, subcontractors, or cooperating institutions prior to
determination that a contract proposal has been selected for
negotiation. When a contractor submits an FWA, it provides
certification for the initial contract period. No additional
documentation is required. If the contract provides for additional
years to complete the project, the contractor shall certify the
noncompetitive renewal proposal in the manner described in the
preceding paragraph.
370.304 Contract clauses.
(a) The Contracting Officer shall insert the clause in 352.270-
4(b), Protection of Human Subjects, in solicitations, contracts, and
orders that involve human subjects.
(b) The Contracting Officer shall insert the clause in 352.270-6,
Restriction on Use of Human Subjects, in contracts and orders if the
contractor has an approved Federal-wide assurance of compliance in
place, but cannot certify prior to award that the research has been
reviewed and approved by the IRB designated under the contractor's
Federal-wide assurance of compliance, because definite plans for
involvement of human subjects are not set forth in the proposal (e.g.,
projects in which human subjects' involvement will depend upon
completion of instruments, prior animal studies, or purification of
compounds). Under these conditions, the Contracting Officer may make
the award without the requisite certification, as long as the
Contracting Officer includes appropriate conditions in the contract or
order.
Subpart 370.4--Acquisitions Involving the Use of Laboratory Animals
370.400 Scope of subpart.
This subpart applies to all R & D, research training, and
biological testing activities involving live vertebrate animals
conducted under contract (see Public Health Service Policy on Humane
Care and Use of Laboratory Animals (PHS Policy), Rev. 1986, Repr.
1996).
370.401 Policy.
(a) It is HHS policy that contracting activities shall not award a
contract involving live vertebrate animals until the contractor has
given acceptable assurance that the work under the contract will be
subject to initial and continuing review by an appropriate
Institutional Animal Care and Use Committee (IACUC) as described in the
PHS Policy at IV.B.6. and 7. The Contracting Officer shall require an
applicable Full Animal Welfare Assurance or Inter-institutional
Agreement/Assurance, approved by the Office of Laboratory Animal
Welfare (OLAW), NIH, of each contractor, subcontractor, or cooperating
institution having responsibility for animal care and use involved in
performance of the contract--see PHS Policy II., IV.A., and V.B.
(b) The OLAW, NIH, is responsible for negotiating assurances
covering all HHS/PHS-supported or HHS/PHS-conducted activities
involving the care and use of live vertebrate animals. OLAW shall
provide guidance to Contracting Officers regarding adequate animal
care, and use, approval, disapproval, restriction, or withdrawal of
approval of assurances--see PHS Policy V.A.
370.402 Assurances.
(a) Assurances may be one of two following types:
(1) Full Animal Welfare Assurance (AWA). An AWA describes the
institution's complete program for the care and use of animals,
including but not limited to the facilities, occupational health,
training, veterinary care, IACUC procedures and lines of authority and
responsibility. An AWA listed in OLAW's list of institutions which have
an approved full AWA is acceptable for purposes of this policy.
(2) Inter-institutional Agreement/Assurance (IAA). An IAA describes
the arrangements between an offeror and usually a subcontractor where
animal activities will occur. An IAA is limited to the specific award
or single project.
(b) The Contracting Officer shall forward copies of proposals
selected for negotiation and requiring an assurance to the Assurance
Branch, Office of Laboratory Animal Welfare, NIH MSC 7507, 6100
Executive Blvd., Room 3B01, Rockville, Maryland 20892, as early as
possible to secure the necessary assurances.
(c) A contractor providing animal care services at an assured
entity, such as a Government-owned, contractor-operated (GOCO) site,
does not need a separate assurance. GOCO site assurances normally cover
such contractor services.
370.403 Notice to offerors.
(a) The Contracting Officer shall insert the provision in 352.270-
5(a), Notice to Offerors of Requirement for Compliance with the Public
Health Service Policy on Humane Care and Use of Laboratory Animals, in
solicitations that involve vertebrate animals.
(b) Offerors having a full AWA on file with OLAW shall submit IACUC
approval of the use of animals in the manner required by instructions
for completion of the contract proposal, but prior to the technical
review of the proposal. The date of IACUC approval must not be more
than 36 months prior to the deadline for proposal submission.
(c) It is not necessary for non-assured offerors to submit
assurances or IACUC approval with proposals. OLAW shall contact
contractors, subcontractors and
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cooperating institutions to negotiate necessary assurances and verify
IACUC approvals when requested by the Contracting Officer.
370.404 Contract clause.
The Contracting Officer shall insert the clause in 352.270-5(b),
Care of Live Vertebrate Animals, in solicitations, contracts, and
orders that involve vertebrate animals.
Subpart 370.5--Acquisitions Under the Buy Indian Act
370.500 Scope of subpart.
This subpart sets forth the policy on preferential acquisition from
Indians under the negotiation authority of the Buy Indian Act. This
subpart applies only to acquisitions made by or on behalf of IHS.
370.501 Policy.
(a) The IHS shall utilize the negotiation authority of the Buy
Indian Act to give preference to Indians whenever the use of that
authority is authorized and is practicable. The Buy Indian Act, 25
U.S.C. 47, prescribes the application of the advertising requirements
of section 3709 of the Revised Statutes to the acquisition of Indian
supplies. As specified in 25 U.S.C. 47, the Buy Indian Act provides
that, so far as may be practicable, Indian labor shall be employed, and
purchases of the products (including, but not limited to printing,
notwithstanding any other law) of Indian industry may be made in open
market in the discretion of the Secretary of the Interior.
(b) Due to the transfer of authority from the Department of the
Interior to HHS, the Secretary of HHS is authorized to use the Buy
Indian Act in the acquisition of products of Indian industry, in
connection with the maintenance and operation of hospital and health
facilities for Indians, and for the conservation of the health of
Indians. This authority has been delegated exclusively to IHS and is
not available for use by any other HHS component (unless that component
is making an acquisition on behalf of IHS). However, the Buy Indian Act
itself does not exempt IHS from meeting the statutorily mandated small
business goals.
(c) Subsequent legislation, particularly Public Law 94-437 and
Public Law 96-537, have emphasized the use of the Buy Indian Act
negotiation authority.
370.502 Definitions.
(a) Buy Indian contract means any contract involving activities
covered by the Buy Indian Act that is negotiated under the provisions
of 41 U.S.C. 252(c) and 25 U.S.C. 47 between an Indian firm and a
Contracting Officer representing IHS.
(b) Indian means a member of any Tribe, pueblo, band, group,
village or community that is recognized by the Secretary of the
Interior as being Indian or any individual or group of individuals that
is recognized by the Secretary of the Interior or the Secretary of HHS.
The Secretary of HHS in making determinations may take into account the
determination of the Tribe with which affiliation is claimed.
(c) Indian firm means a sole enterprise, partnership, corporation,
or other type of business organization owned, controlled, and operated
by one or more Indians (including, for the purpose of sections 301 and
302 of Public Law 94-437, former or currently Federally recognized
Indian tribes in the State of New York) or by an Indian firm; or a
nonprofit firm organized for the benefit of Indians and controlled by
Indians (see 370.503(a)).
(d) Product of Indian industry means anything produced by Indians
through either physical labor or intellectual effort involving the use
and application of their skills.
370.503 Requirements.
(a) Indian ownership. The degree of Indian ownership of an Indian
firm shall be at least 51 percent during the period covered by a Buy
Indian contract.
(b) Joint ventures. An Indian firm may enter into a joint venture
with other entities for specific projects as long as the Indian firm is
the managing partner. However, the Contracting Officer shall approve
the joint venture prior to the award of a contract under the Buy Indian
Act.
(c) Bonds. In the case of contracts for the construction,
alteration, or repair of public buildings or public works, the Miller
Act (40 U.S.C. 270a-270f) and FAR part 28 require performance and
payment bonds. Bonds are not required in the case of contracts with
Indian tribes or public nonprofit organizations serving as governmental
instrumentalities of an Indian Tribe. However, bonds are required when
dealing with private business entities that are owned by an Indian
Tribe or members of an Indian Tribe. The Contracting Officer may
require bonds of private business entities that are joint ventures
with, or subcontractors of, an Indian Tribe or a public nonprofit
organization serving as a governmental instrumentality of an Indian
Tribe. A bid guarantee or bid bond is required only when a performance
or payment bond is required.
(d) Indian preference in employment, training and subcontracting.
Contracts awarded under the Buy Indian Act are subject to the
requirements of section 7(b) of the Indian Self-Determination and
Education Assistance Act 25 U.S.C. 450e, which requires that preference
be given to Indians in employment, training, and subcontracting. The
Contracting Officer shall include the Indian Preference clause
specified in 352.270-2 in all Buy Indian solicitations and resultant
contracts. The Contracting Officer shall use the Indian Preference
Program clause specified in 352.270-3 as prescribed in 370.202(b). The
Contracting Officer shall follow all requirements specified in subpart
370.2 which are applicable to a Buy Indian acquisition (e.g., sections
370.204 and 370.205).
(e) Subcontracting. A contractor shall not subcontract to other
than Indian firms more than 50 percent of the work under a prime
contract awarded pursuant to the Buy Indian Act. For this purpose, work
to be performed does not include the provision of materials, supplies,
or equipment.
(f) Wage rates. The Contracting Officer shall include a
determination of the minimum wage rates by the Secretary of Labor as
required by the Davis-Bacon Act (40 U.S.C. 276a) in all contracts
awarded under the Buy Indian Act for over $2,000 for construction,
alteration, or repair, including painting and decorating, of public
buildings and public works, except contracts with Indian tribes or
public nonprofit organizations serving as governmental
instrumentalities of an Indian Tribe. The Contracting Officer shall
include the wage rate determination in contracts with private business
entities, even if they are owned by an Indian Tribe or a member of an
Indian Tribe and in connection with joint ventures with, or
subcontractors of, an Indian Tribe or a public nonprofit organization
serving as a governmental instrumentality of an Indian Tribe.
370.504 Competition.
(a) Contracts awarded under the Buy Indian Act are subject to
competition among Indians or Indian concerns to the maximum extent
practicable. When the Contracting Officer determines that competition
is not practicable, a JOFOC is required in accordance with 306.303.
(b) The Contracting Officer shall: synopsize and publicize
solicitations in FedBizOpps and provide copies of the synopses to the
Tribal office of the Indian Tribal government directly concerned with
the proposed
[[Page 62472]]
acquisition as well as to Indian concerns and others having a
legitimate interest. The synopses shall state that the acquisitions are
restricted to Indian firms under the Buy Indian Act.
370.505 Responsibility determinations.
(a) The Contracting Officer may award a contract under the Buy
Indian Act only if the Contracting Officer determines that the project
or function to be contracted is likely to be: satisfactorily performed
under that contract; and properly completed or maintained under that
contract.
(b) The Contracting Officer shall make the determination specified
in paragraph (a) of this section in writing prior to the award of a
contract. The determination shall reflect an analysis of the standards
set forth in FAR 9.104-1.
Subpart 370.6--Conference Funding and Sponsorship
370.600 Policy.
It is HHS policy that the conferences it funds or sponsors shall:
be consistent with HHS missions, objectives, and policies; represent an
efficient and effective use of taxpayer funds; and be able to withstand
public scrutiny.
370.601 Funding and sponsorship.
Funding a conference through an HHS contract does not automatically
imply HHS (OPDIV/STAFFDIV) conference sponsorship, unless the
conference is funded entirely by HHS. Also, HHS staff attendance or
participation at a conference does not imply HHS conference
sponsorship. Accordingly, for other than conference contracts funded
entirely by HHS, prior to a contractor claiming HHS conference
sponsorship, the contractor must provide to the Contracting Officer a
written request for permission to claim HHS as the conference sponsor--
see 370.602. The OPDIV/STAFFDIV head, or designee, shall approve such
requests.
370.602 Contract clause.
To ensure that a contractor:
(a) Properly requests approval to claim HHS as 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 on conference materials, the Contracting Officer
shall include the clause in 352.270-7, Conference Sponsorship Request
and Conference Materials Disclaimer, in solicitations, contracts, and
orders that provide funding, in whole or in part, to support a
conference.
Subpart 370.7--Acquisitions Under the Leadership Act
370.700 Scope of subpart.
This subpart sets forth the acquisition requirements regarding
implementation of HIV/AIDS programs under the President's Emergency
Plan for AIDS Relief under the Leadership Act of 2003, and under the
Tom Lantos and Henry J. Hyde United States Global Leadership Against
HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act of 2008
(Emergency Plan reauthorization legislation), which was signed by the
President on July 30, 2008.
370.701 Contract clause.
The Contracting Officer shall insert the clause in 352.270-8,
Prostitution and Related Activities, in solicitations, contracts, and
orders, and in existing contracts and orders (whenever they are
modified to extend the period of performance or add funds, including
any options that may be exercised): in connection with the
implementation of HIV/AIDS programs under the President's Emergency
Plan for AIDS Relief; or where the contractor will receive funding
under the United States Leadership Against HIV/AIDS, Tuberculosis and
Malaria Act of 2003. (Note: See 370.702 and 352.270-9 for the ``Non-
discrimination for Conscience'' provision that must also be included in
applicable solicitations.) In resolving any issues/complaints that
offerors/contractors may raise about meeting the requirements specified
in the clause, the Contracting Officer shall consult with the Office of
Global Health Affairs, Office of the General Counsel, the Project
Officer, and other HHS officials, as appropriate.
370.702 Solicitation provision.
The Contracting Officer shall insert the provision in 352.270-9,
Non-discrimination for Conscience, in solicitations valued at more than
the micro-purchase threshold: in connection with the implementation of
HIV/AIDS programs under the President's Emergency Plan for AIDS Relief;
or where the contractor will receive funding under the United States
Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003.
(Note: See 370.701 and 352.270-8 for the ``Prostitution and Related
Activities'' clause that must also be included in applicable
solicitations, contracts, and orders.) In resolving any issues/
complaints that offerors may raise about meeting the requirements
specified in the provision, the Contracting Officer shall consult with
the Office of Global Health Affairs, Office of the General Counsel, the
Project Officer, and other HHS officials, as appropriate.
Dated: September 28, 2009.
E.J. Holland, Jr.
Assistant Secretary for Administration and Management, Office of the
Secretary, U.S. Department of Health and Human Services.
[FR Doc. E9-26948 Filed 11-25-09; 8:45 am]
BILLING CODE 4151-17-P