[Federal Register Volume 75, Number 79 (Monday, April 26, 2010)]
[Rules and Regulations]
[Pages 21508-21512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9382]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

48 CFR Chapter 3


Health and Human Services Acquisition Regulation; Corrections

AGENCY: Department of Health and Human Services.

ACTION: Correcting amendments.

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SUMMARY: This action corrects minor errors, inconsistencies and 
omissions in the final rule, which revised the Health and Human 
Services Acquisition Regulation (HHSAR) to implement statutes and 
government-wide mandates enacted or issued since December 2006.

DATES: These corrections are effective on April 26, 2010.

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, 202-690-5552 
(voice); [email protected] (e-mail); 202-690-8772 (facsimile).

SUPPLEMENTARY INFORMATION:

I. Background

    HHS published a revision of the entire HHSAR (48 CFR parts 301 
through 370) in the Federal Register on November 27, 2009 to reflect 
changes since the last revision was published in the Federal Register 
in December 2006. No adverse comments were received.
    The revisions included, but were not limited to, the following:
    A. Revising Subpart 301.6 regarding training and certification of 
acquisition officials to implement federal acquisition certification 
programs.

[[Page 21509]]

    B. Adding a new Subpart 304.13 to implement Homeland Security 
Presidential Directive--12.
    C. Adding a new Subpart 315.70 regarding 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 Improvement Act of 1998.
    D. Adding a new Subpart 317.1 to implement FAR coverage on multi-
year contracting and amending Subpart 332.7 to address awards made 
during a continuing resolution.
    E. Adding a new Subpart 334.2 to implement FAR coverage on earned 
value management (EVM).
    The final rule, which became effective on January 26, 2010, 
contained some minor errors, inconsistencies and omissions which this 
document corrects. Those technical corrections are set forth below. The 
corrections to the affected sections are merely procedural in nature 
and propose no substantive changes on which public comment could be 
solicited. HHS therefore finds that prior notice and opportunity for 
comment on these corrections are unnecessary pursuant to 5 U.S.C. 
553(b)(3)(A) and that good cause exists for these corrections to be 
exempt from the 30-day delayed effective date requirement of 5 U.S.C. 
553(d).

II. Summary of Changes

    The following summarizes the corrections set forth in this notice.
    A. HHS has changed multiple organizational titles to reflect recent 
reorganizations within the Office of the Secretary.
    B. HHS has resolved minor inconsistencies regarding Project Officer 
and Contracting Officer's Technical Representative (COTR) training and 
clarified the training requirements for technical evaluation panels.
    C. HHS has clarified requirements related to (1) use of multi-year 
contracting, (2) use of options under multi-year contracts, and (3) 
preparation of a ``determination and findings'' for an assisted 
contract.

List of Subjects in 48 CFR Parts 301, 302, 303, 304, 305, 306, 307, 
315, 316, 317, 319, 324, 332, 352, and 370

    Government procurement.

0
Accordingly, 48 CFR parts 301, 302, 303, 304, 305, 306, 307, 315, 316, 
317, 319, 324, 332, 352, and 370 are corrected by making the following 
amendments:
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1. The authority citation for 48 CFR parts 301, 302, 303, 304, 305, 
306, 307, 315, 316, 317, 319, 324, 332, 352, and 370 continues to read 
as follows:

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

PART 301--HHS ACQUISITION REGULATION SYSTEM

0
2. Section 301.101(a) is revised to read as follows:


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 Regulations (FAR) 
System.
* * * * *

0
3. Section 301.270(b)(3) is revised to read as follows:


301.270  Executive Committee for Acquisition.

* * * * *
    (b) * * *
    (3) Assistant Secretary for Preparedness and Response/Office of 
Acquisitions Management, Contracts and Grants (ASPR/OAMCG)
* * * * *

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4. Section 301.603-73(e) is revised to read as follows:


301.603-73  Additional HHS training requirements.

* * * * *
    (e) Section 508 training. When the HHS Office on Disability (OD) so 
requires, all GS-1102s, GS-1105s and GS-1106s who award or administer 
acquisitions that 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 
OD sponsored training. For information on frequency, timing, and 
duration of the training requirement, personnel shall consult with the 
HHS OD.
* * * * *

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5. In section 301.604-70, the first sentence is revised to read as 
follows:


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 Representatives Program Handbook (COTR 
Handbook), dated January 2009, for information on the methods for 
earning FAC-COTR certification. * * *

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6. Section 301.604-72 is revised to read as follows:


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' COTR Handbook for 
information on CLPs.

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7. Section 301.604-74 is revised to read as follows:


301.604-74  Additional COTR training requirements.

    (a) See HHS' COTR Handbook for information on additional COTR 
training requirements.
    (b) 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.
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8. In section 301.606-71, the last sentence is revised to read as 
follows:


301.606-71  Project Officer training.

    * * * See HHS' COTR Handbook for additional information on the 
basic training requirement for Project Officers and guidance on the 
training requirement for technical proposal evaluators in 
315.305(a)(3)(ii).


301.606-73 and 301.606-74  [Redesignated as 301.606-74 and 301.606-75]

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9. Sections 301.606-73 and 301.606-74 are redesignated as sections 
301.606-74 and 301.606-75, respectively.

[[Page 21510]]


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10. Add new section 301.606-73 to read as follows:


301.606-73  Requirements for continuous learning maintenance.

    Designated Project Officers require at least 40 relevant CLPs every 
2 years. See HHS' COTR Handbook for information on CLPs.

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11. Revise redesignated section 301.606-75 to read as follows:


301.606-75  Additional Project Officer training requirements.

    (a) See HHS' COTR Handbook for information on additional training 
requirements.
    (b) 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.


301.607-77  [Removed]

0
12. Remove section 301.607-77.


301.607-78 and 301.607-79  [Redesignated as 301.607-77 and 301.607-78]

0
13. Sections 301.607-78 and 301.607-79 are redesignated as sections 
301.607-77 and 301.607-78, respectively.

PART 302--DEFINITIONS OF WORDS AND TERMS

0
14. In section 302.101, paragraph (d)(1), and the first sentences of 
paragraphs (e) and (f), are revised to read as follows:


302.101  Definitions.

* * * * *
    (d) * * *
    (1) The HHS HCAs are as follows:

AHRQ: Director, Division of Contracts Management.
ASPR: Director, Office of Acquisitions Management, Contracts and 
Grants.
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.
* * * * *
    (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' P/PM Handbook. * * *
    (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' P/PM Handbook. * * *
* * * * *


302.7000  [Amended]

0
15. In section 302.7000(b), the table is amended by removing the 
acronym ``BARDA'' and its associated term ``Biomedical Advanced 
Research and Development Authority'' and adding in their place after 
``ASFR'' the acronym ``ASPR/OAMCG'' and its associated term ``Assistant 
Secretary for Preparedness and Response, Office of Acquisitions 
Management, Contracts and Grants''.

PART 303--IMPROPER BUSINESS PRACTICIES AND PERSONAL CONFLICTS OF 
INTEREST

0
16. Section 303.1003(b)(1) is revised to read as follows:


303.1003  Requirements.

* * * * *
    (b) * * *
    (1) Notify the OIG at http://www.oig.hhs.gov/fraud/hotline;
* * * * *

PART 304--ADMINISTRATIVE MATTERS


304.7001   [Amended]

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17. Sections 304.7001(b)(2) and (c)(2) are amended by removing the 
acronym ``BARDA'' and adding in its place the acronym ``ASPR/OAMCG''.

PART 305--PUBLICIZING CONTRACT ACTIONS

0
18. Section 305.303 is revised to read as follows:


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 e-mail a copy of the contract 
or award document face page to [email protected] 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.

PART 306--COMPETITION REQUIREMENTS


306.501   [Amended]

0
19. Section 306.501 is amended by removing ``BARDA: Chief of Mission 
Support and Acquisition Policy'' and adding in its place ``ASPR/OAMCG: 
Chief of Acquisition Policy''.

PART 307--ACQUISITION PLANNING

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20. In section 307.7101(c), the last sentence is revised to read as 
follows:


307.7101   Policy.

* * * * *
    (c) * * * Alternatively, OPDIVs may prescribe use of an AP for 
acquisitions excepted under 307.7101(a)(1) through (a)(8).

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21. Section 307.7102(b) is revised to read as follows:


307.7102   Content.

* * * * *
    (b) HCA or designee shall notify ASFR/OGAPA/DA of the need to 
revise the AP; and
* * * * *

PART 315--CONTRACTING BY NEGOTIATION

0
22. In section 315.305, the first sentence in paragraph 
(a)(3)(ii)(A)(3) is removed and three sentences are added in its place; 
and the second sentence in paragraph (a)(3)(v) is revised to read as 
follows:

[[Page 21511]]

315.305   Proposal evaluation.

    (a) * * *
    (3) * * *
    (ii) * * *
    (A) * * *
    (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 within 4 years before assuming their designated role. 
This training requirement applies to evaluators performing the initial 
technical evaluation and any subsequent technical evaluations, but does 
not apply to peer review panel members. The Contracting Officer may 
waive this training requirement in exigent circumstances if documented 
in writing and approved by the Head of Contracting Activity.
* * * * *
    (v) * * * The evaluators may then discuss in detail the individual 
strengths and weaknesses 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). * * *
* * * * *

PART 316--TYPES OF CONTRACTS


316.505   [Amended]

0
23. Section 316.505(b)(5) is amended by removing ``BARDA: Chief of 
Mission Support and Acquisition Policy'' and adding in its place 
``ASPR/OAMCG: Chief of Acquisition Policy''.

PART 317--SPECIAL CONTRACTING METHODS

0
24. In section 317.105-1, the first sentence of paragraph (a) 
introductory text, and paragraphs (a)(1) and (b), are revised; and a 
new paragraph (c) is added to read as follows:


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 
full estimated cancellation ceiling does not exceed 20 percent of the 
total contract value over the multi-year term or $11.5 million, 
whichever is less. * * *
    (1) The amount of, and basis for, the estimated cancellation 
ceiling.
* * * * *
    (b) (1) SPE approval is required for any--
    (i) Individual determination to use multi-year contracting with a 
cancellation ceiling in excess of the limits in 317.105-1(a); or
    (ii) Class determination (see FAR Subpart 1.7).
    (2) A determination involving a cancellation ceiling in excess of 
the limits in 317.105-1(a) shall present a compelling justification for 
the estimated cancellation ceiling. When the estimated cancellation 
ceiling exceeds $11.5 million, the determination shall be accompanied 
by a draft congressional notification letter pursuant to FAR 17.108 and 
317.108.
    (c) The funding required for performance of each year of a multi-
year contract under FAR Subpart 17.1 and this subpart must be provided 
in full at the start of that program year.

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25. Section 317.107 is revised to read as follows:


317.107   Options.

    When used as part of a multi-year contract, options shall not be 
used to extend the performance of the original requirement for non-
severable services beyond 5 years. Options may serve as a means to 
acquire related services (severable or non-severable) and, upon being 
exercised, shall be funded from the then-current fiscal year's 
appropriation.

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26. In section 317.503, paragraphs (a)(6) and (a)(7) are revised and a 
new paragraph (a)(8) is added to read as follows:


317.503   Determination and findings requirements.

    (a) * * *
    (6) The recommended multi-agency or intra-agency contracting 
approach;
    (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; and
    (8) The steps that will be taken to ensure that contract funding 
will comply with the bona fide needs rule and the Anti-Deficiency Act.

PART 319--SMALL BUSINESS PROGRAMS


319.201   [Amended]

0
27. Section 319.201(e)(1) is amended by removing the acronym ``BARDA'' 
and adding in its place ``ASPR/OAMCG''.

PART 324--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

0
28. Section 324.102(f) is revised to read as follows:


324.102   General.

* * * * *
    (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.

PART 332--CONTRACT FINANCING

0
29. In section 332.703-70(b), the first sentence is revised to read as 
follows:


332.703-70   Funding contracts during a continuing resolution.

* * * * *
    (b) * * * Because the terms of CRs may vary, for each CR, specific 
operating guidance will be issued by the Office of the Assistant 
Secretary for Financial Resources (ASFR). * * *
* * * * *

PART 352--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


352.219-70   [Amended]

0
30. In the provision heading in section 352.219-70, remove ``(October 
2009)'' and add in its place ``(January 2010)''.


352.219-71   [Amended]

0
31. In the clause heading in section 352.219-71, remove ``(October 
2009)'' and add in its place ``(January 2010)''.


352.222-70   [Amended]

0
32. In the clause heading in section 352.222-70, remove ``(October 
2009)'' and add in its place ``(January 2010)''.


352.231-70   [Amended]

0
33. In the clause heading in section 352.231-70, remove ``(October 
2009)'' and add in its place ``(January 2010)''.


352.233-70  [Amended]

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34. In the clause heading in section 352.233-70, remove ``(October 
2009)'' and add in its place ``(January 2010)''.


352.239-70  [Amended]

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35. In the clause heading in section 352.239-70, remove ``(October 
2009)'' and add in its place ``(January 2010)''.


352.239-71  [Amended]

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36. In the clause heading in section 352.239-71, remove ``(October 
2009)'' and add in its place ``(January 2010)''.


352.239-72  [Amended]

0
37. In the clause heading in section 352.239-72, remove ``(October 
2009)'' and add in its place ``(January 2010)''.

[[Page 21512]]

352.239-73  [Amended]

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38. In the provision heading in section 352.239-73(a) and the clause 
heading in 352.239-73(b), remove ``(October 2009)'' and add in its 
place ``(January 2010)''.


352.270-7  [Amended]

0
39. In the clause heading in section 352.270-7, remove ``(October 
2009)'' and add in its place ``(January 2010)''.


352.270-8  [Amended]

0
40. In the clause heading in section 352.270-8, remove ``(October 
2009)'' and add in its place ``(January 2010)''.


352.270-9  [Amended]

0
41. In the provision heading in section 352.270-9, remove ``(October 
2009)'' and add in its place ``(January 2010)''.

PART 370--SPECIAL PROGRAMS AFFECTING ACQUISITION

0
42. Section 370.400 is revised to read as follows:


370.400  Scope of subpart.

    This subpart applies to all R & D, research training, biological 
testing, housing and maintenance, and other 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).

0
43. Paragraph 370.403(a) is revised to read as follows:


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 live vertebrate animals.
* * * * *

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44. Section 370.404 is revised to read as follows:


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 live vertebrate animals.

    Dated: April 15, 2010.
Ellen G. Murray,
Assistant Secretary for Financial Resources.
[FR Doc. 2010-9382 Filed 4-23-10; 8:45 am]
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