[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2001 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
48
Chapters 3 to 6
Revised as of October 1, 2001
Federal Acquisition Regulations System
Containing a codification of documents
of general applicability and future effect
As of October 1, 2001
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
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U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2001
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Table of Contents
Page
Explanation................................................. v
Title 48:
Chapter 3--Health and Human Services 3
Chapter 4--Department of Agriculture 91
Chapter 5--General Services Administration 157
Chapter 6--Department of State 285
Finding Aids:
Table of CFR Titles and Chapters........................ 359
Alphabetical List of Agencies Appearing in the CFR...... 377
List of CFR Sections Affected........................... 387
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 48 CFR 301.101
refers to title 48, part
301, section 101.
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EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
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Many agencies have begun publishing numerous OMB
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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of provisions in effect on a given date in the past by using the
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January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
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the revision dates of the 50 CFR titles.
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There are no restrictions on the republication of material appearing
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[[Page vii]]
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Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2001.
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THIS TITLE
Title 48--Federal Acquisition Regulations System is composed of
seven volumes. The chapters in these volumes are arranged as follows:
Chapter 1 (parts 1 to 51), chapter 1 (parts 52 to 99), chapter 2 (parts
201 to 299), chapters 3 to 6, chapters 7 to 14, chapters 15 to 28 and
chapter 29 to end. The contents of these volumes represent all current
regulations codified under this title of the CFR as of October 1, 2001.
The Federal acquisition regulations in chapter 1 are those
government-wide acquisition regulations jointly issued by the General
Services Administration, the Department of Defense, and the National
Aeronautics and Space Administration. Chapters 2 through 99 are
acquisition regulations issued by individual government agencies. Parts
1 to 69 in each of chapters 2 through 99 are reserved for agency
regulations implementing the Federal acquisition regulations in chapter
1 and are numerically keyed to them. Parts 70 to 99 in chapters 2
through 99 contain agency regulations supplementing the Federal
acquisition regulations.
The OMB control numbers for the Federal Acquisition Regulations
System appear in section 1.106 of chapter 1. For the convenience of the
user section 1.106 is reprinted in the Finding Aids section of the
second volume containing chapter 1 (parts 52 to 99).
The first volume, containing chapter 1 (parts 1 to 51), includes an
index to the Federal acquisition regulations.
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[[Page 1]]
TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
(This book contains chapters 3 to 6)
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Part
chapter 3--Health and Human Services........................ 301
chapter 4--Department of Agriculture........................ 401
chapter 5--General Services Administration.................. 501
chapter 6--Department of State.............................. 601
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CHAPTER 3--HEALTH AND HUMAN SERVICES
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SUBCHAPTER A--GENERAL
Part Page
301 HHS Acquisition Regulation System........... 5
302 Definitions of words and terms.............. 8
303 Improper business practices and personal
conflicts of interest................... 10
304 Administrative matters...................... 11
SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
305 Publicizing contract actions................ 14
306 Competition requirements.................... 14
307 Acquisition planning........................ 16
309 Contractor qualifications................... 25
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
313 Simplified acquisition procedures........... 29
314 Sealed bidding.............................. 29
315 Contracting by negotiation.................. 30
316 Types of contracts.......................... 47
317 Special contracting methods................. 49
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
319 Small business programs..................... 50
323 Environment, conservation, occupational
safety, and drug-free workplace......... 51
324 Protection of privacy and freedom of
information............................. 52
325 Foreign acquisition......................... 54
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
328 Bonds and insurance......................... 56
330 Cost accounting standards................... 56
332 Contract financing.......................... 56
333 Protests, disputes, and appeals............. 59
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
334 Major system acquisition.................... 64
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335 Research and development contracting........ 64
SUBCHAPTER G--CONTRACT MANAGEMENT
342 Contract administration..................... 66
SUBCHAPTER H--CLAUSES AND FORMS
352 Solicitation provisions and contract clauses 71
353 Forms....................................... 83
SUBCHAPTER T--HHS SUPPLEMENTATIONS
370 Special programs affecting acquisition...... 84
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SUBCHAPTER A_GENERAL
PART 301_HHS ACQUISITION REGULATION SYSTEM
Subpart 301.1_Purpose, Authority, Issuance
Sec.
Sec. 301.101 Purpose.
Sec. 301.103 Authority
Sec. 301.106 OMB approval under the Paperwork Reduction Act.
Subpart 301.2_Administration
Sec. 301.270 Executive Committee for Acquisition.
Subpart 301.4_Deviations from the FAR
Sec. 301.403 Individual deviations.
Sec. 301.404 Class deviations.
Sec. 301.470 Procedure.
Subpart 301.6_Career Development, Contracting Authority, and
Responsibilities
Sec. 301.602 Contracting officers.
Sec. 301.602-3 Ratification of unauthorized commitments.
Sec. 301.603 Selection, appointment, and termination of appointment.
Sec. 301.603-1 General.
Sec. 301.603-2 Selection.
Sec. 301.603-3 Appointment.
Sec. 301.603-4 Termination.
Sec. 301.603-70 Delegation of contracting officer responsibilities.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4220, Jan. 17, 2001, unless otherwise noted.
Subpart 301.1_Purpose, Authority, Issuance
Sec. 301.101 Purpose.
(a) The Department of Health and Human Services Acquisition
Regulation (HHSAR) is issued to establish uniform acquisition policies
and procedures for the Department of Health and Human Services (HHS)
which conform to the Federal Acquisition Regulation (FAR) System.
(b) The HHSAR implements and supplements the FAR. (Implementing
material expands upon or indicates the manner of compliance with related
FAR material. Supplementing material is new material which has no
counterpart in the FAR.)
(c) The HHSAR contains all formal departmental policies and
procedures that govern the acquisition process or otherwise control
contracting relationships between the Department's contracting offices
and contractors.
Sec. 301.103 Authority.
(b) The HHSAR is prescribed by the Assistant Secretary for
Management and Budget 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.''
Sec. 301.106 OMB approval under the Paperwork Reduction Act.
(a) The following OMB control numbers apply to the information
collection and recordkeeping requirements contained in this chapter:
------------------------------------------------------------------------
OMB control
HHSAR segment No.
------------------------------------------------------------------------
315.4...................................................... 0990-0139
324.70..................................................... 0990-0136
342.7101................................................... 0990-0131
352.224-70................................................. 0990-0137
352.224-70................................................. 0990-0136
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
------------------------------------------------------------------------
(b) The OMB control number ``OMB No. 0990-0115'' is to be included
in the upper right corner of the first page of all solicitations,
purchase orders, and contracts issued by departmental contracting
activities. The number represents approval of the HHS acquisition
process and covers recordkeeping and reporting requirements which are
unique to individual acquisitions (e.g.,
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requirements contained in specifications, statements of work, etc.).
Subpart 301.2_Administration
Sec. 301.270 Executive Committee for Acquisition.
(a) The Deputy Assistant Secretary for Grants and Acquisition
Management has established the Executive Committee for Acquisition (ECA)
to assist and facilitate the planning and development of departmental
acquisition policies and procedures and to assist in responding to other
agencies and organizations concerning policies and procedures impacting
the Federal acquisition process.
(b) The ECA consists of members and alternates from the Office of
Acquisition Management, Administration for Children and Families, Agency
for Healthcare Research and Quality, Health Care Financing
Administration, Program Support Center, Centers for Disease Control and
Prevention, Food and Drug Administration, Health Resources and Services
Administration, Indian Health Service, National Institutes of Health,
and Substance Abuse and Mental Health Services Administration. The ECA
is chaired by the Director, Office of Acquisition Management. All
meetings will be held at the call of the Chair, and all activities will
be carried out under the direction of the Chair.
(c) The ECA, to facilitate the planning, development, and
coordination of governmentwide and departmentwide acquisition policies
and procedures, is to:
(1) Advise and assist the Chair concerning major acquisition policy
matters;
(2) Review and appraise, at appropriate intervals, the overall
effectiveness of existing policies and procedures; and
(3) Review and appraise the impact of new major acquisition
policies, procedures, regulations, and development on current
acquisition policies and procedures.
(d) The Chair will periodically issue a list of current members and
alternates specifying the name, title, organization, address, and
telephone number of each. The member organizations are responsible for
apprising the Chair whenever a new member or alternate is to be
appointed to the ECA, or an organizational change retitles the
individual or organization.
Subpart 301.4_Deviations From the FAR
Sec. 301.403 Individual deviations.
Requests for individual deviations to either the FAR or HHSAR shall
be prepared in accordance with 301.470 and forwarded through
administrative channels to the Director, Office of Acquisition
Management for review and approval.
Sec. 301.404 Class deviations.
Requests for class deviations to either the FAR or HHSAR shall be
prepared in accordance with 301.470 and forwarded through administrative
channels to the Deputy Assistant Secretary for Grants and Acquisition
Management for review and approval.
Sec. 301.470 Procedure.
(a) When a contracting office determines that a deviation is needed,
it shall prepare a deviation request in memorandum form and forward it
through administrative channels to the official designated in 301.403 or
301.404. In an exigency situation, the contracting office may request a
deviation verbally, through normal acquisition channels, but is required
to confirm the request in writing as soon as possible.
(b) A deviation request shall clearly and precisely set forth the:
(1) Nature of the needed deviation;
(2) Identification of the FAR or HHSAR citation from which the
deviation is needed;
(3) Circumstances under which the deviation would be used;
(4) Intended effect of the deviation;
(5) Period or applicability;
(6) Reasons which will contribute to complete understanding and
support of the requested deviation. A copy of pertinent background
papers such as a contractor's request should accompany the deviation
request.; and
(7) Suggested wording for the deviation (if applicable).
[[Page 7]]
Subpart 301.6_Career Development, Contracting Authority, and
Responsibilities
Sec. 301.602 Contracting officers.
Sec. 301.602-3 Ratification of unauthorized commitments.
(b) Policy. (1) The Government is not bound by agreements or
contractual commitments made to prospective contractors by persons to
whom contracting authority has not been delegated. However, execution of
otherwise proper contracts made by individuals without contracting
authority, or by contracting officers in excess of the limits of their
delegated authority, may be later ratified. The ratification must be in
the form of a written document clearly stating that ratification of a
previously unauthorized act is intended and must be signed by the head
of the contracting activity (HCA).
(2) The HCA is the official authorized to ratify an unauthorized
commitment (but see paragraph (b)(3) of this section).
(3) Ratification authority for actions up to $25,000 may be
redelegated by the HCA to the chief of the contracting office (CCO). No
other redelegations are authorized.
(c) Limitations. (5) The concurrence of legal counsel concerning the
payment issue is optional.
(e) Procedures. (1) The individual who made the unauthorized
contractual commitment shall furnish the reviewing contracting officer
all records and documents concerning the commitment and a complete
written statement of facts, including, but not limited to: a statement
as to why the contracting office was not used, a statement as to why the
proposed contractor was selected, a list of other sources considered, a
description of work to be performed or products to be furnished, the
estimated or agreed contract price, a citation of the appropriation
available, and a statement whether the contractor has commenced
performance.
(2) The contracting officer will review the submitted material, and
prepare the ratification document if he/she determines that the
commitment may be ratifiable. The contracting officer shall forward the
ratification document and the submitted material to the HCA or CCO with
any comments or information which should be considered in evaluation of
the request for ratification. If legal review is desirable, the HCA or
CCO will coordinate the request for ratification with the Office of
General Counsel, Business and Administrative Law Division.
(3) If ratification is authorized by the HCA or CCO, the file will
be returned, along with the ratification document, to the contracting
officer for issuance of a purchase order or contract, as appropriate.
Sec. 301.603 Selection, appointment, and termination of appointment.
Sec. 301.603-1 General.
(a) The appointment and termination of appointment of contracting
officers shall be made by the head of the contracting activity (HCA).
This authority is not delegable.
(b) The contracting officer appointment document for personnel in
the GS-1101, 1102, and 1105 series, as well as personnel in any other
series who will obligate the Government to the expenditure of funds in
excess of the micro-purchase threshold, shall be the Standard Form
(SF)--1402, Certificate of Appointment. The HCA may determine an
alternative appointment document for appointments at or below that
threshold. Changes to appointments shall be made by issuing a new
appointment document. Each appointment document shall be prepared and
maintained in accordance with FAR 1.603-1 and shall state the limits of
the individual's authority.
(c) An individual must be certified at the appropriate level under
the HHS Acquisition Certification Program as a prerequisite to being
appointed as a contracting officer with authority to obligate funds in
excess of the micro-purchase threshold (see 301.603-3(a)). The HCA will
determine and require appropriate training for individuals appointed as
contracting officers at lower dollar levels. An individual shall be
appointed as a contracting officer only in instances where a valid
organizational need can be demonstrated. Factors to be considered in
assessing the need for
[[Page 8]]
an appointment of a contracting officer include volume of actions,
complexity of work, and structure of the organization.
Sec. 301.603-2 Selection.
Nominations for appointment of contracting officers shall be
submitted to the HCA through appropriate organizational channels for
review. The nomination package, which is usually initiated by the
prospective contracting officer's immediate supervisor, shall normally
include the nominee's current personal qualifications statement or job
history, including the information required by FAR 1.603-2, a copy of
his/her most recent performance appraisal, and a copy of the certificate
issued under the HHS Acquisition Certification Program indicating the
nominee's current certification level, if applicable. The HCA will
determine the documentation required, consistent with FAR 1.603-2, when
the resulting appointment and authority will not exceed the micro-
purchase threshold.
Sec. 301.603-3 Appointment.
(a) Contracting officer appointments shall be made at levels
commensurate with nominees' certification levels as follows:
(1) Level I--Purchasing Agent--Required for all personnel in the GS-
1102 and 1105 series having signature authority for simplified
acquisitions, including orders from GSA sources over the micro-purchase
threshold.
(2) Level II--Acquisition Official--Required for all personnel in
the GS-1102 series. Sufficient for delegation of contracting officer
authority up to $500,000.
(3) Level III--Senior Acquisition Official--Required for all
personnel in the GS-1102 series for delegation of contracting officer
authority above $500,000.
(4) Level IV--Acquisition Manager--Required for delegation of pre-
award review and approval authority as specified in subpart 304.71.
(b) If it is essential to appoint an individual who does not fully
meet the certification requirements of this section for the contracting
officer authority sought, an interim appointment may be granted by the
HCA. Interim appointments may not exceed one (1) year in total, and
shall not be granted unless the individual can meet the certification
requirements within one year from the date of appointment. If the
certification requirements are not met by that date, the appointment
will automatically terminate and cannot be renewed.
Sec. 301.603-4 Termination.
Termination of contracting officer appointments shall be
accomplished in accordance with FAR 1.603-4.
Sec. 301.603-70 Delegation of contracting officer responsibilities.
(a) Contracting officer responsibilities which do not involve the
obligation (or deobligation) of funds or result in establishing or
modifying contractual provisions may be delegated by the contracting
officer by means of a written memorandum which clearly delineates the
delegation and its limits.
(b) Contracting officers may designate individuals as ordering
officials to make purchases or place orders under blanket purchase
agreements, indefinite delivery contracts, or other pre-established
mechanisms. Ordering officials, including those under NIH's DELPRO, are
not contracting officers.
(c) Project officers are required to complete the training specified
in 307.170, while ordering officials and others should receive
sufficient instruction from the contracting officer to ensure the
appropriate exercise of the responsibilities and knowledge of their
limitations.
PART 302_DEFINITIONS OF WORDS AND TERMS
Subpart 302.1_Definitions
Sec.
Sec. 302.101 Definitions.
Subpart 302.2_Definitions Clause
Sec. 302.201 Contract clause.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4222, Jan. 17, 2001, unless otherwise noted.
[[Page 9]]
Subpart 302.1_Definitions
Sec. 302.101 Definitions.
Chief of the contracting office (CCO) is a mid-level management
official in charge of a contracting office who controls and oversees the
daily contracting operation of an Operating Division (OPDIV) or major
component of an OPDIV. The CCO is subordinate to the head of the
contracting activity, and is located at a management level above other
contracting personnel, usually as a branch chief or division director.
Head of the agency or agency head, unless otherwise specified, means
the head of the Operating Division (OPDIV) for ACF, AHRQ, HCFA, PSC,
CDCP, FDA, HRSA, IHS, NIH, and SAMHSA, or the Assistant Secretary for
Management and Budget (ASMB) for the Office of the Secretary (OS).
Head of the contracting activity (HCA) is defined in terms of
certain organizational positions within the Office of Grants and
Acquisition Management (OGAM), Administration for Children and Families
(ACF), Agency for Healthcare Research and Quality (AHRQ), Health Care
Financing Administration (HCFA), Program Support Center (PSC), Centers
for Disease Control and Prevention (CDCP), Food and Drug Administration
(FDA), Health Resources and Services Administration (HRSA), Indian
Health Service (IHS), National Institutes of Health (NIH), and Substance
Abuse and Metal Health Services Administration (SAMHSA), as follows:
OGAM-OS--Director, Office of Acquisition Management
ACF--Director, Division of Acquisition Management
AHRQ--Director, Division of Contracts Management
HCFA--Director, Acquisition and Grants Group
PSC--Director, Division of Acquisition Management
CDCP--Director, Procurement and Grants Office
FDA--Director, Policy, Evaluation and Support Staff, Office of
Facilities, Acquisition, and Central Services
HRSA--Director, Division of Grants and Procurement Management
IHS--Director, Division of Acquisitions and Grants Management
NIH--Director, Office of Acquisition Management and Policy
SAMHSA--Director, Division of Contracts Management
In addition, the Deputy Assistant Secretary for Grants and
Acquisition Management (DASGAM) is designated as an HCA. Each HCA is
responsible for conducting an effective and efficient acquisition
program. Adequate controls shall be established to assure compliance
with applicable laws, regulations, procedures, and the dictates of good
management practices. Periodic reviews shall be conducted and evaluated
by qualified personnel, preferably assigned to positions other than in
the contracting office being reviewed, to determine the extent of
adherence to prescribed policies and regulations, and to detect a need
for guidance and/or training. The HCA shall be certified, or be
certifiable, at Level IV of the HHS Acquisition Certification Program.
Individuals appointed as HCA's who do not meet the Level IV requirements
shall have one year from the date of appointment to obtain Level IV
certification. The heads of contracting activities may redelegate their
HCA authorities to the extent that redelegation is not prohibited by the
terms of their respective delegations of authority, by law, by the
Federal Acquisition Regulation, by the HHS Acquisition Regulation, or by
other regulations. However, HCA and other contracting approvals and
authorities shall not be redelegated below the levels specified in the
HHS Acquisition Regulation or, in the absence of coverage in the HHS
Acquisition Regulation, the Federal Acquisition Regulation. To ensure
proper control of redelegated acquisition authorities, HCA's shall
maintain a file containing successive delegations of HCA authority
through and including the contracting officer level. Personnel delegated
responsibility for acquisition functions must possess a level of
experience, training, and ability commensurate with the complexity and
magnitude of the acquisition actions involved.
[[Page 10]]
Subpart 302.2_Definitions Clause
Sec. 302.201 Contract clause.
The FAR clause, Definitions, at 52.202-1 shall be used as prescribed
in FAR 2.201, except as follows:
(a) Paragraph (a) at 352.202-1 shall be used in place of paragraph
(a) of the FAR clause.
(b) Paragraph (h), or its alternate, at 352.202-1 shall be added to
the end of the FAR clause. Use paragraph (h) when a fixed-priced
contract is anticipated; use the alternate to paragraph (h) when a cost-
reimbursement contract is anticipated. This is an authorized deviation.
PART 303_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
Subpart 303.1_Safeguards
Sec.
Sec. 303.101 Standards of conduct.
Sec. 303.101-3 Agency regulations.
Subpart 303.2_Contract Gratuities to Government Personnel
Sec. 303.203 Reporting suspected violations of the Gratuities clause.
Subpart 303.3_Reports of Suspected Antitrust Violations
Sec. 303.303 Reporting suspected antitrust violations.
Subpart 303.4_Contingent Fees
Sec. 303.405 Misrepresentations or violations of the Covenant Against
Contingent Fees.
Subpart 303.6_Contracts With Government Employees or Organizations Owned
or Controlled by Them
Sec. 303.602 Exceptions.
Subpart 303.7_Voiding and Rescinding Contracts
Sec. 303.704 Policy.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4223, Jan. 17, 2001, unless otherwise noted.
Subpart 303.1_Safeguards
Sec. 303.101 Standards of conduct.
Sec. 303.101-3 Agency regulations.
The Department of Health and Human Services' Standards of Conduct
are prescribed in 45 CFR part 73.
Subpart 303.2_Contractor Gratuities to Government Personnel
Sec. 303.203 Reporting suspected violations of the Gratuities clause.
Departmental personnel shall report suspected violations of the
Gratuities clause in accordance with subpart M, Reporting Violations, of
45 CFR part 73. Refer to subpart B, Gifts from Outside Sources, (5 CFR
2635.201) for an explanation regarding what is prohibited and what is
permitted.
Subpart 303.3_Reports of Suspected Antitrust Violations
Sec. 303.303 Reporting suspected antitrust violations.
A copy of each report of suspected antitrust violations submitted to
the Attorney General by the HCA shall also be submitted to the Director,
Office of Acquisition Management.
Subpart 303.4_Contingent Fees
Sec. 303.405 Misrepresentations or violations of the Covenant Against
Contingent Fees.
(c) Reports shall be made promptly to the contracting officer.
(d)(4) Suspected fraudulent or criminal matters to be reported to
the Department of Justice shall be prepared in letter format and
forwarded through acquisition channels to the head of the contracting
activity for signature. The letter must contain all pertinent facts and
background information considered by the contracting officer and chief
of the contracting office that led to the decision that fraudulent or
criminal matters may be present. A copy of the signed letter shall be
sent to the Director, Office of Acquisition Management.
[[Page 11]]
Subpart 303.6_Contracts With Government Employees or Organizations Owned
or Controlled by Them
Sec. 303.602 Exceptions.
Approval of an exception to the policy stated in FAR 3.601 shall be
made by the HCA (not delegable).
Subpart 303.7_Voiding and Rescinding Contracts
Sec. 303.704 Policy.
For purposes of implementing FAR subpart 3.7, the authorities
granted to the ``agency head or designee'' shall be exercised by the HCA
(not delegable).
PART 304_ADMINISTRATIVE MATTERS
Subpart 304.6_Contract Reporting
Sec.
Sec. 304.602 Federal Procurement Data System (FPDS).
Subpart 304.8_Government Contract Files
Sec. 304.804-70 Contract closeout audits.
Subpart 304.70_Acquisition Instrument Identification Numbering System
Sec. 304.7000 Scope of subpart.
Sec. 304.7001 Numbering acquisitions.
Subpart 304.71_Review and Approval of Proposed Contract Awards
Sec. 304.7100 Policy.
Sec. 304.7101 Procedures.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4224, Jan. 17, 2001, unless otherwise noted.
Subpart 304.6_Contracting Reporting
Sec. 304.602 Federal Procurement Data System (FPDS).
The Departmental Contracts Information System (DCIS) represents the
Department's implementation of the FPDS. All departmental contracting
activities are required to participate in the DCIS and follow the
procedures stated in the Enhanced Departmental Contracts Information
System Manual and amendments to it. The HCA (not delegable) shall ensure
that all required contract information is collected, submitted, and
received into the DCIS on or before the 15th of each month for all
appropriate contract and contract modifications award of the prior
month.
Subpart 304.8_Government Contract Files
Sec. 304.804-70 Contract closeout audits.
(a) Contracting officers shall rely, to the maximum extent possible,
on non-Federal single audits to close physically completed cost-
reimbursement contracts with colleges and universities, hospitals, non-
profit firms, and State and local governments. In addition, where
appropriate, a sample of these contractors may be selected for audit, in
accordance with the decision-making process set forth in the following
paragraph (b).
(b) Contracting officers shall request contract closeout audits on
physically completed, cost-reimbursement, for-profit contracts in
accordance with the following:
(1) Decisions on: The need for and allocation of contract audit
resources and services; the selection of contracts or contractors to be
audited; the identification of the audit agency to perform the audit;
and the type or scope of closeout audit to be conducted, shall be made
by the Office of Inspector General (OIG) and Office of Grants and
Acquisition Management, in consultation with the Department's Contract
Audit Users Work Group. These decisions shall be based upon 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 via the appropriate OPDIV representative on the
Contract Audit Users Work Group.
(2) Except where a contracting officer suspects misrepresentation or
fraud, contract closeout field audits shall not be requested if the cost
of performance is likely to exceed the potential cost recovery.
Contracts that are not selected for a field audit may be closed
[[Page 12]]
on the basis of a desk review, subject to any later on-site audit
findings. 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 the amount of any sustained audit exceptions
resulting from any audit made after final payment shall be refunded to
the Government.''
Subpart 304.70_Acquisition Instrument Identification Numbering System
Sec. 304.7000 Scope of subpart.
This subpart prescribes policy and procedures for assigning
identifying numbers to contracts and related instruments, including
solicitation documents, purchase orders, and delivery orders. The HCA
(not delegable) is responsible for establishing the numbering system
within the OPDIV.
Sec. 304.7001 Numbering acquisitions.
(a) Acquisitions which require numbering. The following acquisitions
shall be numbered in accordance with the system prescribed in paragraphs
(b) and (c) of this section:
(1) Contracts, including letter contracts and task orders under
basic ordering agreements, which involve the payment of $2,500 or more
for the acquisition of personal property or nonpersonal services. (The
number assigned to a letter contract shall be assigned to the
superseding definitized contract).
(2) Contracts which involve the payment of $2,000 or more for
construction (including renovation or alteration).
(3) Contracts which involve more than one payment regardless of
amount.
(4) Requests for proposals and invitations for bids.
(5) Requests for quotations.
(6) Basic ordering agreements.
(b) Numbering system for contracts. All contracts which require
numbering (paragraphs (a)(1) through (3) of this section) shall be
assigned a number consisting of the following:
(1) The three digit identification code assigned to the contracting
office by the Office of Grants and Acquisition Management (OGAM).
(2) A two digit fiscal year designation; and
(3) A four digit serial number. For example, the initial contract
executed by the Office of Acquisition Management, OS, for fiscal year
1996 would be numbered 100-96-0001. While it is required that a
different series of four digit serial numbers be used for each fiscal
year, serial numbers assigned need not be sequential.
(c) Numbering system for other acquisitions. The HCA is responsible
for developing a numbering system for the acquisitions other than
contracts listed in paragraphs, (a)(4) through (a)(6) of this section,
and any other types of acquisitions that may be used.
(d) Assignment of identification codes. Each contracting office of
the Department shall be assigned a three digit identification code by
the OGAM. Requests for the assignment of codes for newly established
contracting offices shall be submitted by the headquarters acquisition
staff office of the contracting activity to the OGAM. A listing of the
contracting office identification codes currently in use is contained in
the Enhanced Departmental Contracts Information System Manual.
Subpart 304.71_Review and Approval of Proposed Contract Awards
Sec. 304.7100 Policy.
This subpart requires each HCA (not delegable) to establish review
and approval procedures for proposed contracts actions to ensure that:
(a) Contract awards are in conformance with law, established
policies and procedures, and sound business practices;
(b) Contractual documents properly reflect the mutual understanding
of the parties; and
(c) The contracting officer is informed of deficiencies and items of
questionable acceptability, and corrective action is taken.
[[Page 13]]
Sec. 304.7101 Procedures.
(a) All contractual documents, regardless of dollar value, are to be
reviewed by the contracting officer prior to award.
(b) The HCA is responsible for establishing review and approval
procedures and designating acquisition officials to serve as reviewers.
Each HCA is responsible for determining the criterion (criteria) to be
used in determining which contracts are to be reviewed, and that a
sampling of proposed contracts not included in the ``to be reviewed''
group are reviewed and approved.
(c) Officials assigned responsibility for review and approval of
contract actions must possess qualifications in the field of acquisition
commensurate with the level of review performed, and, at a minimum,
possess those acquisition skills expected of a contracting officer.
However, if any official is to serve as the contracting officer and sign
the contractual document, the review and approval function shall be
performed by an appropriate official at least one level above.
[[Page 14]]
SUBCHAPTER B_COMPETITION AND ACQUISITION PLANNING
PART 305_PUBLICIZING CONTRACT ACTIONS
Subpart 305.2_Synopsis of Proposed Contract Actions
Sec.
Sec. 305.202 Exceptions.
Subpart 305.3_Synopsis of Contract Awards
Sec. 305.303 Announcement of contract awards.
Subpart 305.5_Paid Advertisements
Sec. 305.502 Authority.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4225, Jan. 17, 2001, unless otherwise noted.
Subpart 305.2_Synopsis of Proposed Contract Actions
Sec. 305.202 Exceptions.
(b) When a contracting office believes that it has a situation where
advance notice is not appropriate or reasonable, it shall prepare a
memorandum citing all pertinent facts and details and send it, through
normal acquisition channels, to the Deputy Assistant Secretary for
Grants and Acquisition Management (DASGAM) requesting relief from
synopsizing. The DASGAM shall review the request and decide whether an
exception to synopsizing is appropriate or reasonable. If it is, the
DASGAM shall take the necessary coordinating actions required by FAR
5.202 (b). Whatever the decision is on the request, the DASGAM shall
promptly notify the contracting office when a determination has been
made.
Subpart 305.3_Synopses of Contract Awards
Sec. 305.303 Announcement of contract awards.
(a) Public announcement. Any contract, contract modification, or
delivery order in the amount of $3 million or more shall be reported by
the contracting officer to the Office of the Deputy Assistant Secretary
for Legislation (Congressional Liaison), Room 406G, Hubert H. Humphrey
Building. Notification shall be accomplished by providing 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 for an announcement to
be made by 5 p.m. Washington, DC time on the day of award.
Subpart 305.5_Paid Advertisements
Sec. 305.502 Authority.
The contracting officer is authorized to publish advertisements,
notices, and notices that proposals are being sought in newspapers and
periodicals in accordance with the requirements and conditions
referenced in FAR subpart 5.5.
PART 306_COMPETITION REQUIREMENTS
Subpart 306.2_Full and Open Competition After Exclusion of Sources
Sec.
Sec. 306.202 Establishing or maintaining alternative sources.
Subpart 306.3_Other Than Full and Open Competition
Sec. 306.302 Circumstances permitting other than full and open
competition.
Sec. 306.302-1 Only one responsible source and no other supplies or
services will satisfy agency requirements.
Sec. 306.302-7 Public interest.
Sec. 306.303 Justification.
Sec. 306.303-1 Requirements
Sec. 306.303-2 Content.
Sec. 306.304 Approval of the justification.
Subpart 306.5_Competition Advocates
Sec. 306.501 Requirement.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4225, Jan. 17, 2001, unless otherwise noted.
[[Page 15]]
Subpart 306.2_Full and Open Competition After Exclusion of Sources
Sec. 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 cited in 306.501.
(b)(1) The required determination and findings (D&F) shall be
prepared by the contracting officer based on the data provided by
program personnel, and shall be signed by the appropriate competition
advocate. The D&F signatory is not delegable.
Subpart 306.3_Other Than Full and Open Competition
Sec. 306.302 Circumstances permitting other than full and open
competition.
Sec. 306.302-1 Only one responsible source and no other supplies or
services will satisfy agency requirements.
(a) (2) (ii) Follow-on contracts for the continuation of major
research and development studies on long-term social and health
programs, major 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 the
Department's or OPDIV's requirements.
(b) Application. (4) When the head of the program office has
determined that a specific item of technical equipment or parts must be
obtained to meet the activity's program responsibility to test and
evaluate certain kinds and types of products, and only one source is
available. (This criterion is limited to testing and evaluation purposes
only and may not be used for initial outfitting or repetitive
acquisitions. Project officers should support the use of this criterion
with citations from their agency's legislation and the technical
rationale for the item of equipment required.)
Sec. 306.302-7 Public interest.
(a) Authority. (2) Agency head, in this instance, means the
Secretary.
(c) Limitations. An ``approval package'' must be prepared by the
contracting officer and staffed through departmental acquisition
channels to the Secretary. The package shall include a determination and
findings for the Secretary to sign that contains all pertinent
information to support justification for exercising the exemption to
competition, and a letter for the Secretary to sign notifying Congress
of the determination to award a contract under the authority of 41
U.S.C. 253(c)(7).
Sec. 306.303 Justifications.
Sec. 306.303-1 Requirements.
(b) Preliminary arrangements or agreements with the proposed
contractor shall have no effect on the rationale used to support an
acquisition for other than full and open competition.
(f) When a program office desires to obtain certain goods or
services by contract without full and open competition, it shall, at the
time of forwarding the requisition or request for contract, furnish the
contracting office a justification explaining why full and open
competition is not feasible. All justifications shall be initially
reviewed by the contracting officer.
(1) Justifications 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 called a ``JOFOC''
(Justification for Other Than Full and Open Competition). Justifications
at or below the simplified acquisition threshold may be in the form of a
paragraph or paragraphs contained in the requisition or request for
contract.
(2) Justifications, whether over or under the simplified acquisition
threshold, shall fully describe what is to be acquired, offer reasons
which go beyond inconvenience, and explain why it is not feasible to
obtain competition. The justifications shall be supported by verifiable
facts rather than mere opinions. Documentation in the justification
should be sufficient to permit an individual with technical competence
in the area to follow the rationale.
[[Page 16]]
Sec. 306.303-2 Content.
(a)(1) The program office and name, address, and telephone number of
the project officer shall also be included.
(2) This item shall include project identification such as the
authorizing program legislation, to include citations or other internal
program identification data such as title, contract number, etc.
(3) The description may be in the form of a statement of work,
purchase description, or specification. A statement is to be included to
explain whether the acquisition is an entity in itself, whether it is
one in a series, or part of a related group of acquisitions.
(c) Each JOFOC shall conclude with at least signature lines for the
project officer, project officer's immediate supervisor, contracting
officer, and approving official.
Sec. 306.304 Approval of the justification.
(a)(2) The competition advocates are listed in 306.501. This
authority is not delegable.
(3) The competition advocate 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 authority is not
delegable.
(4) The senior procurement executive of the Department is the
Assistant Secretary for Management and Budget.
(c) A class justification shall be processed the same as an
individual justification.
Subpart 306.5_Competition Advocates
Sec. 306.501 Requirement.
The Department's competition advocate is the Deputy Assistant
Secretary for Grants and Acquisition Management. The competition
advocates for the Department's primary contracting officers are as
follows:
ACF--Director, Office of Management Services
HCFA--Director, Office of Internal Customer Support
OS--Deputy Assistant Secretary for Grants and Acquisition Management
PSC--Director, Administrative Operations Service
AHRQ--Executive Officer
CDCP--Director, Office of Program Support
FDA--Director, Office of Facilities, Acquisition, and Central Services
HRSA--Associate Administrator for Operations and Management
IHS--Director, Office of Management and Support
NIH--(R&D)--Director, Office of Extramural Research (Other than R&D)--
Director, Office of Intramural Research
SAMHSA--Associate Administrator for Management
PART 307_ACQUISITION PLANNING
Subpart 307.1_Acquisition Plans
Sec.
Sec. 307.104 General procedures.
Sec. 307.105 Contents of written acquisition plans.
Sec. 307.170 Program training requirements.
Sec. 307.170-1 Policy exceptions.
Sec. 307.170-2 Training course prerequisites.
Subpart 307.3_Contractor Versus Government Performance
Sec. 307.302 General.
Sec. 307.303 Determining availability of private commercial sources.
Sec. 307.304 Procedures.
Sec. 307.307 Appeals.
Subpart 307.70_Considerations in Selecting an Award Instrument
Sec. 307.7000 Scope of subpart.
Sec. 307.7001 Distinction between acquisition and assistance.
Sec. 307.7002 Procedures.
Subpart 307.71_Requests for Contract
Sec. 307.7100 Scope of subpart.
Sec. 307.7101 General.
Sec. 307.7102 Procedures.
Sec. 307.7103 Responsibilities.
Sec. 307.7104 Transmittal.
Sec. 307.7105 Format and content.
Sec. 307.7106 Statement of work.
Sec. 307.7107 Review.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4226, Jan. 17, 2001, unless otherwise noted.
Subpart 307.1_Acquisition Planning
Sec. 307.104 General procedures.
(d) Each contracting activity shall prepare an Annual Acquisition
Plan
[[Page 17]]
(AAP). The AAP is a macro plan, containing a list of anticipated
contract actions over the simplified acquisition threshold and their
associated funding, as well as the aggregate planned dollars for
simplified acquisitions by quarter, developed for each fiscal year. The
AAP shall conform to reasonable budget expectations and shall be
reviewed at least quarterly and modified as appropriate. The chief of
the contracting office (CCO) shall obtain this information from the
program planning/budget office of the contracting activity and use the
AAP to provide necessary reports and monitor the workload of the
contracting office. For contract actions, the plan shall contain, at a
minimum:
(1) A brief description (descriptive title, perhaps one or two
sentences if necessary);
(2) Estimated award amount;
(3) Requested award date;
(4) Name and phone number of contact person (usually the project
officer);
(5) Other information required for OPDIV needs.
(e) Once the AAP is obtained, the contracting officer/contract
specialist shall initiate discussions with the assigned project officer
for each planned negotiated acquisition over $100,000 except for:
(1) Acquisitions made under interagency agreements, and
(2) Contract modifications which exercise options, make changes
authorized by the Changes clause, or add funds to an incrementally
funded contract. (The HCA may prescribe procedures for contract actions
not covered by this subpart.)
(f) The purpose of the discussions between the contracting and
project officers is to develop an individual acquisition planning
schedule and to address the things that will need to be covered in the
request for contract (RFC), including clearances, acquisition strategy,
sources, etc. The project officer must either have a statement of work
(SOW) ready at this time or must discuss in more detail the nature of
the services/supplies that will be required.
(g) Standard lead-times for processing various types of acquisitions
and deadlines for submission of acceptable RFCs (that is, RFCs which
include all required elements such as clearances, funding documents, and
an acceptable SOW) for award in a given fiscal year shall be established
by the HCA or designee not lower than the CCO.
(h) The outcome of the discussions referenced in paragraph (f) of
this section between the project officer and the contracting officer/
contracting specialist will be an agreement concerning the dates of
significant transaction-specific acquisition milestones, including the
date of submission of the RFC to the contracting officer. This milestone
schedule document will be prepared with those dates and will be signed
by the project officer and the contracting officer. The milestones
cannot be revised except by mutual agreement of these same individuals.
If the planning schedule indicates the need to obtain approval of a
Justification for Other than Full and Open Competition, the CCO must
sign the milestone agreement. This document shall be retained in the
contract file. All other considerations that will affect the acquisition
(technical, business, management) shall be addressed in the RFC (see
307.71).
Sec. 307.105 Contents of written acquisition plans.
The written acquisition plan required by FAR 7.105 must be contained
in the request for contract, as specified in subpart 307.71, and is the
final product of the planning process.
Sec. 307.170 Program training requirements.
(i) All program personnel selected to serve as project officers for
HHS contracts shall have successfully completed either the Department's
appropriate ``Basic Project Officer'' course, or an equivalent course
(see paragraph (c) of this section).
(b) At least fifty percent of the HHS program personnel performing
the function of technical proposal evaluator on a technical evaluation
team or panel for any competitively solicited HHS contract shall have
successfully completed the appropriate ``Basic Project Officer'' course,
or an equivalent course (see paragraph (c) of this section). This
requirement applies to
[[Page 18]]
the initial technical proposal evaluation and any subsequent technical
evaluations that may be required.
(c) Determination of course equivalency shall be made by the HCA
(not delegable) of the cognizant contracting activity. The contracting
officer is responsible for ensuring that the project officer and
technical proposal evaluators have successfully completed the required
training discussed in 307.170-2.
Sec. 307.170-1 Policy exceptions.
In the event there is an urgent requirement for a specific
individual to serve as a project officer and that individual has not
successfully completed the prerequisite training course, the HCA (not
delegable) may waive the training requirement and authorize the
individual to perform the project duties, provided that:
(a) The individual first meets with the cognizant contracting
officer to review the DHHS Project Officers' Contracting Handbook,'' and
to discuss the important aspects of the contracting--program office
relationship as appropriate to the circumstances; and
(b) The individual attends the next scheduled and appropriate
``Basic Project Officer'' course.
Sec. 307.170-2 Training course prerequisites.
(a) Project officers. (1) Newly appointed project officers, and
project officers with less than three years experience and no previous
related training, are required to take the appropriate ``Basic Project
Officer'' course. (The grade level for project officers attending the
course should be GS-7 and above.) All project officers are encouraged to
take the appropriate ``Writing Statements of Work'' course.
(2) Project officers with more than three years experience, and
project officers with less than three years experience who have
successfully completed the appropriate basic course, are qualified (and
encouraged) to take the ``Advanced Project Officer'' course.
(3) Additional information on prerequisites for attendance of these
courses may be found in the ``DHHS Acquisition Training and
Certification Program Handbook.''
(b) Technical proposal evaluators. Technical proposal evaluators,
regardless of experience, are required to take the appropriate ``Basic
Project Officer'' course or its equivalent. Upon successful completion
of the basic course, it is recommended that they take the appropriate
``Advanced Project Officer'' course. Peer and objective reviewers are
excluded from these requirements.
Subpart 307.3_Contractor Versus Government Performance
Sec. 307.302 General.
(a) General Administration Manual (GAM) Chapter 18-10, Commercial-
Industrial Activities of the Department of Health and Human Services
Providing Products or Services for Government Use, assigns
responsibilities for making method-of-performance decisions (contract
vs. in-house performance) to various management levels within the
Department depending on the dollar amount of capital investment or
annual operating costs. It also requires that each operating division
(OPDIV) and staff division (STAFFDIV) designate a ``Commercial-
Industrial Control Officer'' (CICO) to be responsible for ensuring
compliance with the requirements of the Chapter.
Sec. 307.303 Determining availability of private commercial sources.
In accordance with the provisions of GAM Chapter 18-10, OPDIVs and
STAFFDIVs must prepare and maintain a complete inventory of all
individual commercial or industrial activities. They must also conduct
periodic reviews of each activity and contract in the inventory to
determine if the existing performance, in-house or by contract,
continues to be in accordance with the policy guidelines of GAM Chapter
18-10.
Sec. 307.304 Procedures.
Contracting officers shall ensure that no acquisition action
involving a commercial-industrial activity is initiated unless it is in
compliance with the requirements of GAM Chapter 18-10. The contracting
officer must check each request for contract expected to result in a
contract in excess of $100,000 to ensure that it contains a statement as
to
[[Page 19]]
whether the proposed contract is or is not subject to review under GAM
Chapter 18-10 requirements. If the contracting officer has any questions
regarding the determination of applicability or nonapplicability, or if
the required statement is missing, the program office submitting the
request for contract should be contacted and the situation rectified. If
the issue cannot be resolved with the program office, the contracting
office shall refer the matter to the CICO for a final determination. The
HCA is responsible for ensuring that contracting activities are in full
compliance with FAR Subpart 7.3.
Sec. 307.307 Appeals.
The review and appeals procedure discussed in FAR 7.307 are
addressed in GAM Chapter 18-10.
Subpart 307.70_Considerations in Selecting an Award Instrument
Sec. 307.7000 Scope of subpart.
This subpart provides guidance on the appropriate selection of award
instruments consistent with 31 U.S.C. 6301-6308. This subpart explains
the use of the contract as the award instrument for acquisition
relationships, and the grant or cooperative agreement as the instrument
for assistance relationships. This subpart provides guidance for
determining whether to use the acquisition or assistance process to
fulfill program needs.
Sec. 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 recipients to accomplish a public purpose of
support or stimulation authorized by Federal statute.
(b) A contract is to be used as the legal instrument to reflect a
relationship between the Federal Government and a recipient whenever:
(1) The 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 Federal Government; or
(2) The Department determines in a specific instance that the use of
a type of contract is appropriate. That is, it is determined 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 only with the prior approval of the Deputy Assistant
Secretary for Grants and Acquisition Management (DASGAM).
(c) A grant or cooperative agreement is to be used as the legal
instrument to reflect a relationship between the Federal Government and
a recipient whenever the principal purpose of the relationship is the
transfer of money, property, services, or anything of value to the
recipient to accomplish a public purpose of support or stimulation
authorized by Federal statute.
(1) A grant is the legal instrument to be used when no substantial
involvement is anticipated between the Department and the recipient
during performance of the contemplated activity.
(2) A cooperative agreement is the legal instrument to be used when
substantial involvement is anticipated between the Department and the
recipient during performance of the contemplated activity.
(d) As a general rule, contracts are to be used 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.
[[Page 20]]
(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) Planning for Government use.
(7) Production of publications or audiovisual materials required
primarily for the conduct of the direct operations of the Government.
(8) Design or development of items for Government use or pursuant to
agency definition or specifications.
(9) Conferences conducted on behalf of the Government.
(10) Generation of management information or other data for
Government use.
Sec. 307.7002 Procedures.
(a) OPDIV program officials should use existing budget and program
planning procedures to propose new activities and major changes in
ongoing programs. It is the responsibility of these program officials to
meet with the HCA and the principal grants management official, or their
designees, to distinguish the relationships and determine whether award
is to be made through the acquisition process or assistance process.
This determination should be made prior to the time when the annual
acquisition plan is reviewed and approved so that the plan will reflect
all known proposed contract actions. The cognizant contracting officer
will confirm the appropriateness of the use of the contract instrument
when reviewing the request for contract.
(b) Shifts from one award instrument to another must be fully
documented in the appropriate files to show a fundamental change in
program purpose that unequivocally justifies the rationale for the
shift.
(c) OPDIVs must ensure that the choice of instrument is determined
in accordance with 31 U.S.C. 6301-6308 and applicable departmental
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, guidance should be obtained from the
DASGAM, through normal channels, before proceeding with a determination.
(d) Any public notice, program announcement, solicitation, or
request for applications or proposals must indicate whether the intended
relationship will be one of acquisition or assistance and specify the
award instrument to be used.
Subpart 307.71_Requests for Contract
Sec. 307.7100 Scope of subpart.
This subpart prescribes the format and contents of the request for
contract (RFC) and provides procedures for its preparation and
submission.
Sec. 307.7101 General.
The program office's preparation of the RFC and submission to the
contracting office completes the presolicitation phase of the
acquisition planning process and commences the solicitation phase. The
RFC is the formal document which initiates the preparation of the
solicitation by the contracting office and sets the acquisition process
in motion. It is the result of the planning by the project officer and
contracting officer and contains much of the pertinent information
necessary for the development of a sound, comprehensive solicitation.
Sec. 307.7102 Procedures.
The program office should submit the RFC to the contracting office
no later than the date agreed to by the contracting officer and the
project officer in the milestone schedule (see 307.104(h)), unless a
revised due date has been established by mutual agreement.
Sec. 307.7103 Responsibilities.
(a) It is the responsibility of the project officer to prepare the
RFC so that it complies with the requirements of this subpart and any
OPDIV guidance issued in accordance with this subpart.
(b) Prior to the submission of the RFC to the contracting office,
the head of the program office sponsoring the project shall review the
RFC to ensure
[[Page 21]]
that all required information is provided in the prescribed format, and
a technical review of the statement of work has been made. The level and
extent of the technical review is to be commensurate with the estimated
cost, importance, and complexity of the proposed acquisition, and must
be thorough enough to ensure that vague and ambiguous language is
eliminated, the statement of work is structured by phases or tasks, if
appropriate, and methods are available for assessing the contractor's
technical, cost, and delivery performance.
Sec. 307.7104 Transmittal.
The RFC must be conveyed to the contracting office by use of a
covering memorandum or other form of transmittal. The transmittal
document must be signed by the head of the sponsoring program office and
include both a statement attesting to the conclusiveness of the review
described in 307.7103(b) and a list identifying all attachments to the
RFC.
Sec. 307.7105 Format and content.
The Department does not prescribe a standard format for the RFC. A
format similar to what is in this section is recommended. However, any
document or group of documents will be acceptable as an RFC as long as
all of the required information (paragraph (a) of this section), and as
much of the optional information (paragraph (b) of this section) as is
relevant, is included.
(a) The RFC must include:
(1) Purpose of the contract. A brief, general description of the
requirement, including the citation of the legislation which authorizes
the program or project, and a statement as to the intended purpose/use
of the proposed contract.
(2) Period of performance. The number of months (or other time
period) required for total performance and, if applicable, for each
phase of work indicated in the statement of work, as well as the
proposed starting date.
(3) Estimated cost and funds citation. An estimate of the total cost
of the proposed contract and, if applicable, the estimate for each phase
indicated in the statement of work. The project officer must provide a
cost breakdown of all contributing cost factors, an estimate of the
technical staff hours, direct material, subcontracting, travel, etc.,
and may consult with contracting and cost advisory personnel in
developing this information. This section must include the certification
of funds availability for the proposed acquisition, along with the
appropriation and accounting information citations. When funds for the
proposed acquisition are not currently available for obligation but are
anticipated, a statement of intent to commit funds from the financial
management officer shall be included in lieu of the certification of
funds availability. (Contracts cannot be awarded unless funds are
available, but see FAR 32.703-2).
(4) Specification, purchase description, or statement or work. A
description of the work to be performed that may be in the form of a
specification, purchase description, or statement of work. Guidance
concerning the statement of work and its contents is contained in
307.7106. Use of the specification is primarily limited to supply or
service contracts where the material end item or service to be delivered
is well defined by the Government. To the maximum extent possible,
requirements should be defined as performance-based statements of work
that focus on outcomes or results. If the RFC for a service contract is
not utilizing a performance-based statement of work, with associated
measures and a quality surveillance plan, the rationale for this
determination must be documented. If a performance-based service
contract is utilized, the RFC must detail the performance standards that
must be met, the quality surveillance plan that will be implemented and
the performance incentives to be used, if applicable.
(5) Schedule of deliverables/reporting requirements. A description
of what is to be delivered, including, if applicable, technical and
financial progress reports and any final report, and the required date
of delivery for each deliverable. Reporting requirements should be
tailored to the instant acquisition and should not be unnecessarily
extensive or detailed. All delivery and reporting requirements shall
include the quantities, the place of delivery, and time of delivery.
[[Page 22]]
(6) Sources for solicitation. A list of known potential sources by
name, size, type of ownership, and mailing address. The project officer
is encouraged to use trade and professional journals and publications
and conduct a thorough market research to identify new prospective
sources to supplement the list of known sources. Efforts to identify
set-aside possibilities, e.g., 8(a), HUBZone, and small business, and
efforts to identify sources such as small disadvantaged and women-owned
small businesses must be documented.
(7) Project officer and alternate. The project officer's name,
title, organization, mailing address, and telephone number, along with
the same data for the project officer's alternate, and a statement that
these individuals have completed the Department's project officer
training course (see 307.l70)
(b) The RFC must include, if applicable to the acquisition:
(1) Background and need. The background, history, and necessity for
the proposed contract. This section is to include prior, present, and
planned efforts by the program office in the same or related areas, and
a description of efforts by other departmental activities and Federal
agencies in the same or related program areas, if known. In addition,
specific project information, such as the relevance or contribution to
overall program objectives, reasons for the need, priority, and project
overlap are to be provided.
(2) Reference materials. A list, by title and description, of study
reports, plans, drawings, and other data to be made available to
prospective offerors for use in preparation of proposals and/or the
contractor for use in performance of the contract. The project officer
must indicate whether this material is currently available or when it
will be available, and how it may be accessed by potential offerors.
(3) Technical evaluation criteria and instructions. Technical
evaluation criteria, which have been developed based on the requirements
of the specific project, and any instructions and information which will
assist in the preparation of prospective offerors' technical proposals.
Evaluation factors may include understanding of the problem, technical
approach, experience, personnel, facilities, etc. Criteria areas
discussed in the statement of work and the relative order of importance
or weights assigned to each of these areas for technical evaluation
purposes must be identified.
(4) Special program clearances or approvals. Any required clearance
or approval. The following special program clearances or approvals
should be reviewed for applicability to each acquisition. The ones which
are applicable should be addressed during the planning discussions
between the project officer and contracting officer/contract specialist
(see 307.104(f)) and immediate action should be initiated by the project
officer to obtain the necessary clearances or approvals. Comprehensive
checklists of these and any OPDIV special approvals, clearances, and
requirements shall be provided for reference purposes to program offices
by the servicing contracting activity. If the approval or clearance has
been requested and is being processed at the time of RFC submission, a
footnote to this effect, including all pertinent details, must be
included in this section.
(i) Commercial activities. (OMB Circular No. A-76). A request for
contract (RFC) must contain a statement as to whether the proposed
solicitation is or is not to be used as part of an OMB Circular No. A-76
cost comparison. (See General Administration Manual (GAM) Chapter 18-10;
FAR subpart 7.3, subpart 307.3; OMB Circular No. A-76.)
(ii) Printing. The acquisition of printing and high volume
duplicating by contract is prohibited unless it is authorized by the
Joint Committee on Printing of the U.S. Congress. Procedures to be
followed are contained in the ``Government Printing and Binding
Regulations'' and the HHS Printing Management Manual and FAR subpart
8.8.
(iii) Paperwork Reduction Act. Under the Paperwork Reduction Act of
1995, a Federal agency shall not collect information or sponsor the
collection of information from ten or more persons (other than Federal
employees acting within the scope of their employment) unless, in
advance, the agency has submitted a request for Office of Management and
Budget (OMB) review, to the OMB, and the OMB has approved the
[[Page 23]]
proposed collection of information. Procedures for the approval may be
obtained by contacting the OPDIV reports clearance officer. (See 5 CFR
part 1320).
(iv) Publications. All projects that will result in contracts which
include publications development (print products, electronic bulletin
boards, posting on the internet) require review and approval by the
Office of the Assistant Secretary for Public Affairs (OASPA). Form HHS-
615, Publication Planning and Clearance Request, must be forwarded to
OASPA through the OPDIV public affairs officer. Publications are defined
in Chapter 5-00-15 of the Public Affairs Management Manual.
(v) Public affairs services. Projects for the acquisition of public
affairs services in excess of $5,000 must be submitted to the Office of
the Assistant Secretary for Public Affairs (OASPA) for review and
approval on Form HHS-524, Request for Public Affairs Services Contract.
(vi) Audiovisual. All projects which will result in contracts which
include audiovisuals, regardless of the audio, video, or audiovisual
medium employed, require review and approval by the Office of the
Assistant Secretary for Public Affairs (OASPA). Form HHS-524A,
Publication Planning and Clearance Request, must be forwarded to OASPA
through the OPDIV public affairs officer. Audiovisuals are defined in
chapter 6-00-15 of the Public Affairs Management Manual.
(vii) Privacy Act (5 U.S.C. 552a). Whenever the Department contracts
for the design, development, operation, or maintenance of a system of
records on individuals on behalf of the Department to accomplish a
departmental function, the Privacy Act is applicable. The program
official, after consultation with the activity's Privacy Act Coordinator
and the Office of General Counsel, as necessary, shall include a
statement in the request for contract as to the applicability of the
Act. Whenever an acquisition is subject to the Act, the program official
prepares a ``system notice'' and has it published in the Federal
Register. (See HHS Privacy Act regulation, 45 CFR part 5b; FAR subpart
24.1 and subpart 324.1.)
(viii) Foreign research. All foreign research contract projects to
be conducted in a foreign country and financed by HHS funds (U.S.
dollars) must have clearance by the Department of State with respect to
consistency with foreign policy objectives. This clearance should be
obtained prior to negotiation. Procedures for obtaining this clearance
are set forth in the HHS General Administration Manual, Chapter 20-60.
(5) Identification and disposition of data. Identification of the
data expected to be generated by the acquisition and an indication of
whether the data are to be delivered to the Department or to be retained
by the contractor is required. The project officer must also include
information relative to the use, maintenance, disclosure, and
disposition of data. The project officer must include a statement as to
whether or not another acquisition, based upon the data generated by the
proposed acquisition, is anticipated.
(6) Government property. If known, the type of Government property,
individual items, and quantities of Government property to be furnished
to, or allowed to be acquired by, the resultant contractor should be
indicated. The project officer must specify when the Government property
is to be made available.
(7) Special terms and conditions. Any suggested special terms and
conditions not already covered in the statement of work or the
applicable contract general provisions is required.
(8) Justification for other than full and open competition. If the
proposed acquisition is to be awarded using other than full and open
competition, a justification prepared in accordance with FAR subpart 6.3
and subpart 306.3 is required.
Sec. 307.7106 Statement of work.
(a) General. A statement of work (SOW) differs from a specification
and purchase description primarily in that it describes work or services
to be performed in reaching an end result rather than a detailed, well
defined description or specification of the end product. The SOW may
enumerate or describe the methods (statistical, clinical, laboratory,
etc.) that will be used.
[[Page 24]]
However, it is preferable for the offeror to propose the method of
performing the work. The SOW should specify the desired results,
functions, or end items without telling the offeror what has to be done
to accomplish those results unless the method of performance is critical
or required for the successful performance of the contract. The SOW
should be clear and concise and must completely define the
responsibilities of the Government and the contractor. The SOW should be
worded so as to make more than one interpretation virtually impossible
because it has to be read and interpreted by persons of varied
backgrounds, such as attorneys, contracting personnel, cost estimators,
accountants, scientists, educators, functional specialists, etc. The SOW
must clearly define the obligations of both the contractor and the
Government so as to protect the interests of both. Ambiguous statements
of work can create unsatisfactory performance, delays, and disputes, and
can result in higher costs.
(b) Term (level of effort) vs. completion work statement. Careful
distinctions must be drawn between term (level of effort) SOWs, which
essentially require the furnishing of technical effort and which may
include a report thereof, and completion type work statements, which
require development of tangible items designed to meet specific
performance and/or design characteristics. (See FAR 16.306(d) for
distinction).
(1) Term (or level of effort). A term or level of effort type SOW is
appropriate for research where one seeks to discover the feasibility of
later development, or to gather general information. A term or level of
effort type SOW may only specify 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 type SOW is appropriate to development
work where the feasibility of producing an end item is already known. A
completion type 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 must be completed and approved before the
contractor may proceed to the next. 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
may include stages of accomplishment such as research, development, and
demonstration. Within each phase, there may be a number of tasks which
should be included in the SOW. When phases of work can be identified,
the SOW will provide for phasing and the request for proposals will
require the submission of proposed costs by phases. The resultant
contract will 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 provisions
of the Limitation of Cost clause shall apply to the estimated cost of
each phase. Contractors shall not be allowed to incur costs for phases
which are dependent upon successful completion of earlier phases until
written acceptance of the prior work is obtained from the contracting
officer.
(d) Elements of the SOW. The elements of the SOW will vary with the
objective, complexity, size, and nature of the acquisition. In general,
it should cover the following matters as appropriate.
(1) A general description of the required objectives and desired
results. Initially, a broad, nontechnical statement of the nature of the
work to be performed. This should summarize the actions to be performed
by the contractor and the results that the Government expects.
[[Page 25]]
(2) Background information helpful to a clear understanding of the
requirements and how they evolved. Include a brief historical summary as
appropriate and the relationship to overall program objectives.
(3) A detailed description of the technical requirements. A
comprehensive description of the work to be performed to provide
whatever details are necessary for prospective offerors to submit
meaningful proposals.
(4) Subordinate tasks or types of work. A listing of the various
tasks or types of work (it may be desirable in some cases to indicate
that this is not all-inclusive). The degree of task breakout is directly
dependent on the size and complexity of the work to be performed and the
logical groupings. A single cohesive task should not be broken out
merely to conform to a format. Indicate whether the tasks are sequential
or concurrent for offeror planning purposes.
(5) Reference material. All reference material to be used in the
conduct of the project that tells how the work is to be carried out must
be identified. Applicability should be explained, and a statement made
as to where the material can be obtained.
(6) Level of effort. When a level of effort is required, the number
and type of personnel required should be stated. If known, the type and
degree of expertise should be specified.
(7) Special requirements. (as applicable). An unusual or special
contractual requirement, which would impact on contract performance,
should be included as a separate section.
(8) Deliverables reporting requirements. All deliverables and/or
reports must be clearly and completely described.
Sec. 307.7107 Review.
Upon receipt of the RFC, the contracting officer shall review its
contents to ensure that all pertinent information has been provided by
the program office and that it includes an acceptable SOW. If pertinent
information is missing or the SOW is inadequate, the contracting officer
shall obtain or clarify the information as soon as possible so that the
acquisition schedule can be met. If the program office delays furnishing
the information or clarification, the contracting officer should notify
the head of the sponsoring program office, in writing, of the possible
slippage in the acquisition schedule and the need for an expeditious
remedy. The contracting officer should also notify the chief of the
contracting office. A program office's or project officer's continued
failure to adhere to agreed on milestones should also be reported to the
head of the contracting activity.
PART 309_CONTRACTOR QUALIFICATIONS
Subpart 309.4_Debarment, Suspension, and Ineligibility
Sec.
Sec. 309.403 Definitions.
Sec. 309.404 List of Parties Excluded from Federal Procurement and
Nonprocurement Programs.
Sec. 309.405 Effect of listing.
Sec. 309.406 Debarment.
Sec. 309.406-3 Procedures.
Sec. 309.407 Suspension.
Sec. 309.407-3 Procedures.
Sec. 309.470 Reporting of suspected causes for debarment, suspension,
or the taking of evasive actions.
Sec. 309.470-1 Situations where reports are required.
Sec. 309.470-2 Contents of reports.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4231, Jan. 17, 2001, unless otherwise noted.
Subpart 309.4_Debarment, Suspension, and Ineligibility
Sec. 309.403 Definitions.
Acquiring agency's head or designee, as used in the FAR, shall mean,
unless otherwise stated in this subpart, the head of the contracting
activity. Acting in the capacity of the acquiring agency's head, the
head of the contracting activity may make the required justifications or
determinations, and take the necessary actions, specified in FAR 9.405,
9.406 and 9.407 for his or her respective activity, but only after
obtaining the written approval of the debarring or suspending official,
as the case may be.
Debarring official means the Assistant Secretary for Management and
Budget, or his/her designee.
[[Page 26]]
Initiating official means either the contracting officer, the head
of the contracting activity, the Deputy Assistant Secretary for Grants
and Acquisition Management, or the Inspector General.
Suspending official means the Assistant Secretary for Management and
Budget, or his/her designee.
Sec. 309.404 List of Parties Excluded from Federal Procurement and
Nonprocurement Programs.
(c) The Office of Grants and Acquisition Management (OGAM) shall
perform the actions required by FAR 9.404(c).
(4) OGAM shall maintain all documentation submitted by the
initiating official recommending the debarment or suspension action and
all correspondence and other pertinent documentation generated during
the OGAM review.
Sec. 309.405 Effect of listing.
(a) The head of the contracting activity (HCA) (not delegable) may,
with the written concurrence of the debarring or suspending official,
make the determinations referenced in FAR 9.405(a), regarding contracts
for their respective activities.
(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 acquisition
channels to the head of the contracting activity. The documentation must
include the date by which approval is required and a compelling reason
for the proposed action. Some examples of circumstances that may
constitute a compelling reason for the award to, or consent to a
subcontract with, a debarred or suspended contractor include:
(i) The property or services to be acquired are available only from
the listed contractor;
(ii) The urgency of the requirement dictates that the Department
deal with the listed contractor; or
(iii) There are other compelling reasons which require business
dealings with the listed contractor.
(2) If the HCA decides to approve the requested action, he/she 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.
Sec. 309.406 Debarment.
Sec. 309.406-3 Procedures.
(a) Investigation and referral. Whenever an apparent cause for
debarment becomes known to an initiating official, that person shall
prepare a report incorporating the information required by 309.470-2, if
known, and forward it through appropriate channels with a written
recommendation, to the debarring official. Contracting officers shall
forward their reports in accordance with 309.470-1. The debarring
official shall initiate an investigation through such means as he/she
deems appropriate.
(b) Decisionmaking process. The debarring official shall review the
results of the investigation, if any, and make a written determination
whether or not debarment procedures are to be commenced. A copy of the
determination shall be promptly sent through appropriate channels to the
initiating official, and the contracting officer, if necessary. If the
debarring official determines to commence debarment procedures, he/she
shall, after consultation with the Office of the General Counsel, notify
the contractor in accordance with FAR 9.406-3(c). If the proposed action
is not based on a conviction or judgement 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 Office of the General Counsel shall represent
the Department at any fact-
[[Page 27]]
finding hearing and may present witnesses for HHS and question any
witnesses presented by the contractor.
Sec. 309.407 Suspension.
Sec. 309.407-3 Procedures.
(a) Investigation and referral. Whenever an apparent cause for
suspension becomes known to an initiating official, that person shall
prepare a report incorporating the information required by 309.470-2, if
known, and forward it through appropriate channels, with a written
recommendation, to the suspending official. Contracting officers shall
forward their reports in accordance with 309.470-1. The suspending
official shall initiate an investigation through such means as he/she
deems appropriate.
(b) Decisionmaking process. The suspending official shall review the
results of the investigation, if any, and make a written determination
whether or not suspension should be imposed. A copy of this
determination shall be promptly sent through appropriate channels to the
initiating official and the contracting officer, if necessary. If the
suspending official determines to impose suspension, he/she shall, after
consultation with the Office of the General Counsel, 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 suspension has been imposed, arrange for fact-finding
hearings and take the necessary actions specified in FAR 9.407-3(b)(2).
Sec. 309.470 Reporting of suspected causes for debarment or suspension,
or the taking of evasive actions.
Sec. 309.470-1 Situations where reports are required.
A report incorporating the information required by 309.470-2 shall
be forwarded, in duplicate, by the contracting officer through
acquisition channels to OGAM when:
(a) A contractor 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) A contractor 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.
Sec. 309.470-2 Contents of reports.
Each report prepared under 309.470-1 shall be coordinated with the
Office of the General Counsel and shall include the following
information, where available:
(a) Name and address of contractor.
(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 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 action of the contractor, including an explanation of the
method used in making the estimate.
(k) The comments and recommendations of the contracting officer and
statements regarding whether the contractor should be suspended or
debarred, whether any limitations
[[Page 28]]
should be applied to the action, 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 29]]
SUBCHAPTER C_CONTRACTING METHODS AND CONTRACT TYPES
PART 313_SIMPLIFIED ACQUISITION PROCEDURES
Subpart 313.3_Simplified Acquisition Methods
Sec.
Sec. 313.301 Governmentwide commercial purchase card.
Sec. 313.303 Blanket Purchase Agreements (BPAs).
Sec. 313.303-5 Purchases under BPAs.
Sec. 313.305 Imprest funds and third party drafts.
Sec. 313.305-1 General.
Sec. 313.306 SF 44, Purchase Order--Invoice--Voucher.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4233, Jan. 17, 2001, unless otherwise noted.
Subpart 313.3_Simplified Acquisition Methods.
Sec. 313.301 Governmentwide commercial purchase card.
(b) The Department has issued general guidance concerning the use of
governmentwide commercial purchase cards, and has authorized the OPDIVs
to establish procedures for the use, administrative and management
controls, and training necessary to comply with FAR 13.301.
Sec. 313.303 Blanket Purchase Agreements (BPAs).
Sec. 313.303-5 Purchases under BPAs.
(e)(5) Delivery documents, invoices, etc., signed by the Government
employee receiving the item or service will be forwarded to the fiscal
office or other paying office as designated by the OPDIV. Payment will
be made on the basis of the signed document, invoice, etc. Contracting
offices will ensure that established procedures allowing for
availability of funds are in effect prior to placement of orders.
Sec. 313.305 Imprest funds and third party drafts.
Sec. 313.305-1 General.
Requests to establish imprest funds shall be made to the responsible
fiscal office. At larger activities where the cashier may not be
conveniently located near the purchasing office, a Class C Cashier may
be installed in the purchasing office. Documentation of cash purchases
shall be in accordance with instructions contained in the HHS Voucher
Audit Manual Part 1, Chapter 1-10.
Sec. 313.306 SF 44, Purchase Order--Invoice--Voucher.
(d) Since the Standard Form (SF) 44 is an accountable form, a record
shall be maintained of serial numbers of the form, to whom issued, and
date issued. SF 44's shall be kept under adequate lock and key to
prevent unauthorized use. A reservation of funds shall be established to
cover total anticipated expenditures prior to use of the SF 44.
PART 314_SEALED BIDDING
Subpart 314.2_Solicitation of Bids
Sec.
Sec. 314.202 General rules for solicitation of bids.
Sec. 314.202-7 Facsimile bids.
Sec. 314.213 Annual submission of representations and certifications.
Subpart 314.4_Opening of Bids and Award of Contract
Sec. 314.404 Rejection of bids.
Sec. 314.404-1 Cancellation of invitations after opening.
Sec. 314.407 Mistakes in bids.
Sec. 314.407-3 Other mistakes disclosed before award.
Sec. 314.407-4 Mistakes after award.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4233, Jan. 17, 2001, unless otherwise noted.
[[Page 30]]
Subpart 314.2_Solicitation of Bids
Sec. 314.202 General rules for solicitation of bids.
Sec. 314.202-7 Facsimile bids.
If the head of the contracting activity (HCA) (not delegable) has
determined that the contracting activity will allow use of facsimile
bids and proposals, the HCA shall prescribe internal procedures, in
accordance with the FAR, to ensure uniform processing and control.
Sec. 314.213 Annual submission of representations and certifications.
Each HCA (not delegable) shall determine whether the contracting
activity will allow use of the annual submission of representations and
certifications by bidders.
Subpart 314.4_Opening of Bids and Award of Contract
Sec. 314.404 Rejection of bids.
Sec. 314.404-1 Cancellation of invitations after opening.
The chief of the contracting office (CCO) (not delegable) shall make
the determinations required to be made by the agency head in FAR 14.404-
1.
Sec. 314.407 Mistakes in bids.
Sec. 314.407-3 Other mistakes disclosed before award.
(e) Authority has been delegated to the Departmental Protest Control
Officer, Office of Acquisition Management, Office of Grants and
Acquisition Management, to make administrative determinations in
connection with mistakes in bid alleged after opening and before award.
This authority may not be redelegated.
(f) Each proposed determination shall have the concurrence of the
Chief, Business Law Branch, Business and Administrative Law Division,
Office of General Counsel.
(i) Doubtful cases shall not be submitted by the contracting officer
directly to the Comptroller General, but shall be submitted to the
Departmental Protest Control Officer.
Sec. 314.407-4 Mistakes after award.
(c) Authority has been delegated to the Departmental Protest Control
Officer to make administrative determinations in connection with
mistakes in bid alleged after award. This authority may not be
redelegated.
(d) Each proposed determination shall have the concurrence of the
Chief, Business Law Branch, Business and Administrative Law Division,
Office of the General Counsel.
PART 315_CONTRACTING BY NEGOTIATION
Subpart 315.2_Solicitation and Receipt of Proposals and Information
Sec.
Sec. 315.204 Contract format.
Sec. 315.204-5 Part IV--Representations and instructions.
Sec. 315.208 Submission, modification, revision, and withdrawal of
proposals.
Sec. 315.209 Solicitation provisions and contract clauses.
Subpart 315.3_Source Selection
Sec. 315.305 Proposal evaluation.
Sec. 315.306 Exchanges with offerors after receipt of proposals.
Sec. 315.307 Proposal revisions.
Sec. 315.370 Finalization of details with the selected source.
Sec. 315.371 Contract preparation and award.
Sec. 315.372 Preparation of negotiation memorandum.
Subpart 315.4_Contract Pricing
Sec. 315.404 Proposal analysis.
Sec. 315.404-2 Information to support proposal analysis.
Sec. 315.404-4 Profit.
Subpart 315.6_Unsolicited Proposals
Sec. 315.605 Content of unsolicited proposals.
Sec. 315.606 Agency procedures.
Sec. 315.606-1 Receipt and initial review.
Sec. 315.609 Limited use of data.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4233, Jan. 17, 2001, unless otherwise noted.
[[Page 31]]
Subpart 315.2_Solicitation and Receipt of Proposals and Information
Sec. 315.204 Contract format.
Sec. 315.204-5 Part IV--Representations and instructions.
(a) Section K, Representations, certifications, and other statements
of offerors.
(1) This section shall begin with the following and continue with
the applicable representations and certifications:
To Be Completed by the Offeror: (The Representations and
Certifications must be executed by an individual authorized to bind the
offeror.) The offeror makes the following Representations and
Certifications as part of its proposal (check or complete all
appropriate boxes or blanks on the following pages).
_______________________________________________________________________
(Name of Offeror)
_______________________________________________________________________
(RFP No.)
_______________________________________________________________________
(Signature of Authorized Individual)
_______________________________________________________________________
(Date)
_______________________________________________________________________
(Typed Name of Authorized Individual)
Note: The penalty for making false statements in offers is
prescribed in 18 U.S.C. 1001.
(c) Section M, Evaluation factors for award. (1) General. (i) The
evaluation factors must be developed by the project officer and
submitted to the contracting officer in the request for contract (RFC)
for inclusion in the request for proposal (RFP). Development of these
factors and the assignment of the relative importance or weight to each
require the exercise of judgment on a case-by-case basis because they
must be tailored to the requirements of the individual acquisition.
Since the factors will serve as a standard against which all proposals
will be evaluated, it is imperative that they be chosen carefully to
emphasize those considered to be critical in the selection of a
contractor.
(ii) The finalized evaluation factors cannot be changed except by a
formal amendment to the RFP issued by the contracting officer. No
factors other than those set forth in the RFP shall be used in the
evaluation of proposals.
(2) Review of evaluation factors. (i) The evaluation factors should
be reviewed by the contracting officer in terms of the work statement.
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 should then
review the evaluation factors together to ascertain the following:
(A) The factors are described in sufficient detail to provide the
offerors (and evaluators) with a total understanding of the factors to
be involved in the evaluation process;
(B) The factors address the key programmatic concerns which the
offerors must be aware of in preparing proposals;
(C) The factors are specifically applicable to the instant
acquisition and are not merely restatements of factors from previous
acquisitions which are not relevant to this acquisition; and
(D) The factors are selected to represent only the significant areas
of importance which must be emphasized rather than a multitude of
factors. (All factors tend to lose importance if too many are included.
Using too many factors will 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 are intended to assist in the development of actual evaluation
factors for a specific acquisition and should only be used if they are
applicable to that acquisition. They are not to be construed as actual
examples of evaluation factors to be included in the RFP.
(i) Understanding of the problem and statement of work:
(ii) Method of accomplishing the objectives and intent of the
statement of work;
(iii) Soundness of the scientific or technical approach for
executing the requirements of the statement of work
[[Page 32]]
(to include, 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 and/or practicality of successfully accomplishing
the requirements (to include 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, to include
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; and
(xi) Extent of proposed participation of small disadvantaged
business concerns in performance of the contract.
Sec. 315.208 Submission, modification, revision, and withdrawal of
proposals.
(b) When the head of the contracting activity (HCA) for a health
agency determines that certain classes of biomedical or behavioral
research and development acquisitions should be subject to conditions
other than those specified in FAR 52.215-1(c)(3), the HCA may authorize
the use of the provision at 352.215-70 in addition to the provision at
FAR 52.215-1. This is an authorized 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.
Sec. 315.209 Solicitation provisions and contract clauses.
(a) Paragraph (e) of the provision at 352.215-1 shall be used in
place of that specified at FAR 52.215-1(e). This is an authorized
deviation.
(g) If the head of the contracting activity (HCA)(not delegable) has
determined that the contracting activity will allow the use of the
annual submission of representations and certifications by offerors, the
provisions of FAR 14.213 shall be followed.
Subpart 315.3_Source Selection
Sec. 315.305 Proposal evaluation.
(a)(1) Cost or price evaluation. The contracting officer shall
evaluate business proposals adhering to the requirements for cost or
price analysis included in FAR 15.404. The contracting officer must
determine the extent of analysis in each case depending on the amount of
the proposal, the technical complexity, and related cost or price. The
contracting officer should request the project officer to analyze items
such as the number of labor hours proposed for various labor categories;
the mix of labor hours and categories of labor in relation to the
technical requirements of the project; the kinds and quantities of
material, equipment, and supplies; types, numbers and hours/days of
proposed consultants; logic of proposed subcontracting; analysis of the
travel proposed including number of trips, locations, purpose, and
travelers; and kinds and quantities of information technology. The
project officer
[[Page 33]]
shall provide his/her opinion as to whether these elements are necessary
and reasonable for efficient contract performance. Exceptions to
proposed elements shall be supported by adequate rationale to allow for
effective negotiations or award if discussions are not conducted. The
contracting officer should also request the assistance of a cost/price
analyst when considered necessary. In all cases, the negotiation
memorandum must include the rationale used in determining that the price
or cost is fair and reasonable.
(2) Past performance evaluation. When evaluating past performance,
the contracting officer is responsible for conducting reference checks
to obtain information concerning the performance history of offerors.
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) A technical evaluation plan may be required by the contracting
officer, at his/her discretion, when an acquisition is sufficiently
complex as to warrant a formal plan.
(B) The technical evaluation plan should include at least the
following:
(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 justification for using non-Government technical evaluation
panel members. (Justification is not required if non-Government
evaluators will be used in accordance with standard contracting activity
procedures or policies);
(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 be used to assure consistency with the evaluation criteria;
and
(5) A brief description of the general evaluation approach.
(C) The technical evaluation plan must be signed by an official
within the program office in a position at least one level above the
project officer, or in accordance with contracting activity procedures.
(D) The technical evaluation plan should be submitted to the
contracting officer for review and approval before the solicitation is
issued. The contracting officer shall make sure that the significant
factors and subfactors relating to the evaluation are reflected in the
evaluation criteria 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 which are expected to exceed
$500,000 and in which technical evaluation is considered a key element
in the award decision. The contracting officer has the discretion to
require a technical evaluation panel for acquisitions not exceeding
$500,000 based on the complexity of the acquisition.
(2) The technical evaluation process requires careful consideration
regarding the size, composition, expertise, and function of the
technical evaluation panel. The efforts of the panel can result in the
success or failure of the acquisition.
(B) Role of the project officer. (1) The project officer is the
contracting officer's technical representative for the acquisition
action. The project officer may be a voting member of the technical
evaluation panel, and may also serve as the chairperson of the panel,
unless he/she is prohibited by law or contracting activity procedures to
do so.
(2) The project officer is responsible for recommending panel
members who are knowledgeable in the technical aspects of the
acquisition and who are competent to identify strengths and weaknesses
of the various proposals. The program training requirements specified in
307.170 must be adhered to when selecting prospective panel members
(government employees).
(3) The project officer shall ensure that persons possessing
expertise and experience in addressing issues relative to sex, race,
national origin, and handicapped discrimination are included as panel
members in acquisitions which address those issues. The intent is to
balance the composition of the panel so
[[Page 34]]
that qualified and concerned individuals may provide insight to other
panel members regarding ideas for, and approaches to be taken in, the
evaluation of proposals.
(4) The project officer is to submit the recommended list of panel
members to an official within the program office in a position at least
one level above the project officer, or in accordance with contracting
activity procedures. This official will review the recommendations 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
his/her designated representative within the contracting office.
(2) The contracting officer shall not serve as a member of the
technical evaluation panel but should be available to:
(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,
he/she shall be removed from the panel and replaced with another
evaluator. 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 is responsible for evaluating the original proposals, making
recommendations to the chairperson regarding weaknesses and deficiencies
of proposals, and, if required by the contracting officer, assisting the
contracting officer during communications and discussions, and reviewing
supplemental, revised and/or final proposal revisions. To the extent
possible, the same evaluators should 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; or
(iii) The rankings of the offerors are not affected because the
revisions to the proposals are relatively minor.
(2) The chairperson, with the concurrence of the contracting
officer, may decide not to have the panel evaluate the revised
proposals. Whenever this decision is made, it must be fully documented
by the chairperson and approved by the contracting officer.
(3) When technical evaluation panel meetings are considered
necessary by the contracting officer, 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 and/or replace the individual after discussing the
situation with the contracting officer and obtaining his/her concurrence
and the approval of the official responsible for appointing the panel
members.
(4) Whenever continuity of the evaluation process is not possible,
and either new evaluators are selected or a reduced panel is decided
upon, each proposal which is being reviewed at any stage of the
acquisition shall be reviewed at that stage by all members of the
revised panel unless it is impractical to do so because of the receipt
of an unusually large number of proposals.
(F) Use of outside evaluators. (1) The National Institutes of Health
(NIH) and
[[Page 35]]
the Substance Abuse and Mental Health Services Administration (SAMHSA)
are required to have a peer review of research and development contracts
in accordance with Public Law 93-352 as amended by Public Law 94-63; 42
U.S.C. 289 a and 42 U.S.C. 290aa-3 respectively. This legislation
requires peer review of projects and proposals, and not more than one-
fourth of the members of a peer review group may be officers or
employees of the United States. NIH and SAMHSA are therefore exempt from
the provisions of 315.305(a)(3)(ii) to the extent that 42 U.S.C. 289a
and 290aa-3 apply. Conflicts of interest are addressed at 42 CFR part
52h. Other agencies subject to statutory scientific peer review
requirements are also exempt from the requirements of paragraph
(a)(3)(ii) of this section to the extent that these requirements are
inconsistent with their legislative requirements.
(2) In general, decisions to disclose proposals outside the
Government for evaluation purposes shall be made by the official
responsible for appointing panel members for the acquisition, after
consultation with the contracting officer and in accordance with
operating division procedures. The decision to disclose either a
solicited or unsolicited proposal outside the Government for the purpose
of obtaining an evaluation shall take into consideration the avoidance
of organizational conflicts of interest and any competitive relationship
between the submitter of the proposal and the prospective evaluator(s).
(3) When it is determined to disclose a solicited proposal outside
the Government for evaluation purposes, the following or similar
conditions shall be included in the written agreement with 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 only for evaluation
purposes.
The foregoing requirement does not apply to data obtained from
another source without restriction.
Any notice or legend placed on the proposal by either the Department
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 the Government
furnished copy of the proposal or abstract, and all copies thereof, to
the Departmental office which initially furnished the proposal for
evaluation.
Unless authorized by the Department's initiating office, the
evaluator shall not contact the submitter of the proposal concerning any
aspects of its contents.
The evaluator is obligated to obtain commitments from its employees
and subcontractors, as necessary, to effect the purposes of these
conditions.
(iii) Receipt of proposals.
(A) After the closing date set by the solicitation for the receipt
of proposals, the contracting officer will use a transmittal memorandum
to forward the technical proposals to the project officer or chairperson
for evaluation. The business proposals will be retained by the
contracting officer for evaluation.
(B) The transmittal memorandum shall include at least the following:
(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 to conduct
discussions.
(4) A requirement for a technical evaluation report in accordance
with paragraph (a)(3)(vi) of this section; and
(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 will convene to
evaluate the proposals. However, there may be situations when the
contracting officer determines that it is not feasible for the panel to
convene. Whenever this decision is made, care must be taken to assure
that the technical review is closely monitored to produce acceptable
results.
(B) When a panel is convened, the chairperson is responsible for the
control of the technical proposals provided to him/her by the
contracting officer for use during the evaluation process. The
chairperson will generally distribute the technical proposals prior to
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the initial panel meeting and will establish procedures for securing the
proposals whenever they are not being evaluated to insure their
confidentiality. After the evaluation is complete, all proposals must be
returned to the contracting officer by the chairperson.
(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 he/
she is unable to attend the initial panel meeting. The guidance should
include:
(1) Explanation of conflicts of interest;
(2) The necessity to read and understand the solicitation,
especially the statement of work and evaluation criteria, prior to
reading the proposals;
(3) The need for evaluators to restrict the review to only the
solicitation and the contents of the technical proposals;
(4) The need for each evaluator to review all the proposals;
(5) The need to watch for ambiguities, inconsistencies, errors, and
deficiencies which should be surfaced during the evaluation process;
(6) An explanation of the evaluation process and what will be
expected of the evaluators throughout the process;
(7) The need for the evaluators to be aware of the requirement to
have complete written documentation of the individual strengths and
weaknesses which affect the scoring of the proposals; and
(8) An instruction directing the evaluators that, until the award is
made, information concerning the acquisition must not be disclosed to
any person not directly involved in the evaluation process.
(v) Rating and ranking of proposals. The evaluators will
individually read each proposal, describe tentative strengths and
weaknesses, and independently develop preliminary scores in relation to
each evaluation factor set forth in the solicitation. After this has
been accomplished, the evaluators shall 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 will score each proposal, and then the technical evaluation
panel will collectively rank the proposals. Generally, ranking will be
determined by adding the numerical scores assigned to the evaluation
factors and finding the average for each offeror. The evaluators should
then identify whether each proposal is acceptable or unacceptable.
Predetermined cutoff scores shall not be employed.
(vi) Technical evaluation report. A technical evaluation report
shall be prepared and furnished to the contracting officer by the
chairperson and maintained as a permanent record in the contract file.
The report must reflect the ranking of the proposals and identify each
proposal as acceptable or unacceptable. The report must also include a
narrative evaluation specifying the strengths and weaknesses of each
proposal, a copy of each signed rating sheet, and any reservations,
qualifications, or areas to be addressed that might bear upon the
selection of sources for negotiation and award. Concrete technical
reasons supporting a determination of unacceptability with regard to any
proposal must be included. The report should also include specific
points and questions which are to be raised in discussions or
negotiations.
Sec. 315.306 Exchanges with offerors after receipt of proposals.
(d) Exchanges with offerors after establishment of the competitive
range. The contracting officer and project officer should discuss the
uncertainties and/or deficiencies that are included in the technical
evaluation report for each proposal in the competitive range. Technical
questions should be developed by the project officer and/or the
technical evaluation panel and should be included in the technical
evaluation report. The management, past performance and cost or price
questions should be prepared by the contracting officer with assistance
from the project officer and/or panel as required. The method of
requesting offerors in the competitive range to submit the additional
information will vary depending on the complexity of the questions, the
extent
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of additional information requested, the time needed to analyze the
responses, and the time frame for making the award. However, to the
extent practicable, all questions and answers should be in writing. Each
offeror in the competitive range shall be given an equitable period of
time for preparation of responses to questions to the extent
practicable. The questions should be developed so as to disclose the
ambiguities, uncertainties, and deficiencies of the offeror.
Sec. 315.307 Proposal revisions.
(b) Final proposal revisions are subject to 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, and an
evaluation of technical factors by the technical evaluation panel, as
necessary. Proposals may be technically rescored and reranked by the
technical evaluation panel and a technical evaluation report prepared.
To the extent practicable, the evaluation shall be performed by the same
evaluators who reviewed the original proposals. A final evaluation of
past performance will be made by the contracting officer and project
officer. The technical evaluation panel may be involved in the final
evaluation of past performance if the panel is comprised solely of
Government personnel.
Sec. 315.370 Finalization of details with the selected source.
(a) After selection of the successful proposal, finalization of
details with the selected offeror may be conducted if deemed necessary.
However, no factor which could have any effect on the selection process
may be introduced after the common cutoff date for receipt of final
proposal revisions. The finalization process shall not in any way
prejudice the competitive interest or rights of the unsuccessful
offerors. Finalization of details with the selected offeror shall be
restricted to definitizing the final agreement on terms and conditions,
assuming none of these factors were involved in the selection process.
(b) Caution must be exercised by the contracting officer to insure
that the finalization process is not used to change the requirements
contained in the solicitation, nor to make any other changes which would
impact on the source selection decision. Whenever a material change
occurs in the requirements, the competition must be reopened and all
offerors submitting final proposal revisions must be given an
opportunity to resubmit proposals based on the revised requirements.
Whenever there is a question as to whether a change is material, the
contracting officer should obtain the advice of technical personnel and
legal counsel before reopening the competition. Significant changes in
the offeror's cost proposal may also necessitate a reopening of
competition if the changes alter the factors involved in the original
selection process.
(c) Should finalization details beyond those specified in paragraph
(a) of this section be required for any reason, discussions must be
reopened with all offerors submitting final proposal revisions.
(d) Upon finalization of details, the contracting officer should
obtain a confirmation letter from the successful offeror which includes
any revisions to the technical proposal, the agreed to price or cost,
and, as applicable, a certificate of current cost or pricing data.
Sec. 315.371 Contract preparation and award.
(a) The contracting officer must perform the following actions after
finalization details have been completed:
(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 contract should be
transmitted to the prospective contractor for signature. The prospective
contractor must be informed that the contract is not effective until
accepted by the contracting officer.
[[Page 38]]
(c) The contract shall not be issued until the finance office
certifies that the funds are available for obligation.
Sec. 315.372 Preparation of negotiation memorandum.
The negotiation memorandum or summary of negotiations is a complete
record of all actions leading to award of a contract and is prepared by
the contract negotiator to support the source selection decision
discussed in FAR 15.308. It should be in sufficient detail to explain
and support the rationale, judgments, and authorities upon which all
actions were predicated. The memorandum will document the negotiation
process and reflect the negotiator's actions, skills, and judgments in
concluding a satisfactory agreement for the Government. Negotiation
memorandums shall contain discussion of the following or a statement of
nonapplicability; however, information already contained in the contract
file need not be reiterated. A reference to the document which contains
the required information is acceptable.
(a) Description of articles and services and period of performance.
A description of articles and services, quantity, unit price, total
contract amount, and period of contract performance should be set forth
( if Supplemental Agreement--show previous contract amount as revised,
as well as information with respect to the period of performance).
(b) Acquisition planning. Summarize or reference any acquisition
planning activities that have taken place.
(c) Synopsis of acquisition. A statement as to whether the
acquisition has or has not been publicized in accordance with FAR
Subpart 5.2. A brief statement of explanation should be included with
reference to 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. The extent to which full and open
competition was solicited and obtained must be discussed. The discussion
shall 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 past
performance evaluation and reference checks.
(i) Competitive range (if applicable). Describe how the competitive
range was determined and state the offerors who were included in the
competitive range and the ones who were not.
(j) Cost breakdown and analysis. Include a complete cost breakdown
together with the negotiator's analysis of the estimated cost by
individual cost elements. The negotiator's analysis should contain
information such as:
(1) A comparison of cost factors proposed in the instant case 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 of 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
and rationale of the cost analysis.
(5) If the contract is an incentive type, discuss all elements of
profit and fee structure.
(6) A justification of the reasonableness of the proposed
contractor's estimated profit or fixed fee, considering the requirements
of FAR 15.404-4 and HHSAR 315.404-4.
(k) Cost realism. Describe the cost realism analysis performed on
proposals.
(l) Government-furnished property and Government-provided
facilities. With respect to Government-furnished or Government-provided
facilities, equipment, tooling, or other property, include the
following:
[[Page 39]]
(1) Where no property is to be provided, a statement to that effect.
(2) Where property is to be provided, a full description, the
estimated dollar value, the basis of price comparison with competitors,
and the basis of rental charge, if rental is involved.
(3) Where the furnishing of any property or the extent has not been
determined and is left open for future resolution, a detailed
explanation.
(m) Negotiations. Include a statement as to the date and place
negotiations were conducted, and identify members of both the Government
and contractor negotiating teams by area of responsibility. Include
negotiation details relative to the statement of work, terms and
conditions, and special provisions. The results of cost or price
negotiations must include the information required by FAR 31.109 and
15.406-3. In addition, if cost or pricing data was required to be
submitted, the negotiation record must also contain the extent to which
the contracting officer relied upon the factual cost or pricing data
submitted and used in negotiating the cost or price.
(n) Other considerations. Include coverage of areas such as:
(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
payment, advance payment, etc., is necessary. Also cite any required D &
F's.
(4) Information with respect to obtaining of 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) should be
reflected. Also, a determination should be made that the Government has
obtained enough actual or potential value from the work previously
performed to warrant continuation with the same contractor. (Project
officer should furnish the necessary information.)
(7) If the contract was awarded by full and open competition, state
where the unsuccessful offerors' proposals are filed.
(8) State that equal opportunity provisions of the proposed contract
have been explained to the contractor, and it is aware of its
responsibilities. Also state whether or not a clearance is required.
(9) If the contract is for services, a statement must be made, in
accordance with FAR 37.103, that the services to be acquired 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, incremental funding, anticipatory costs, deviations from
standard clauses, etc. The basis and rationale for inclusion of any
special terms and conditions must be stated and, where applicable, the
document which granted approval for its use identified.
(p) Recommendation. A brief statement setting forth the
recommendations for award.
(q) Signature. The memorandum must be signed by the contract
negotiator who prepared the memorandum.
Subpart 315.4_Contract Pricing
Sec. 315.404 Proposal analysis.
Sec. 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, contracting
officers 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 is to 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 (ACO), 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
[[Page 40]]
of Audits' Regional Audit Director. In 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 to be
followed by a 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.) One copy of the audit request letter that was submitted to the
Regional Audit Director and a complete copy of the contract price
proposal shall be submitted to OIG/OA/DAC. Whenever, an audit review has
been conducted by the Office of Audits, two (2) copies of the memorandum
of negotiation shall be forwarded to OIG/OA/DAC by the contracting
officer.
Sec. 315.404-4 Profit.
(b) Policy. (1) The structured approach for determining profit or
fee (hereafter referred to as profit) provides contracting officers with
a technique that will ensure consideration of the relative value of the
appropriate profit factors described in paragraph (d) of this section in
the establishment of a profit objective for the conduct of negotiations.
The contracting officer's analysis of these profit factors is based on
information available to him/her prior to negotiations. The information
is furnished in proposals, audit data, assessment reports, preaward
surveys and the like. The structured approach also provides a basis for
documentation of this objective, including an explanation of any
significant departure from this objective in reaching an agreement. The
extent of documentation should be directly related to the dollar value
and complexity of the proposed acquisition. Additionally, the
negotiation process does not require agreement on either estimated cost
elements or profit elements. The profit objective is a part of an
overall negotiation objective which, as a going-in objective, bears a
distinct relationship to the cost objective and any proposed sharing
arrangement. Since profit is merely one of several interrelated
variables, the Government negotiator generally should not complete the
profit negotiation without simultaneously agreeing on the other
variables. Specific agreement on the exact weights or values of the
individual profit factors is not required and should not be attempted.
(ii) The profit-analysis factors set forth at FAR 15.404-4(d) shall
be used for establishing profit objectives under the following listed
circumstances. Generally, it is expected that this method will be
supported in a manner similar to that used in the structured approach
(profit factor breakdown and documentation of the profit objective);
however, factors within FAR 15.404-4(d) considered inapplicable to the
acquisition will be excluded from the profit objective.
(A) Contracts not expected to exceed $100,000;
(B) Architect-engineer contracts;
(C) Management contracts for operations and/or maintenance of
Government facilities;
(D) Construction contracts;
(E) Contracts primarily requiring delivery of material supplies by
subcontractors;
(F) Termination settlements; and
(G) Cost-plus-award-fee contracts (However, contracting officers may
find it advantageous to perform a structured profit analysis as an aid
in arriving at an appropriate fee arrangement). Other exceptions may be
made in the negotiation of contracts having unusual pricing situations,
but shall be justified in writing by the contracting officer in
situations where the structured approach is determined to be unsuitable.
(c) Contracting officer responsibilities. A profit objective is that
part of the estimated contract price objective or
[[Page 41]]
value which, in the judgment of the contracting officer, constitutes an
appropriate amount of profit for the acquisition being considered. This
objective should realistically reflect the total overall task to be
performed and the requirements placed on the contractor. Development of
a profit objective should not begin until a thorough review of proposed
contract work has been made; a review of all available knowledge
regarding the contractor pursuant to FAR subpart 9.1, including audit
data, preaward survey reports and financial statements, as appropriate,
has been conducted; and an analysis of the contractor's cost estimate
and comparison with the Government's estimate or projection of cost has
been made.
(d) Profit--analysis factors (1) Common factors. The following
factors shall be considered in all cases in which profit is to be
negotiated. The weight ranges listed after each factor shall be used in
all instances where the structured approach is used.
------------------------------------------------------------------------
Profit factors Weight ranges (in percent)
------------------------------------------------------------------------
Contractor effort:
Material acquisition................. 1 to 5.
Direct labor......................... 4 to 15.
Overhead............................. 4 to 9.
General management (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) Under the structured approach, the contracting officer shall
first measure ``Contractor Effort'' by the assignment of a profit
percentage within the designated weight ranges to each element of
contract cost recognized by the contracting officer. The amount
calculated for the cost of money for facilities capital is not to be
included for the computation of profit as part of the cost base. The
suggested categories under ``Contractor Effort'' are for reference
purposes only. Often individual proposals will be in a different format,
but since these categories are broad and basic, they provide sufficient
guidance to evaluate all other items of cost.
(ii) After computing a total dollar profit for ``Contractor
Effort,'' the contracting officer shall then calculate the specific
profit dollars assigned for cost risk, investment, performance,
socioeconomic programs, and special situations. This is accomplished by
multiplying the total Government Cost Objective, exclusive of any cost
of money for facilities capital, by the specific weight assigned to the
elements within the ``Other Factors'' category. Form HHS-674, Structured
Approach Profit/Fee Objective, should be used, as appropriate, to
facilitate the calculation of this profit objective. Form HHS-674 is
illustrated in 353.370-674.
(iii) In making a judgment of the value of each factor, the
contracting officer should be governed by 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, if
appropriate adjustments are made to reflect differences between profit
and nonprofit organizations, the structured approach can be used as a
basis for arriving at profit objectives for nonprofit organizations.
Therefore, the structured approach, as modified in paragraph
(d)(1)(iv)(B) of this section, shall be used to establish profit
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 of the Internal Revenue Code.
(B) For contracts with nonprofit organizations where profit is
involved, an adjustment of up to 3 percentage points will be subtracted
from the total profit objective percentage. In developing this
adjustment, it will be necessary to consider the following factors;
(1) Tax position benefits;
(2) Granting of financing through advance payments; and
(3) Other pertinent factors which may work to either the advantage
or
[[Page 42]]
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 the contractor must do 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 should reflect the extent and nature of the
contractor's contribution to total performance. A major consideration,
particularly in connection with experimental, developmental, or research
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 and/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 will
be required to develop complex specifications. Consideration shall also
be given to the managerial and technical efforts necessary for the prime
contractor to select subcontractors and to perform subcontract
administration functions. In application of this criterion, it should be
recognized that the contribution of the prime contractor to its
purchasing program may be substantial. Normally, the lowest unadjusted
weight for direct material is 2 percent. A weighting of less than 2
percent would 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 should 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, consideration should be given to the amount of notable
scientific talent or unusual or scarce talent needed in contrast to
nonprofessional effort. The assessment should consider the contribution
this talent will provide toward the achievement of contract objectives.
Since nonprofessional labor is relatively plentiful and rather easily
obtained by the contractor and is less critical to the successful
performance of contract objectives, it cannot be weighted nearly as high
as professional or semiprofessional labor. Service contract labor should
be evaluated in a like manner by assigning higher weights to engineering
or professional type skills required for contract performance.
Similarly, the variety of manufacturing and other categories of labor
skills required and the contractor's manpower resources for meeting
these requirements should be considered. For purposes of evaluation,
categories of labor (i.e., quality control, receiving and inspection,
etc.) which do not fall within the definition for professional, service
or manufacturing labor may be categorized as appropriate. However, the
same evaluation considerations as outlined in this paragraph will be
applied.
(iii) Overhead and general management (G&A). (A) Analysis of these
overhead items of cost should include the evaluation of the makeup of
these expenses and how much they contribute to contract performance. To
the extent practicable, analysis should include a determination of the
amount of labor
[[Page 43]]
within these overhead pools and how this labor should be treated if it
were considered as direct labor under the contract. The allocable labor
elements should be given the same profit considerations that they would
receive if they were treated as direct labor. The other elements of
these overhead pools should be evaluated 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 will 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, could 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) Management problems surface in various degrees and the
management expertise exercised to solve them should be considered as an
element of profit. For example, a contract for a new program for
research or an item which is on the cutting edge of the state of the art
will 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, follow-ons should be
adjusted downward because many of the problems should have been solved.
In any event, an evaluation should be made of 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 an analysis of the profit weight to be assigned to the
overhead pool has been made, that weight assigned may be used for future
acquisitions with the same contractor until there is a change in the
cost composition of the overhead pool or the contract circumstances, or
the factors discussed in paragraph (d)(2)(iii)(C) of this section are
involved.
(iv) Other costs. Analysis of this factor should include all other
direct costs associated with contractor performance (e.g., travel and
relocation, direct support, and consultants). Analysis of these items of
cost should include, the 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 1%. Also, the contractor may designate
individuals as ``consultants'' but in reality these individuals may be
obtained by the contractor to supplement its workforce in the
performance of routine duties required by contract. These costs would
normally receive a minimum weight. However, there will be instances when
the contractor may be required to locate and obtain the services of
consultants having expertise in fields such as medicine or human
services. In these instances, the contractor will be required to expend
greater managerial and technical effort to obtain these services and,
consequently, the costs should 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,
[[Page 44]]
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 should be less than where
the contractor assumes all the risk.
(A) In developing the prenegotiation profit objective, the
contracting officer will need to consider the type of contract
anticipated to be negotiated and the contractor risk associated
therewith when selecting the position in the weight range for profit
that is appropriate for the risk to be borne by the contractor. This
factor should be one of the most important in arriving at prenegotiation
profit objective. Evaluation of this risk requires a determination of
the degree of cost responsibility the contractor assumes; the
reliability of the cost estimates in relation to the task assumed; and
the complexity of the task assumed by the contractor. This factor is
specifically limited to the risk of contract costs. Thus, risks on the
part of the contractor such as reputation, losing a commercial market,
risk of losing potential profits in other fields, or any risk which
falls on the contracting office, such as the risk of not acquiring a
satisfactory report, 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-a-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-a-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. Where proper contract
selection has been made, the regard for risk by contract type would
usually fall 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 related efforts. An excessive cost estimate reduces the
possibility 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 incident to 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. Where proper
contract-type selection has been made, 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
developed by using the structured approach for research and development
and manufacturing contracts:
------------------------------------------------------------------------
Percent
------------------------------------------------------------------------
Cost-Plus-fixed fee....................... 0 to 0.5
Cost-plus-incentive fee:
With cost incentive only................ 1 to 2
With multiple incentives................ 1.5 to 3
Fixed-price-incentive:
With cost incentive only................ 2 to 4
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
developed by using 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
------------------------------------------------------------------------
[[Page 45]]
(F) These ranges may not be appropriate for all acquisitions. For
instance, a fixed-price-incentive contract that is closely priced 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 assumed by the contractor
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 or risk under a contract form. It
could cause risk to increase or decrease in terms of both cost and
performance. This consideration should be a part of the contracting
officer's overall evaluation in selecting a factor to apply for cost
risk. It may be determined, 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. The contract
cost risk evaluation should not be lowered, however, merely on the basis
that a substantial portion of the contract costs represents subcontracts
without any substantial transfer of contractor's risk.
(H) In making a contract cost risk evaluation in an acquisition
action that involves definitization of a letter contract, unpriced
change orders, and unpriced orders under basic ordering agreements,
consideration should be given to the effect on total contract cost risk
as a result of having partial performance before definitization. Under
some circumstances it may be reasoned that the total amount of cost risk
has been effectively reduced. Under other circumstances it may be
apparent that the contractor's cost risk remained substantially
unchanged. To be equitable, the determination of profit weight for
application to the total of all recognized costs, both those incurred
and those yet to be expended, must be made with consideration to all
attendant circumstances--not just the portion of costs incurred or
percentage of work completed prior to definitization.
(I) Time and material and labor hour contracts will be considered to
be cost-plus-a-fixed-fee contracts for the purpose of establishing
profit weights unless otherwise exempt under paragraph (b)(1)(ii) of
this section in the evaluation of the contractor's assumption of
contract cost risk.
(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 should include an
analysis of the following:
(A) Facilities. (Including equipment). To evaluate 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. Contractors who furnish their own facilities
which significantly contribute to lower total contract costs should be
provided with additional profit. On the other hand, contractors who rely
on the Government to provide or finance needed facilities should receive
a corresponding reduction in profit. Cases between these examples should
be evaluated on their merits with either positive or negative
adjustments, as appropriate, in profit being made. However, where a
highly facilitized contractor is to perform a contract which does not
[[Page 46]]
benefit from this facilitization or where a contractor's use of its
facilities has a minimum cost impact on the contract, profit need not be
adjusted. When applicable, the prospective contractor's computation of
facilities capital cost of money for pricing purposed under CAS 414 can
help the contracting officer identify the level of facilities investment
to be employed in contract performance.
(B) Payments. In analyzing this factor, consideration should be
given to 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 should be given for advance payments and payments
more frequent than monthly with maximum reduction being given as the
contractor's working capital approaches zero. Positive consideration
should be given for payments less frequent than monthly with additional
consideration given for a capital turn-over rate on the contract which
is less than the contractor's or the industry's normal capital turn-over
rate.
(iii) Performance. (Cost-control and other past accomplishments.)
The contractor's past performance should be evaluated in such areas as
quality of service or product, meeting performance schedules, efficiency
in cost control (including need for and reasonableness of cost
incurred), accuracy and reliability of previous cost estimates, degree
of cooperation by the contractor (both business and technical), timely
processing of changes and compliance with other contractual provisions,
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 should be reflected in determining what
constitutes a fair and reasonable 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 such as small business, small disadvantaged business, women-
owned small business, and energy conservation efforts. The contractor's
policies and procedures which energetically support Government
socioeconomic programs and achieve successful results should be given
positive considerations. Conversely, failure or unwillingness on the
part of the contractor to support Government socioeconomic programs
should be viewed as evidence of poor performance for the purpose of
establishing a profit objective.
(v) Special situations (A) Inventive and developmental
contributions. The extent and nature of contractor-initiated and
financed independent development should be considered in developing the
profit objective, provided that the contracting officer has made a
determination that the effort will benefit the contract. The importance
of the development in furthering health and human services purposes, the
demonstrable initiative in determining the need and application of the
development, the extent of the contractor's cost risk, and whether the
development cost was recovered directly or indirectly from Government
sources should be weighed.
(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
contractor should receive favorable consideration in developing the
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, a reduction in the profit
objective shall be made in an
[[Page 47]]
amount equal to the amount of facilities capital cost of money allowed
in accordance with the Facilities Capital Cost-of Money Cost Principal.
If the contractor does not propose this cost, a provision must be
inserted in the contract that facilities capital cost of money is not an
allowable cost.
Subpart 315.6_Unsolicited Proposals
Sec. 315.605 Content of unsolicited proposals.
(d) Certification by offeror--To ensure against contacts between
Department employees and prospective offerors which would exceed the
limits of advance guidance set forth in FAR 15.604 resulting in an
unfair advantage to an offeror, the contracting officer shall ensure
that the following certification is furnished to the prospective offeror
and the executed certification is included as part of the 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.
(c) Any contact with employees of the Department of Health and Human
Services has been within the limits of appropriate advance guidance set
forth in FAR 15.604.
(d) No prior commitments were received from departmental employees
regarding acceptance of this proposal.
Date:___________________________________________________________________
Organization:___________________________________________________________
Name:___________________________________________________________________
Title:__________________________________________________________________
(This certification shall be signed by a responsible official of the
proposing organization or a person authorized to contractually obligate
the organization.)
Sec. 315.606 Agency procedures.
(a) The HCA is responsible for establishing procedures to comply
with FAR 15.606(a).
(b) The HCA or his/her designee shall be the point of contract for
coordinating the receipt and handling of unsolicited proposals.
Sec. 315.606-1 Receipt and initial review.
(d) An unsolicited proposal shall not be refused consideration
merely because it was initially submitted as a grant application.
However, contracts shall not be awarded on the basis of unsolicited
proposals which have been rejected for grant support on the grounds that
they lack scientific merit.
Sec. 315.609 Limited use of data.
The legend, Use and Disclosure of Data, prescribed in FAR 15.609(a)
is to be used by the offeror to restrict the use of data for evaluation
purposes only. However, data contained within the unsolicited proposal
may have to be disclosed as a result of a request submitted pursuant to
the Freedom of Information Act. Because of this possibility, the
following notice shall be furnished to all prospective offerors of
unsolicited proposals whenever the legend is provided in accordance with
FAR 15.604(a)(7):
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.) nor 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 involving the record in question and whether
the record may be exempted from disclosure under the Freedom of
Information Act. Records which the offeror considers to be trade secrets
and commercial or financial information and privileged or confidential
must be identified by the offeror as indicated in the referenced legend.
PART 316_TYPES OF CONTRACTS
Subpart 316.3_Cost-Reimbursement Contracts
Sec.
Sec. 316.307 Contract clauses.
Subpart 316.6_Time-and-Materials, Labor-Hour, and Letter Contracts
Sec. 316.603 Letter contracts.
Sec. 316.603-3 Limitations.
Sec. 316.603-70 Information to be furnished when requesting authority
to issue a letter contract.
[[Page 48]]
Sec. 316.603-71 Approval for modifications to letter contracts.
Subpart 316.7_Agreements
Sec. 316.770 Unauthorized types of agreements.
Sec. 316.770-1 Letter of intent.
Sec. 316.770-2 Memorandums of understanding.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4243, Jan. 17, 2001, unless otherwise noted.
Subpart 316.3_Cost-Reimbursement Contracts
Sec. 316.307 Contract clauses.
(a) If the contract is with a hospital (profit or nonprofit) for
research and development, 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 at 352.216-72,
Additional Cost Principles, in all solicitations and resultant cost-
reimbursement contracts.
Subpart 316.6_Time-and-Materials, Labor-Hour, and Letter Contracts
Sec. 316.603 Letter contracts.
Sec. 316.603-3 Limitations.
An official one level above the contracting officer shall execute
the prescribed written statement.
Sec. 316.603-70 Information to be furnished when requesting authority
to issue a letter contract.
The following information should be included by the contracting
officer in any memorandum requesting approval to issue 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) 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 percent or more of the proposed estimated cost of the
acquisition, a justification for that obligation must be included which
would indicate the basis and necessity for the 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 must assure
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, complete justification must be given.
(l) Statement of any substantive matters that need to be resolved.
Sec. 316.603-71 Approval for modifications to letter contracts.
All letter contract modifications (amendments) must be approved one
level above the contracting officer. Request for authority to issue
letter contract modifications shall be processed in the same manner as
requests for authority to issue letter contracts and shall include the
following:
(a) Name and address of the contractor.
(b) Description of work and services.
(c) Date original request was approved and indicate approving
official.
(d) Letter contract number and date issued.
(e) Complete justification as to why the letter contract cannot be
definitized at this time.
(f) Complete justification as to why the level of funding must be
increased.
(g) Complete justification as to why the period of effectiveness is
increased beyond 180 days, if applicable.
[[Page 49]]
(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
information required by 316.603-70(j) must be included.
Subpart 316.7_Agreements
Sec. 316.770 Unauthorized types of agreements.
Sec. 316.770-1 Letters of intent.
A letter of intent is an informal unauthorized agreement between the
Government and a prospective contractor which indicates that products or
services will be produced after completion of funding and/or other
contractual formalities. Letters of intent are often solicited by
prospective contractors or may be originated by Government personnel.
Letters of intent are not authorized by the FAR and are prohibited for
use by Department personnel.
Sec. 316.770-2 Memorandums of understanding.
A ``memorandum of understanding'' is an unauthorized agreement,
usually drafted during the course of negotiations, to modify mandatory
FAR and HHSAR provisions in such a manner as to make them more
acceptable to a prospective contractor. It may be used to bind the
contracting officer in attempting to exercise rights given the
Government under the contract, or may contain other matters directly
contrary to the language of the solicitation or prospective contractual
document. Use of memorandums of understanding is not authorized. Any
change in a solicitation or contract shall be made by amendment or
modification to that document. When a change to a prescribed contract
clause is considered necessary, a deviation shall be requested.
PART 317_SPECIAL CONTRACTING METHODS
Subpart 317.2_Options
Sec.
Sec. 317.201 Definition.
Subpart 317.71_Supply and Service Acquisitions Under the Government
Employees Training Act.
Sec. 317.7100 Scope of subpart.
Sec. 317.7101 Applicable regulations.
Sec. 317.7102 Acquisition of training.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4244, Jan. 17, 2001, unless otherwise noted.
Subpart 317.2_Options
Sec. 317.201 Definitions.
An option must:
(a) Identify the supplies or services as a discrete option quantity
in addition to the basic quantity of supplies or services to be
delivered under the initial contract award;
(b) Establish a price or specify a method of calculation which will
make the price certain;
(c) Be agreed to and included in the initial contract award; and
(d) Permit the Government the right to exercise the option
unilaterally.
Subpart 317.71_Supply and Service Acquisitions Under the Government
Employees Training Act
Sec. 317.7100 Scope of subpart.
This subpart provides alternate methods for obtaining training under
the Government Employees Training Act (GETA), 5 U.S.C. Chapter 41.
Sec. 317.7101 Applicable regulations.
Basic policy, standards, and delegations of authority to approve
training are contained in HHS Personnel Manual Instruction 410-1.
Sec. 317.7102 Acquisition of training.
(a) Off-the-shelf training, whether for individuals or for groups of
employees, shall be acquired under the GETA by officials delegated
authority in HHS Transmittal 95.5, Personnel Manual (3/30/95).
(b) Training must be acquired through the contracting office if
there are costs for training course development or for modification of
off-the-shelf training courses.
[[Page 50]]
SUBCHAPTER D_SOCIOECONOMIC PROGRAMS
PART 319_SMALL BUSINESS PROGRAMS
Subpart 319.2_Policies
Sec.
Sec. 319.201 General policy.
Subpart 319.5_Set-Asides for Small Business
Sec. 319.501 General.
Sec. 319.506 Withdrawing or modifying set-asides.
Subpart 319.7_Subcontracting With Small Business, Small Disadvantaged
Business and Women-Owned Small Business Concerns
Sec. 319.705 Responsibilities of the contracting officer under the
subcontracting assistance program.
Sec. 319.705-5 Awards involving subcontracting plans.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4244, Jan. 17, 2001, unless otherwise noted.
Subpart 319.2_Policies
Sec. 319.201 General policy.
(d) The functional management responsibilities for the Department's
Small Business Program, (small, HUBZone, small disadvantaged, and women-
owned small business programs) are delegated to the Director of the
Office of Small and Disadvantaged Business Utilization (OSDBU).
(e) (1) The Department's Small Business Program shall be carried out
by appointed small business specialists (SBS) at the OPDIV Level.
Appointments, and termination of appointments, shall be made in writing
by the head of the OPDIV after consultation and concurrence by the
Director, OSDBU. The small business specialist shall be responsible
directly to the appointing authority and shall be at an organizational
level outside the direct acquisition chain of command, i.e., should
report directly to the head of the OPDIV or designee. The Director,
OSDBU will exercise functional management authority over small business
specialists regarding the small business programs.
(2) The head of each OPDIV shall appoint a qualified full-time small
business specialist (SBS) in the following activities: Administration
for Children and Families (ACF), Agency for Healthcare Research and
Quality (AHRQ), Health Care Financing Administration (HCFA), Substance
Abuse and Mental Health Services Administration (SAMHSA), Food and Drug
Administration (FDA), Health Resources and Services Administration
(HRSA), Indian Health Service (IHS), National Institutes of Health
(NIH), Centers for Disease Control and Prevention (CDCP), and Program
Support Center (PSC). A SBS shall also be appointed for the Office of
the Secretary (OS). As deemed necessary, additional small business
specialists may be appointed in larger contracting activities. When the
volume of contracting does not warrant assignment of a full-time SBS, an
individual shall be appointed as the specialist on a part-time basis.
The responsibilities of this assignment shall take precedence over other
responsibilities.
Subpart 319.5_Set-Asides For Small Business
Sec. 319.501 General.
(d) Subsequent to the contracting officer's recommendation on Form
HHS653, Small Business Set-Aside Review Form, the SBS shall review each
proposed acquisition and either concur or non-concur with the
contracting officer's recommendation. If the contracting officer
disapproves the SBS's set-aside recommendation, the reasons must be
documented on the Form HHS-653, and the form placed in the contract
file. The contracting officer will make the final determination as to
whether the proposed acquisition will be set-aside or not.
[[Page 51]]
Sec. 319.506 Withdrawing or modifying set-asides.
(d) Immediately upon notice from the contracting officer, the SBS
shall provide telephone notification regarding all set-aside withdrawals
to the OSDBU Director.
Subpart 319.7_Subcontracting With Small Business, Small Disadvantaged
Business and Women-Owned Small Business Concerns
Sec. 319.705 Responsibilities of the contracting officer under the
subcontracting assistance program.
Sec. 319.705-5 Awards involving subcontracting plans.
(a)(3) The SBA PCR shall be allowed a period of one to five working
days to review the contract award package, depending upon the
circumstances and complexity of the individual acquisition.
PART 323_ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-FREE
WORKPLACE
Subpart 323.70_Safety and Health
Sec.
Sec. 323.7000 Scope of subpart.
Sec. 323.7001 Policy.
Sec. 323.7002 Actions required.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4245, Jan. 17, 2001, unless otherwise noted.
Subpart 323.70_Safety and Health
Sec. 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.
Sec. 323.7001 Policy.
Various statutes and regulations (e.g. Walsh-Healy Act; Service
Contract Act) require adherence to minimum safety and health standards
by contractors engaged in potentially hazardous work. The guidance
contained in FAR subpart 23.3 shall be used for hazardous materials as
the primary reference. When the guidance is judged insufficient or does
not meet the safety and health situation in the instant acquisition,
this subpart shall be followed.
Sec. 323.7002 Actions required.
(a) Contracting activities. Contracting activities shall use the
clause set forth in 352.223-70, or a clause reading substantially the
same, in prospective contracts and subcontracts involving hazardous
materials or operations for the following:
(1) Services or products;
(2) Research, development, or test projects;
(3) Transportation of hazardous materials; and
(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 should be
included in a prospective contract;
(2) Evaluating a prospective contractor's safety and health
programs; and
(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 a request for contract, 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 office 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.
[[Page 52]]
PART 324_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
Subpart 324.1_Protection of Individual Privacy
Sec.
Sec. 324.100 Scope of subpart.
Sec. 324.102 General.
Sec. 324.103 Procedures.
Subpart 324.2_Freedom of Information Act
Sec. 324.202 Policy.
Subpart 324.70_Confidentiality of Information
Sec. 324.7001 General.
Sec. 324.7002 Policy.
Sec. 324.7003 Applicability.
Sec. 324.7004 Required clause.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4245, Jan. 17, 2001, unless otherwise noted.
Subpart 324.1_Protection of Individual Privacy
Sec. 324.100 Scope of subpart.
This subpart implements 45 CFR Part 5b, Privacy Act Regulations, and
FAR Subpart 24.1, Protection of Individual Privacy, which implements the
Privacy Act of 1974 (Public Law 93-579, December 31, 1974; 5 U.S.C.
552a) and OMB Circular No. A-108, July 9, 1975.
Sec. 324.102 General.
(a) It is the Department's policy to protect the privacy of
individuals to the maximum possible extent while permitting the exchange
of records required to fulfill the Department's 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 Department's
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 a departmental function is involved. Therefore, the Privacy Act
requirements apply to a departmental contract when, under the contract,
the contractor must maintain or operate a system of records to
accomplish a departmental function.
(e) The program official, and, as necessary, the official designated
as the activity's Privacy Act Coordinator and the Office of General
Counsel, shall determine the applicability of the Act to each proposed
acquisition. The program official is required to include a statement in
the request for contract indicating whether the Privacy Act is or is not
applicable to the proposed acquisition.
(f) Whenever the 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 subpart 324.70).
Sec. 324.103 Procedures.
(a) All requests for contract shall be reviewed by the contracting
officer to determine whether the Privacy Act requirements are
applicable. If applicable, the contracting officer shall include the
solicitation notification and contract clause required by FAR 24.104 in
the solicitation, and the contract clause in the resultant contract. In
addition, the contracting officer shall ensure that the solicitation
notification, contract clause, and other pertinent information specified
in this subpart are included in any contract modification which results
in the Privacy Act requirements becoming applicable to a contract.
(b)(1) The contracting officer shall identify the system(s) of
records on individuals in solicitations, contracts, and contract
modifications to which the Privacy Act and the implementing regulations
are applicable.
(2) The contracting officer shall include a statement in the
contract notifying the contractor that the contractor and its employees
are subject to criminal penalties for violations of the Act (5 U.S.C.
552a(i)) to the same extent as employees of the Department. The
statement shall require that
[[Page 53]]
the contractor assure that each contractor employee knows the prescribed
rules of conduct, and each contractor employee is aware that he/she can
be subjected to criminal penalties for violations of the Act. The
contracting officer shall provide the contractor with a copy of the
rules of conduct and other requirements set forth in 45 CFR part 5b.
(c) The contracting officer shall include in the contract the
disposition to be made of the system(s) of records on individuals upon
completion of performance of the contract. For example, the contract may
require the contractor to completely destroy the records, to remove
personal identifiers, to turn the records over to the Department, or to
keep the records but take certain measures to keep the records
confidential and protect the individuals' privacy.
(d) Whenever an acquisition is determined to be subject to the
Privacy Act requirements, a ``system notice,'' prepared by the program
official and describing the Department's 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, is
required to be published in the Federal Register. A copy of the ``system
notice'' shall be attached to the request for contract or purchase
request. If a ``system notice'' is not attached, the contracting officer
shall inquire about its status and shall obtain a copy from the program
official 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 publication is verified by the
contracting officer.
Subpart 324.2_Freedom of Information Act
Sec. 324.202 Policy.
(a) The Department's 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 Department and operating division procedures. As necessary,
actions should be coordinated with the cognizant Freedom of Information
(FOI) Officer and the Business and Administrative Law Division of the
Office of General Counsel. The contracting officer must remember that
only the FOI Officer has the authority to release or deny release of
records. While the contracting officer should be familiar with the
entire FOIA regulation in 45 CFR part 5, particular attention should be
focused on Secs. 5.65 and 5.66; also of interest are Secs. 5.32, 5.33,
and 5.35.
Subpart 324.70_Confidentiality of Information
Sec. 324.7001 General.
In performance of certain HHS contracts, it is necessary for the
contractor to generate data, or be furnished data by the Government,
which is about individuals, organizations, or Federal programs. This
subpart and the accompanying contract clause require contractors to
prudently handle disclosure of certain types of information not subject
to the Privacy Act or the HHS human subject regulations set forth in 45
CFR part 46. This subpart and contract clause address the kinds of data
to be generated by the contractor and/or data to be furnished by the
Government that are considered confidential and how it should be
treated.
Sec. 324.7002 Policy.
It is the policy of HHS to protect personal interests of
individuals, corporate interests of non-governmental organizations, and
the capacity of the Government to provide public services when
information from or about individuals, organizations, or Federal
agencies is provided to or obtained by contractors in performance of HHS
contracts. This protection depends on the contractor's recognition and
proper handling of the information. As a result, the ``Confidentiality
of Information'' contract clause was developed.
Sec. 324.7003 Applicability.
(a) The ``Confidentiality of Information'' clause, set forth in
352.224-70,
[[Page 54]]
should be used in solicitations and resultant contracts whenever the
need exists to keep information confidential. Examples of situations
where the clause may be appropriate include:
(1) Studies performed by the contractor which generate information
or involve Government-furnished information that is personally
identifiable, such as medical records, vital statistics, surveys, and
questionnaires;
(2) Contracts which involve the use of salary structures, wage
schedules, proprietary plans or processes, or confidential financial
information of organizations other than the contractor's; and
(3) Studies or research which may result in preliminary or
invalidated findings which, upon disclosure to the public, might create
erroneous conclusions which, if acted upon, could threaten public health
or safety.
(b) With regard to protecting individuals, this subpart and contract
clause are not meant to regulate or control the method of selecting
subjects and performing studies or experiments involving them. These
matters are dealt with in the HHS regulation entitled ``Protection of
Human Subjects,'' 45 CFR Part 46. If a system of records under contract,
or portions thereof, is determined to be subject to the requirements of
the Privacy Act, in accordance with FAR 24.1 and 324.1 and Title 45 CFR
part 5b, the procedures cited in those references are applicable and the
Privacy Act contract clause shall be included in the contract. If the
contract also involves confidential information, as described in this
section, which is not subject to the Privacy Act, the contract shall
include the ``Confidentiality of Information'' clause in addition to the
Privacy Act clause.
Sec. 324.7004 Required clause.
The clause set forth in 352.224-70 shall be included in any RFP and
resultant contract(s) where it has been determined that confidentiality
of information provisions may apply. Any RFP announcing the intent to
include this clause in any resultant contract(s) shall indicate, as
specifically as possible, the types of data which would be covered and
requirements for handling the data.
PART 325_FOREIGN ACQUISITION
Subpart 325.1_Buy American Act_Supplies
Sec.
Sec. 325.102 Policy.
Sec. 325.108 Excepted articles, materials, and supplies.
Subpart 325.3_Balance of Payments Program
Sec. 325.302 Policy.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4247, Jan. 17, 2001, unless otherwise noted.
Subpart 325.1_Buy American Act_Supplies
Sec. 325.102 Policy.
(b) The head of the contracting activity (not delegable) shall make
the determinations required by FAR 25.102(a)(1) through (5) and
25.102(b)(2).
Sec. 325.108 Excepted articles, materials, and supplies.
(b) Articles, materials, and supplies not listed in FAR 25.108(d)
may be excepted only after a written determination has been made by the
head of the contracting activity (not delegable). These determinations
are required only in instances where it has been determined that only
suppliers of foreign source end items shall be solicited. However,
approvals and determinations covering individual acquisitions in the
following categories may be made by the contracting officer:
(1) Acquisition of spare and replacement parts for foreign
manufactured items, if the acquisition must be restricted to the
original manufacturer or its supplier; and
(2) Acquisition of foreign drugs when it has been determined, in
writing, by the responsible program official, that only the requested
foreign drug will fulfill the requirement.
[[Page 55]]
Subpart 325.3_Balance of Payments Program
Sec. 325.302 Policy.
All determinations addressed in FAR 25.302 shall be made by the head
of the contracting activity (not delegable).
[[Page 56]]
SUBCHAPTER E_GENERAL CONTRACTING REQUIREMENTS
PART 328_BONDS AND INSURANCE
Subpart 328.3_Insurance
Sec.
Sec. 328.301 Policy.
Sec. 328.311 Solicitation provision and contract clause on liability
insurance under cost-reimbursement contracts.
Sec. 328.311-2 Agency solicitation provisions and contract clauses.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4247, Jan. 17, 2001, unless otherwise noted.
Subpart 328.3_Insurance
Sec. 328.301 Policy.
It is Department 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 will be limited to final judgments or
settlements approved in writing by the Government.
Sec. 328.311 Solicitation provision and contract clause on liability
insurance under cost-reimbursement contracts.
Sec. 328.311-2 Agency solicitation provisions and contract clauses.
The contracting officer shall insert the clause at 352.228-7,
Insurance--Liability to Third Persons, in all solicitations and
resulting cost-reimbursement contracts, in lieu of the clause at FAR
52.228-7 required by FAR 28.311-1. This is an authorized deviation.
PART 330_COST ACCOUNTING STANDARDS
Subpart 330.2_CAS Program Requirements
Sec.
Sec. 330.201 Contract requirements.
Sec. 330.201-5 Waiver.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4247, Jan. 17, 2001, unless otherwise noted.
Subpart 330.2_CAS Program Requirements
Sec. 330.201 Contract requirements.
Sec. 330.201-5 Waiver.
(c) The requirements of FAR 30.201-5 shall be exercised by the
Director, Office of Acquisition Management (DOAM). Requests for waivers
shall be forwarded through normal acquisition channels to the DOAM.
PART 332_CONTRACT FINANCING
Subpart 332.4_Advance Payments for Non-Commercial Items
Sec.
Sec. 332.402 General.
Sec. 332.403 Applicability.
Sec. 332.407 Interest.
Sec. 332.409 Contracting officer action.
Sec. 332.409-1 Recommendation for approval.
Subpart 332.5_Progress Payments Based on Costs
Sec. 332.501 General.
Sec. 332.501-2 Unusual progress payments.
Subpart 332.7_Contract Funding
Sec. 332.702 Policy.
Sec. 332.703 Contract funding requirements.
Sec. 332.703-1 General.
Sec. 332.704 Limitations of cost or funds.
Sec. 332.705 Contract clauses.
Sec. 332.705-2 Clauses for limitation of costs or funds.
Subpart 332.9_Prompt Payment
Sec. 332.902 Definitions.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4247, Jan. 17, 2001, unless otherwise noted.
Subpart 332.4_Advance Payments for Non-Commercial Items
Sec. 332.402 General.
(e) The determination that the making of an advance payment is in
the
[[Page 57]]
public interest (see FAR 32.402(c)(1)(iii)(A)) shall be made by the
respective chief of the contracting office (CCO)(not delegable).
Sec. 332.403 Applicability.
All contracts for research work 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.
Sec. 332.407 Interest.
(d) The HCA (not delegable) is authorized to make the determinations
in FAR 32.407(d) and as follows. In addition to the interest-free
advance payments for the types of contracts listed in FAR 32.407(d),
advance payments without interest may be approved for nonprofit
contracts which are without fee with educational institutions and other
nonprofit organizations, whether public or private, which are for the
performance of work involving health services, educational programs, or
social service programs, including, but not limited to, programs such
as:
(1) Community health representative services for an Indian Tribe or
Band;
(2) Narcotic addict rehabilitative services;
(3) Comprehensive health care service program 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 handicapped
persons including captioned films for the hearing impaired;
(8) Operation of language or area centers;
(9) Conduct of biomedical research and support services;
(10) Research surveys or demonstrations involving the training and
placement of health manpower and health professionals, and dissemination
of related information; and
(11) Surveys or demonstrations in the field of social service.
Sec. 332.409 Contracting officer action.
Sec. 332.409-1 Recommendation for approval.
The information in FAR 32.409-1 (or FAR 32.409-2) shall be
transmitted to the HCA in the form of a briefing memorandum.
Subpart 332.5_Progress Payments Based on Cost
Sec. 332.501 General.
Sec. 332.501-2 Unusual progress payments.
(a)(3) The approval of an unusual progress payment shall be made by
the head of the contracting activity (HCA)(not delegable).
Subpart 332.7_Contract Funding
Sec. 332.702 Policy.
An incrementally funded contract is a contract in which the total
work effort is to be performed over multiple time periods and funds are
allotted to cover discernible phases or increments of performance.
(a) Incremental funding may be applied to cost-reimbursement type
contracts for the acquisition of research and development and other
types of nonpersonal, nonseverable services. It shall not be applied to
contracts for construction services, architect-engineer services, or
severable services.Incremental funding allows nonseverable cost-
reimbursement contracts, awarded for more than one year, to be funded
from succeeding fiscal years.
(b) It is departmental policy that contracts for projects of
multiple year duration be fully funded, whenever possible, to cover the
entire project. However, incrementally funded contracts may be used
when:
(1) A project, which is part of an approved program, is anticipated
to be of multiple year duration, but funds are not currently available
to cover the entire project;
(2) The project represents a valid need for the fiscal year in which
the contract is awarded and of the succeeding fiscal years of the
project's duration, during which additional funds
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may be obligated by increasing the allotment to the contract;
(3) The project is so significant to the approved program that there
is reasonable assurance that it will command a high priority for
proposed appropriations to cover the entire multiple year duration; and
(4) The statement of work is specific and is defined by separate
phases or increments so that, at the completion of each, progress can be
effectively measured.
Sec. 332.703 Contract funding requirements.
Sec. 332.703-1 General.
(b) The following general guidelines are applicable to incrementally
funded contracts:
(1) The estimated total cost of the project (all planned phases or
increments) is to be taken into consideration when determining the
requirements which must be met before entering into the contract; i.e.,
justification for noncompetitive acquisition, approval or award, etc.
(2) The RFP and resultant contract are to include a statement of
work which describes the total project covering the proposed multiple
year period of performance and indicating timetables consistent with
planned phases or increments and corresponding allotments of funds.
(3) Offerors will be expected to respond to RFPs with technical and
cost proposals for the entire project indicating distinct break-outs of
the planned phases or increments, and the multiple year period of
performance.
(4) Negotiations will be conducted based upon the total project,
including all planned phases or increments, and the multiple year period
of performance.
(5) Sufficient funds must be obligated under the basic contract to
cover no less than the first year of performance, unless the contracting
officer determines it is advantageous to the Government to fund the
contract for a lesser period. In that event, the contracting officer
shall ensure that the obligated funds are sufficient to cover a complete
phase or increment of performance representing a material and measurable
part of the total project, and the contract period shall be reduced
accordingly.
(6) Because of the magnitude of the scope of work and multiple year
period of performance under an incrementally funded contract, there is a
critical need for careful program planning. Program planning must
provide for appropriate surveillance of the contractor's performance and
adequate controls to ensure that projected funding will not impinge on
the program office's ability to support, within anticipated
appropriations, other equally important contract or grant programs.
(7) An incrementally funded contract must contain precise
requirements for progress reports to enable the project officer to
effectively monitor the contract. The project officer should be required
to prepare periodic performance evaluation reports to facilitate the
program office's ultimate decision to allot additional funds under the
contract.
Sec. 332.704 Limitation of cost or funds.
For detailed instruction regarding administrative actions in
connection with anticipated cost overruns, see subpart 342.71
Sec. 332.705 Contract clauses.
Sec. 332.705-2 Clauses for limitation of costs or funds.
(c)(1) When using the Limitation of Funds clause (FAR 52.232-22) in
the solicitation and resultant incrementally funded contract, the
contracting officer shall insert the following legend between the clause
title and the clause text:
(This clause supersedes the Limitation of Cost clause found in the
General Provisions of this contract.)
(2) The contracting officer shall also include a clause reading
substantially as that shown in 352.232-74 in the Special Provisions of
the resultant incrementally funded contract.
(3) The request for proposals must inform prospective offerors of
the Department's intention to enter into an incrementally funded
contract. Therefore, the contracting officer shall include the provision
at 352.232-75 in the request for proposals whenever the use
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of incremental funding is contemplated.
Subpart 332.9_Prompt Payment
Sec. 332.902 Definitions.
Fiscal office means the office responsible for: determining whether
interest penalties are due a contractor and, if so, the amount;
determining whether an invoice offers a financially advantageous
discount; maintaining records for and submission of prompt payment
reports to the Deputy Assistant Secretary, Finance (DASF), ASMB, OS; and
processing payments to the Treasury Department to allow for payment to a
contractor when due. The fiscal office may fulfill the roles of the
``designated billing office'' and the ``designated payment office.''
PART 333_PROTESTS, DISPUTES, AND APPEALS
Subpart 333.1_Protests
Sec.
Sec. 333.102 General.
Sec. 333.103 Protests to the agency.
Sec. 333.104 Protests to GAO.
Subpart 333.2_Disputes and Appeals
Sec. 333.203 Applicability.
Sec. 333.209 Suspected fraudulent claims.
Sec. 333.211 Contracting officer's decision.
Sec. 333.212 Contracting officer's duties upon appeal.
Sec. 333.212-70 Formats.
Sec. 333.213 Obligation to continue performance.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4249, Jan. 17, 2001, unless otherwise noted.
Subpart 333.1_Protests
Sec. 333.102 General.
(a) Contracting officers shall consider all protests or objections
regarding the award of a contract, whether submitted before or after
award, provided the protests are filed in a timely manner and are
submitted by interested parties. To be considered timely, protests based
on alleged improprieties in any type of solicitation which are apparent
before bid opening or the closing date for receipt of proposals shall be
filed prior to bid opening or the closing date for receipt of proposals.
In the case of negotiated acquisitions, alleged improprieties which do
not exist in initial solicitations, but which are subsequently
incorporated by amendment, must be protested not later than the next
closing date for receipt of proposals following the incorporation of the
amendment. In other cases, protests shall be filed not later than ten
(10) calendar days after the basis for protest is known or should have
been known, whichever is earlier. Provided a protest has been filed
initially with the contracting officer, any subsequent protest to the
Secretary or GAO filed within ten (10) calendar days of notification of
adverse action will be considered. Written confirmation of all oral
protests shall be requested from protestants and must be timely filed.
(g)(1) The Office of Acquisition Management (OAM) has been
designated as the headquarters office to serve as the liaison for
protests lodged with GAO. Within the OAM, the Departmental Protest
Control Officer (DPCO) has been designated as the individual to be
contacted by GAO.
(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. The protest control officer should be a senior
acquisition specialist in the headquarters acquisition staff office. In
addition, contracting activities should designate similar officials
within their principal components to the extent practicable and
feasible. A copy of each appointment and termination of appointment of
protest control officers shall be forwarded to the Director, OAM.
Sec. 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 Office of General
Counsel--Business and Administrative Law Division (OGC-BAL). If the
protest has been lodged with the Secretary, is addressed to the
Secretary,
[[Page 60]]
or requests referral to the Secretary, approval shall also be obtained
from the Director, OAM before making the award.
(2) The contracting officer shall require written confirmation of
any oral protest. To be considered timely, the written confirmation must
be filed in accordance with the applicable provisions in 333.102(a). In
the following cases, written protests received by the contracting
officer before award shall be forwarded, through acquisition channels,
to the DPCO for processing. Files concerning these protests shall be
submitted in duplicate, or as otherwise specified by the DPCO and sent
in the most expeditious manner, marked ``IMMEDIATE ACTION--PROTEST
BEFORE AWARD'', and contain the documentation referenced in
333.104(a)(3).
(i) The protestant requests referral to the Secretary of Health and
Human Services;
(ii) The protest is known to have been lodged with the Comptroller
General or the Secretary, or is addressed to either; or
(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 protest be considered by the Secretary or the
Comptroller General. Otherwise, protests addressed to the contracting
officer may be answered by the contracting officer, with the concurrence
of the contracting activity's protest control officer and OGC-BAL.
(3) Protests received after award shall be treated as indicated in
FAR 33.103(b)(3).
Sec. 333.104 Protests to GAO.
(a) General procedures. (3) Protests lodged with GAO, whether before
or after award, shall be processed by the DPCO. Protest files shall be
prepared by the contracting office and distributed as follows: two
copies to the DPCO, one copy to the contracting activity's protest
control officer, and one copy to OGC-BAL. Files shall include the
following documentation:
(i) The contracting officer's statement of facts and circumstances,
including a discussion of the merits of the protest, and conclusions and
recommendations, including documentary evidence on which they are based.
(ii) A copy of the IFB or RFP.
(iii) A copy of the abstract of bids or proposals.
(iv) A copy of the bid or proposal of the successful offeror to whom
award has been made or is proposed to be made.
(v) A copy of the bid or proposal of the protestant, if any.
(vi) The current status of award. 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.
(vii) A copy of any mutual agreement to suspend work on a no-cost
basis, when appropriate (see FAR 33.104(c)(4)).
(viii) Copies of the notice of protest given offerors and other
parties when the notice is appropriate (see FAR 33.104(a)(2)).
(ix) A copy of the technical evaluation report, when applicable, and
a copy of each evaluator's rating for relevant proposals.
(x) A copy of the negotiation memorandum, when applicable.
(xi) The name and telephone number of the person in the contracting
office who may be contacted for information relevant to the protest.
(xii) A copy of the competitive range memorandum. and
(xiii) Any document which is referred to in the contracting
officer's statement of facts. The files shall be assembled in an orderly
manner and shall include an index of enclosures.
(4) The DPCO is responsible for making the necessary distributions
referenced in FAR 33.104 (a)(4).
(5) The contracting officer shall furnish the protest file
containing the documentation specified in paragraph (a)(3) of this
section, except the item in paragraph (a)(3)(i), to the DPCO within
fourteen (14) calendar days from receipt of the protest. The contracting
officer shall provide the documentation required by item (a)(3)(i) of
this section to the DPCO within twenty-one (21) calendar days from
receipt of the protest. Since the statute allows only a short time
period in which to respond
[[Page 61]]
to protests lodged with GAO, the contracting officer shall handle each
protest on a priority basis. The DPCO shall prepare the report and
submit it and the protest file to GAO in accordance with FAR
33.104(a)(4)(i).
(6) Since the DPCO will furnish the report to GAO, the protestor,
and other interested parties, comments on the report from the protestor
and other interested parties will be requested to be sent to the DPCO.
(7) The Office of Acquisition Management (OAM) has been designated
as the headquarters office, and the DPCO as the individual, that GAO
should contact concerning all 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 head of the
contracting activity (HCA)(not delegable), and forward it, along with a
written request for approval to make the award, to the Deputy Assistant
Secretary for Grants and Acquisition Management (DASGAM).
(2) If the request to make an award notwithstanding the protest is
approved by the DASGAM, the DPCO shall notify GAO. Whether the request
is approved or not, the DPCO shall telephonically notify the contracting
activity's protest control officer of the decision of the DASGAM, and
the contracting activity's protest control officer shall immediately
notify the contracting officer. The DPCO shall confirm the decision by
memorandum to the contracting activity's protest control officer.
(4) The contracting officer shall prepare the protest file in
accordance with paragraph (a)(3) of this section, and forward the
required number of copies to the DPCO (see paragraph (a)(5) of this
section).
(c) Protests after award. (2) If the contracting officer believes
performance should be allowed to continue notwithstanding the protest, a
finding shall be prepared by the contracting officer using the criteria
in FAR 33.104(c)(2), executed by the HCA (not delegable), and forwarded,
along with a written request for approval, to the Director, OAM. The
same procedures for notification stated in paragraph (b)(2) of this
section shall be followed.
(6) The contracting officer shall prepare the protest file in
accordance with paragraph (a)(3) of this section, and forward the
required number of copies to the DPCO (see paragraph (a)(5) of this
section).
(d) Findings and notice. The contracting officer shall perform the
actions required by FAR 33.104 (d); however, notification to GAO and
other interested parties shall be made by the DPCO.
(g) Notice to GAO. The Deputy Assistant Secretary for Grants and
Acquisition Management shall be the 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 the DPCO in time
to meet the submittal date established by GAO. The DPCO will notify the
contracting officer of the submittal date after GAO has finalized its
requirements.
Subpart 333.2_Disputes and Appeals
Sec. 333.203 Applicability.
(c) The Armed Services Board of Contract Appeals (ASBCA) has been
designated by the Secretary as the authorized ``Board'' to hear and
determine disputes for the Department.
Sec. 333.209 Suspected fraudulent claims.
The contracting officer shall submit any instance of a contractor's
suspected fraudulent claim to the Office of the Inspector General for
investigation.
Sec. 333.211 Contracting officer's decision.
(a)(2) The contracting officer shall refer a proposed final decision
to the Office of General Counsel, Business and Administrative Law
Division (OGC-BAL), for advice as to the legal sufficiency and format
before sending the final decision to the contractor. The contracting
officer shall provide OGC-BAL with the pertinent documents
[[Page 62]]
with the submission of each proposed final decision.
(a)(4)(v) When using the paragraph in FAR 33.211 (a)(4)(v), the
contracting officer shall insert the words ``Armed Services'' 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 his/her final decision. If an appeal from the
final decision has been taken to the ASBCA, the contracting officer will
forward his/her recommended action to OGC-BAL with the supplement to the
contract file which supports the recommended correction or amendment.
Sec. 333.212 Contracting officer's duties upon appeal.
(a) Appeals shall be governed by the rules set forth in the ``Rules
of the Armed Services Board of Contract Appeals'', or by the rules
established by the U.S. Court of Federal Claims, as appropriate.
(b) OGC-BAL is designated as the Government Trial Attorney to
represent the Government in the defense of appeals before the ASBCA. A
decision by the ASBCA will be transmitted by the Government Trial
Attorney to the appropriate contracting officer for compliance in
accordance with the ASBCA's decision.
(c) If an appeal is filed with the ASBCA, the contracting officer
shall assemble a file within 30 days of receipt of an appeal, or advice
that an appeal has been filed, that consists of all documents pertinent
to the appeal, including:
(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
Board; and
(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, one for the ASBCA, 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 concerned
contracting officer, acting under the guidance of the Government Trial
Attorney, shall be responsible for arranging for the presence of
Government witnesses and specified physical and documentary evidence at
both the pre-hearing conference and hearing.
(e) If a contractor which has filed an appeal with the ASBCA 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 will notify the ASBCA of the disposition of
the dispute in accordance with Rule 27 of the ASBCA.
(f) If the contractor has elected to appeal to the U.S. Court of
Federal Claims, the U.S. Department of Justice will represent the
Department. However, the contracting officer shall still coordinate all
actions through OGC-BAL.
Sec. 333.212-70 Formats.
(a) The following format is suggested for use in transmitting appeal
files to the ASBCA:
Your reference:_________________________________________________________
(Docket No.)
(Name)
Recorder, Armed Services Board of Contract Appeals
Skyline Six
5109 Leesburg Pike
Falls Church, Virginia 22041
Dear (Name):
Transmitted herewith are documents relative to the appeal under
Contract No. ___ with the ______
(Name of contractor)
[[Page 63]]
in accordance with the procedures under Rule 4. The Government Trial
Attorney for this case is
_______________________________________________________________________
_______________________________________________________________________
(Insert Division of Business and Administrative Law, 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 should be addressed to:
_______________________________________________________________________
(Insert name and address of cognizant finance office.)
_______________________________________________________________________
Sincerely yours,
Contracting Officer
Enclosures
(b) The following format is suggested for use in notifying the
appellant that the appeal file was submitted to the ASBCA:
(Contractor Address)
_______________________________________________________________________
_______________________________________________________________________
Dear ___:
An appeal file has been compiled relative to the appeal under
Contract No. ___, and has been submitted to the Armed Services Board of
Contract Appeals (ASBCA). The enclosed duplicate of the appeal file is
identical to that submitted to the Board, except that contract documents
which you already have been excluded. You may furnish or suggest any
additional information deemed pertinent to the appeal to the Armed
Services Board of Contract Appeals according to their rules.
The ASBCA will provide you with further information concerning this
appeal.
Sincerely yours,
Contracting Officer
Enclosure
Sec. 333.213 Obligation to continue performance.
(a) The Disputes clause at FAR 52.233-1 shall be used 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, he/she must request approval for its use from the chief
of the contracting office.
[[Page 64]]
SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING
PART 334_MAJOR SYSTEM ACQUISITION
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4251, Jan. 17, 2001, unless otherwise noted.
Sec. 334.003 Responsibilities.
The Department's implementation of OMB Circular No. A-109 may be
found in Chapter 1-150 of the General Administration Manual.
PART 335_RESEARCH AND DEVELOPMENT CONTRACTING
Sec.
Sec. 335.070 Cost-sharing.
Sec. 335.070-1 Policy.
Sec. 335.070-2 Amount of cost-sharing.
Sec. 335.070-3 Method of cost-sharing.
Sec. 335.070-4 Contract award.
Sec. 335.071 Special determinations and findings affecting research and
development contracting.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4251, Jan. 17, 2001, unless otherwise noted.
Sec. 335.070 Cost-sharing.
Sec. 335.070-1 Policy.
(a) The use of cost-sharing type contracts should be encouraged to
contribute to the cost of performing research where there is a
probability that the contractor will receive present or future benefits
from participation, such as, increased technical know-how, training to
employees, acquisition of equipment, use of background knowledge in
future contracts, etc. Cost-sharing is intended to serve the mutual
interests of the Government and the performing organization by helping
to assure efficient utilization of the resources available for the
conduct of research projects and by promoting sound planning and prudent
fiscal policies by the performing organization. Encouragement should be
given to organizations to contribute to the cost of performing research
under contracts unless the contracting officer determines that a request
for cost-sharing would not be appropriate because of the following
circumstances:
(1) The particular research 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 request for proposals for a specific project.
(2) The research effort has only minor relevance to the non-Federal
activities of the performing organization, and the organization is
proposing to undertake the research 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. Cost-sharing should generally
not be requested if cost-sharing would require the Government to provide
funds through some other means (such as fees) to enable the organization
to cost-share. It should be recognized that those organizations which
are predominantly engaged in research and development and have little or
no production or other service activities may not be in a favorable
position to make a cost contribution.
(b) The responsibility for negotiating cost-sharing is that of the
contracting office. Each research contract file should show whether the
contracting officer considered cost-sharing appropriate for that
particular contract and in what amount. If cost-sharing was not
considered appropriate, the file must indicate the 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 may
wish to coordinate with the project officer before documenting this
decision.
(c) If the contracting officer considers cost-sharing to be
appropriate for a research contract and the contractor refuses to accept
this type of contract, the award may be made without cost-sharing, if
the contracting officer concludes that payment of the
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full cost of the research effort is necessary in order to obtain the
services of that particular contractor.
Sec. 335.070-2 Amount of cost-sharing.
When cost-sharing is determined to be appropriate, the following
guidelines shall be utilized in determining the amount of cost
participation by the contractor.
(a) The amount of cost participation should depend to a large extent
on whether the research 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. It should be recognized that those organizations which are
predominantly engaged in research and development have little or no
production or other service activities and may not be in a favorable
position to derive a monetary benefit from their research under Federal
agreements. Therefore, contractor cost participation could reasonably
range from as little as 1 percent or less of the total project cost, to
more than 50 percent of the total project cost. Ultimately, the
contracting officer should bear in mind that cost-sharing is a
negotiable item. As such, the amount of cost-sharing should be
proportional to the anticipated value of the contractor's gain.
(b) If the performing organization will not acquire title or the
right to use inventions, patents, or technical information resulting
from the research project, it would generally be appropriate to obtain
less cost-sharing than in cases in which the performer acquires these
rights.
(c) A fee or profit will usually not be paid to the performing
organization if the organization is to contribute to the cost of the
research 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 research is expected to be of
only minor value to the performing organization and if cost-sharing is
not required by statute, 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,
in the view of the operating divisions or their subordinate elements, an
area of research requires special stimulus in the national interest.
Sec. 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. Costs so contributed may not
be charged to the Government under any other grant or contract
(including allocations to other grants or contracts as part of any
independent research and development program).
Sec. 335.070-4 Contract award.
In consonance with the Department's objectives of competition and
support of the small business program, award of contracts should not be
made solely on the basis of ability or willingness to cost-share. Awards
should be made primarily on the contractor's competence and only after
adequate competition has been obtained among large and small business
organizations whenever possible. The offeror's willingness to share
costs should not be considered in the technical evaluation process but
as a business consideration, which is secondary to selecting the best
qualified source.
Sec. 335.071 Special determinations and findings affecting research and
development contracting.
OPDIV heads for health agencies shall sign individual and class
determinations and findings for:
(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 a research contract
pursuant to 42 U.S.C. 241(a)(7).
[[Page 66]]
SUBCHAPTER G_CONTRACT MANAGEMENT
PART 342_CONTRACT ADMINISTRATION
Subpart 342.7_Indirect Cost Rates
Sec.
Sec. 342.705 Final indirect cost rates.
Subpart 342.70_Contract Monitoring
Sec. 342.7001 Purpose.
Sec. 342.7002 Contract monitoring responsibilities.
Sec. 342.7003 Withholding of contract payments.
Sec. 342.7003-1 Policy.
Sec. 342.7003-2 Procedures.
Sec. 342.7003-3 Withholding payments.
Subpart 342.71_Administrative Actions for Cost Overruns
Sec. 342.7001 Scope of subpart.
Sec. 342.7101 Contract administration.
Sec. 342.7101-1 General.
Sec. 342.7101-2 Procedures.
Sec. 342.7102 Contract modifications.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4252, Jan. 17, 2001, unless otherwise noted.
Subpart 342.7_Indirect Cost Rates
Sec. 342.705 Final indirect cost rates.
The Director, Division of Cost Allocation of the Program Support
Center within the servicing HHS regional office has been delegated the
authority to establish indirect cost rates, research patient care rates,
and, as necessary, fringe benefit, computer, and other special costing
rates for use in contracts and grants awarded to State and local
governments, colleges and universities, hospitals, and other nonprofit
organizations.
Subpart 342.70_Contract Monitoring
Sec. 342.7001 Purpose.
Contract monitoring is an essential element of contract
administration and the acquisition process. This subpart describes the
Department's operating concepts regarding contract monitoring, performed
jointly by the project officer and the contracting officer, to ensure
that the required monitoring is performed, timely remedial action is
taken when necessary, and a determination is made that contract
objectives have been met.
Sec. 342.7002 Contract monitoring responsibilities.
(a) Upon execution of the contract, the mutual obligations of the
Government and the contractor are established by, and limited to, the
written stipulations in the contract. Unless authorized by the
contracting officer, HHS personnel shall not direct or request the
contractor to assume any obligation or take any actions not specifically
required by the contract. Only the contracting officer may impose a
requirement which will result in a change to the contract. All contract
changes must be directed in writing or confirmed in writing by the
contracting officer.
(b) The contracting officer is responsible for assuring compliance
with all terms of the contract, especially the statutory, legal,
business, and regulatory provisions. Whether or not a postaward
conference is held, the contracting officer shall inform the contractor
by letter (if not already stipulated by contract provisions) of the
authorities and responsibilities of the Government personnel with whom
the contractor will be dealing throughout the life of the contract.
(c) The contracting officer must depend on program, technical, and
other personnel for assistance and advice in monitoring the contractor's
performance, and in other areas of postaward administration. The
contracting officer must assure that responsibilities assigned to these
personnel are understood and carried out. 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 to assist or advise the contracting officer (or act as his/her
representative when so designated by the contracting officer) in
activities such as:
[[Page 67]]
(i) Providing technical monitoring during contract performance, and
issuing letters to the contractor and contracting officer relating to
delivery, acceptance, or rejection in accordance with the terms of the
contract;
(ii) Assessing contractor performance, including inspection and
testing of products and evaluation of reports and data;
(iii) Recommending necessary changes to the schedule of work and
period of performance in order to accomplish the objectives of the
contract. This shall be accomplished by a written request to the
contracting officer, together with an appropriate justification and
funds availability citation;
(iv) Reviewing invoices/vouchers and recommending approval/
disapproval action by the contracting officer, to include comments
regarding anything unusual discovered in the review;
(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 role of the project officer in performing required aspects
of the contract monitoring process. In addition to those applicable
activities set forth in paragraph (c)(1) of this section, the project
officer shall:
(i) Submit periodic reports to the contracting officer that
concisely explain the status of the contract, and include recommended
actions for any problems reported. Provide the contracting officer with
written notification of evaluation and approval/disapproval of contract
deliverables and of completion of tasks or phases. The contracting
officer will, in turn, provide the contractor with written notification
of approval or disapproval unless the responsibility has been delegated
by the contracting officer, in which case the person responsible for
such action will notify the contractor and provide a copy to the
contracting officer for inclusion in the contract file;
(ii) Monitor the technical aspects of the contractor's business and
technical progress, identify existing and potential problems that
threaten performance, and immediately inform the contracting officer of
deviations from contract objectives, or from any technical or delivery
requirements, so that remedial measures may be instituted accordingly;
(iii) Provide immediate notification to the head of the program
office responsible for the program whenever it is determined that
program objectives are not being met, together with specific
recommendations of action to be taken. A copy of the project officer's
report and recommendation shall be transmitted to the contracting
officer for appropriate action;
(iv) Submit, within 120 days after contract completion, a final
assessment report to the contracting officer. The report should include
analysis of the contractor's performance, including the contract and
program objectives achieved and missed. A copy of the final assessment
report shall be forwarded to the head of the program office responsible
for the program for management review and follow-up, as necessary; and
(v) Accompany and/or provide, when requested, technical support to
the HHS auditor in the conduct of floor checks.
(3) The role of the contract administrator, auditor, cost analyst,
and property administrator in assisting or advising the contracting
officer in postaward administration activities such as:
(i) Evaluation of contractor systems and procedures, to include
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 of disputes under the Disputes clause and any
resultant appeals;
(iii) Modification or termination of the contract; and
(iv) Determination of the allowability of cost charges to incentive
or cost-reimbursement type contracts and progress payments under fixed-
price contracts. This is especially important when award is made to new
organizations or those with financial weaknesses.
[[Page 68]]
(d) The contracting officer is responsible for assuring that
contractor performance and contract monitoring are carried out in
conformance with contract provisions. If performance is not satisfactory
or if problems are anticipated, it is essential that the contracting
officer take immediate action to protect the Government's rights under
the contract. The contracting officer shall notify his/her immediate
supervisor of problems that cannot be resolved within contract
limitations and whenever contract or program objectives are not met. The
notification shall include a statement of action being take by the
contracting officer.
Sec. 342.7003 Withholding of contract payments.
Sec. 342.7003-1 Policy.
(a) All solicitations and resultant contracts shall contain the
withholding of contract payments clause at 352.232-9, and an excusable
delays clause, or a clause which incorporates the definition of
excusable delays. The excusable delays clause at 352.249-14 shall be
used when the solicitation and resultant contract (other than purchase
orders) does not contain a default or other excusable delays clause.
(b) The transmittal letter used to convey the contract to each
contractor shall contain a notice which highlights the contractor's
agreement with the withholding of contract payments clause.
(c) No contract payment shall be made when any report required to be
submitted by the contractor is overdue, or the contractor fails to
perform or deliver work or services as required by the contract.
(d) The contracting officer shall issue a ten-day cure notice or
initiate appropriate termination action for any failure in the
contractor's performance as stated in paragraph (c) of this section.
Sec. 342.7003-2 Procedures.
(a) The contracting officer is responsible for initiating immediate
action to protect the Government's rights whenever the contractor fails
to comply with either the delivery or reporting provisions of the
contract. Compliance with the reporting provisions includes those
reports to be submitted directly to the payment office. If such a report
is not submitted on time, the contracting officer is to be notified
promptly by the payment officer.
(b) When the contract contains a termination for default clause, the
contractor's failure to either submit any required report when due or
perform or deliver services or work when required by the contract is to
be considered a default in performance. In either circumstance, the
contracting officer is to immediately issue a formal ten-day cure notice
pursuant to the default clause. The cure notice is to follow the format
prescribed in FAR 49.607 and is to include a statement to the effect
that contract payments will be withheld if the default is not cured or
is not determined to be excusable.
(1) If the default is cured or is determined to be excusable, the
contracting officer is not to 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 is to
initiate withholding action on all contract payments and is to 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 contractor's failure to either submit any required report
when due or perform or deliver services or work when required by the
contract is to be considered a failure to perform. In either
circumstance, the contracting officer is to immediately issue a written
notice to the contractor specifying the failure and providing a period
of ten days, or longer period as determined necessary by the contracting
officer, in which the contractor is to cure the failure or establish an
excusable delay. The contracting officer is to include a statement in
the written notice to the effect that contract payments will be withheld
if the failure is not cured or is not determined to be excusable.
(1) If the failure is cured or is determined to be excusable, the
contracting officer is not to initiate the withholding action.
[[Page 69]]
(2) If the failure is not determined to be excusable or a response
is not received within the allotted time, the contracting officer is to
initiate withholding action on all contract payments and is to determine
whether termination for convenience or other action would be in the best
interest of the Government.
(d) The contracting officer should consult FAR subpart 49.4 for
further guidance before taking any of the actions described in this
section.
Sec. 342.7003-3 Withholding payments.
(a) When making the determination that contract payments should be
withheld in accordance with the Withholding of Contract Payments clause,
the contracting officer is to immediately notify the servicing finance
office in writing of the determination to suspend payments. The notice
of suspension is to contain all elements of information required by the
payment office to properly identify the contract and the applicable
accounts involved.
(b) The contracting officer is to 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 is to immediately notify, in writing, all recipients
of the notice of suspension that the suspension is to be lifted and
contract payments are to be resumed.
(d) When exercising actions regarding the withholding of payment
procedures, the contracting officer must be careful not to waive any of
the Government's rights when corresponding with the contractor or when
taking any other actions.
Subpart 342.71_Administrative Actions for Cost Overruns
Sec. 342.7100 Scope of subpart.
This subpart sets forth the procedures to be followed when a cost
overrun is anticipated; i.e., the allowable actual cost of performing a
cost-reimbursement type contract is expected to exceed the total
estimated cost specified in the contract.
Sec. 342.7101 Contract administration.
Sec. 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.
Sec. 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 is to include:
(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, overhead, etc.) to be furnished in the
following format:
(i) Original estimate,
(ii) Costs incurred to date,
(iii) Estimated cost to completion,
(iv) Revised estimate, and
(v) Amount of adjustment.
(5) The factors responsible for the increase, i.e., error in
estimate, changed conditions, etc.
(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 an impending overrun,
the contracting officer shall:
(1) Immediately advise the appropriate program office and furnish a
copy of the notice and any other data received;
[[Page 70]]
(2) Request audit or cost advisory services, and technical support,
as necessary, for evaluation of information and data received; and
(3) Maintain continuous follow-up with the program office to obtain
a timely decision as to whether the work under the contract should be
continued and additional funds provided, or the contract terminated. The
decision of the program office must be supported by an appropriate
written statement and funding authority, or a formal request for
termination, when applicable. After a programming and funding decision
is received from the program office, the contracting officer shall
promptly notify the contractor in writing that:
(i) A specified amount of additional funds has been allotted to the
contract by a contractual instrument; or
(ii) Work will be discontinued when the funds allotted to the
contract have been exhausted, and that any work performed after that
date is at the contractor's risk; or
(iii) The Government is considering whether additional funds should
be allotted to the contract and will notify the contractor as soon as
possible, but that any work performed after the funds then allocated to
the contract have been exhausted is at the contractor's risk. Timely,
formal notification of the Government's intention is essential in order
to preclude loss of contractual rights in the event of dispute,
termination, or litigation.
(c) If program requirements permit, contracting officers should
refrain from issuing any contractual documents which will require new
work or an extension of time, pending resolution of an overrun or
additional fund request.
Sec. 342.7102 Contract modifications.
(a) Modifications to contracts containing the Limitation of Cost
clause shall include either:
(1) A provision increasing the estimated or ceiling amount referred
to in the Limitation of Cost clause of the contract and stating that the
clause will thereafter apply in respect to the increased amount; or
(2) A provision stating that the estimated or ceiling amount
referred to in the contract is not changed by the modification and that
the Limitation of Cost clause will continue to apply with respect to the
amount in effect prior to the modification.
(b) A fixed-fee provided in a contract shall not be changed when
funding a cost overrun. Changes in fixed-fee will be made only to
reflect changes in the scope of work which justify an increase or
decrease in fee.
[[Page 71]]
SUBCHAPTER H_CLAUSES AND FORMS
PART 352_SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 352.2_Texts of Provisions and Clauses
Sec.
Sec. 352.202-1 Definitions.
Sec. 352.215-1 Instructions to offerors--Competitive acquisition.
Sec. 352.215-70 Late proposals and revisions.
Sec. 352.216-72 Additional cost principles.
Sec. 352.223-70 Safety and health.
Sec. 352.224-70 Confidentiality of information.
Sec. 352.228-7 Insurance--Liability to third persons.
Sec. 352.232-9 Withholding of contract payments.
Sec. 352.232-74 Estimated cost and fixed fee--Incrementally funded
contract.
Sec. 352.232-75 Incremental funding.
Sec. 352.233-70 Litigation and claims.
Sec. 352.242-71 Final decisions on audit findings.
Sec. 352.249-14 Excusable delays.
Sec. 352.270-1 Accessibility of meetings, conferences, and seminars to
persons with disabilities.
Sec. 352.270-2 Indian preference.
Sec. 352.270-3 Indian preference program.
Sec. 352.270-4 Pricing of adjustments.
Sec. 352.270-5 Key personnel.
Sec. 352.270-6 Publications and publicity.
Sec. 352.270-7 Paperwork Reduction Act.
Sec. 352.270-8 Protection of human subjects.
Sec. 352.270-9 Care of laboratory animals.
Authority: 5 U.S.C. 301, 40 U.S.C. 486(c).
Source: 66 FR 4255, Jan. 17, 2001, unless otherwise noted.
Subpart 352.2_Texts of Provisions and Clauses
Sec. 352.202-1 Definitions.
As prescribed in 302.201, the FAR Definitions clause at 52.202-1 is
to be used as modified:
Definitions (Jan. 2001)
(a) Substitute the following as paragraph (a):
``(a) The term ``Secretary'' or ``Head of the Agency'' (also called
``Agency Head'') means the Secretary, Under 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) Add the following paragraph (h) or its alternate, as
appropriate:
``(h) The term ``Project Officer'' means the person representing the
Government for the purpose of technical monitoring of contract
performance. The Project Officer is not authorized to issue any
instructions or directions which effect any increases or decreases in
the scope of work or which would result in the increase or decrease of
the price of this contract or a change in the delivery dates or
performance period of this contract.''
or
Alternate:
``(h) The term ``Project Officer'' means the person representing the
Government for the purpose of technical monitoring of contract
performance. The Project Officer is not authorized to issue any
instructions or directions which effect any increases or decreases in
the scope of work or which would result in the increase or decrease of
the cost of this contract or a change in performance period of this
contract. In addition, the Project Officer is not authorized to receive
or act upon the Contractor's notification of a revised cost estimate
pursuant to the Limitation of Cost or Limitation of Funds clause of this
contract.''
Sec. 352.215-1 Instructions to offerors--Competitive acquisition.
Insert the following paragraph (e) in place of paragraph (e) of the
provision at FAR 52.215-1:
(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, and
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 legend,
specifying the particular portions of the proposal which are to be
restricted in accordance with the conditions of the legend. The
Government's determination to withhold or disclose a record will be
based upon the particular circumstances involving the record in question
and whether the record may be exempted from disclosure under the Freedom
of Information Act. The legend reads:
Unless disclosure is required by the Freedom of Information Act, 5
U.S.C. 552, as
[[Page 72]]
amended, (the Act) as determined by Freedom of Information (FOI)
officials of the Department of Health and Human Services, data contained
in the portions of this proposal which have been specifically identified
by page number, paragraph, etc. by the offeror as containing restricted
information shall not be used or disclosed except for evaluation
purposes.
The offeror acknowledges that the Department may not be able to
withhold a record (data, document, etc.) nor deny access to a record
requested pursuant to the Act and that the Department's FOI officials
must make that determination. The offeror hereby agrees that the
Government is not liable for disclosure if the Department 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 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 should 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
legends or statements differing in substance from the above legend may
not be considered for award. The Government reserves the right to reject
any proposal submitted with a nonconforming legend.
Sec. 352.215-70 Late proposals and revisions.
As prescribed in 315.208, the following provision may be included in
the solicitation:
Late Proposals and Revisions (NOV 1986)
Notwithstanding the procedures contained in FAR 52.215-1(c)(3) of
the provision of this solicitation entitled Instructions to Offerors-
Competitive Acquisition, a proposal received after the date specified
for receipt may be considered if it offers significant cost or technical
advantages to the Government; and it was received before proposals were
distributed for evaluation, or within five calendar days after the exact
time specified for receipt, whichever is earlier.
(End of provision)
Sec. 352.216-72 Additional cost principles.
As prescribed in 316.307(j), insert the following clause in all
solicitations and resultant cost-reimbursement contracts:
Additional Cost Principles (OCT 1990)
(a) Bid and proposal costs. (1) Bid and proposal 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) Bid and proposal costs of the current accounting period are
allowable as indirect costs.
(3) Bid and proposal 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) Bid and proposal costs do not include independent research and
development costs covered by the following paragraph, or preaward costs
covered by paragraph 38 of Attachment B to OMB Circular A-122.
(b) Independent research and development costs. (1) Independent
research and development is research and development conducted by an
organization which is not sponsored by Federal or non-Federal contracts,
grants, or other agreements.
(2) Independent research and development 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 independent research and development, including its
proportionate share of indirect costs, are unallowable.
(End of clause)
Sec. 352.223-70 Safety and health.
The following clause, or one reading substantially the same, shall
be used as prescribed in 323.7002:
Safety and Health (JAN 2001)
(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 and/or enforced by the Environmental Protection Agency,
Occupational Safety and Health Administration and other agencies at the
Federal, State and
[[Page 73]]
local levels (Federal, State and local regulatory/enforcement agencies).
(b) Further, the Contractor shall take or cause to be taken
additional safety measures as the Contracting Officer, in conjunction
with the project or other appropriate officers, 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, an equitable
adjustment will be made 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;
and/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. Compliance with the provisions of this clause by
subcontractors will be the responsibility of the Contractor.
(End of Clause)
Sec. 352.224-70 Confidentiality of information.
The following clause is covered by the policy set forth in subpart
324.70 and is to be used in accordance with the instructions set forth
in 324.7004.
Confidentiality of Information (APR 1984)
(a) Confidential information, as used in this clause, means
information or data of a personal nature about an individual, or
proprietary information or data submitted by or pertaining to an
institution or organization.
(b) In addition to the types of confidential information described
in paragraph (a) of this clause, information which might require special
consideration with regard to the timing of its disclosure may derive
from studies or research, during which public disclosure of preliminary
unvalidated findings could create erroneous conclusions which might
threaten public health or safety if acted upon.
(c) The Contracting Officer and the Contractor may, by mutual
consent, identify elsewhere in this contract specific information and/or
categories of information which the Government will furnish to the
Contractor or that the Contractor is expected to generate which is
confidential. Similarly, the Contracting Officer and the Contractor may,
by mutual consent, identify such confidential information from time to
time during the performance of the contract. Failure to agree will be
settled pursuant to the ``Disputes'' clause.
(d) If it is established elsewhere in this contract that information
to be utilized under this contract, or a portion thereof, is subject to
the Privacy Act, the Contractor will follow the rules and procedures of
disclosure set forth in the Privacy Act of 1974, 5 U.S.C. 552a, and
implementing regulations and policies, with respect to systems of
records determined to be subject to the Privacy Act.
(e) Confidential information, as defined in paragraph (a) of this
clause, that is information or data of a personal nature about an
individual, or proprietary information or data submitted by or
pertaining to an institution or organization, shall not be disclosed
without the prior written consent of the individual, institution, or
organization.
(f) Written advance notice of at least 45 days will be provided to
the Contracting Officer of the Contractor's intent to release findings
of studies or research, which have the possibility of adverse effects on
the public or the Federal agency, as described in paragraph (b) of this
clause. If the Contracting Officer does not pose any objections in
writing within the 45-day period, the Contractor may proceed with
disclosure. Disagreements not resolved by the Contractor and the
Contracting Officer will be settled pursuant to the ``Disputes'' clause.
(g) Whenever the Contractor is uncertain with regard to the proper
handling of material under the contract, or if the material in question
is subject to the Privacy Act or is confidential information subject to
the provisions of this clause, the Contractor should
[[Page 74]]
obtain a written determination from the Contracting Officer prior to any
release, disclosure, dissemination, or publication.
(h) Contracting Officer determinations will reflect the result of
internal coordination with appropriate program and legal officials.
(i) The provisions of paragraph (e) of this clause shall not apply
when the information is subject to conflicting or overlapping provisions
in other Federal, State or local laws.
(End of clause)
Sec. 352.228-7 Insurance--Liability to third persons.
As prescribed in 328.311-2, contracting officers shall include the
following clause in all cost-reimbursement contracts, in lieu of the
clause at FAR 52.228-7:
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 judgements, 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 Contractor shall not be reimbursed 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;
[[Page 75]]
(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 the
offer that the offeror is partially immune from tort liability as a
State agency, 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, to 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 the
offer that the offeror is totally immune from tort liability as a State
agency, 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 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 required by
the Government, 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)
Sec. 352.232-9 Withholding of contract payments.
Insert the following clause in all solicitations and contracts other
than purchase orders:
Withholding of Contract Payments (APR 1984)
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, will 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 shall
promptly notify the Contractor of its intention to withhold payment of
any invoice or voucher submitted.
(End of clause)
Sec. 352.232-74 Estimated cost and fixed fee--Incrementally funded
contract.
The following clause, or one reading substantially as it, shall be
included in the Special Provisions of an incrementally funded contract:
Consideration-Estimated Cost and Fixed Fee (APR 1984)
(a) It is estimated that the total cost to the Government for full
performance of this contract will be $___, of which the sum of $___
represents the estimated reimbursable costs and $___ represents the
fixed-fee.
(b) Total funds currently available for payment and allotted to this
contract are $___, of which $___ represents the estimated reimbursable
costs and $___ represents the fixed-fee. For further provisions on
funding, see the Limitation of Funds clause.
(c) It is estimated that the amount currently allotted will cover
performance of Phase I which is scheduled to be completed by (date)___.
[[Page 76]]
(d) The Contracting Officer may allot additional funds to the
contract without the concurrence of the Contractor.
(End of clause)
Sec. 352.232-75 Incremental funding.
The following provision shall be included in all requests for
proposals whenever the use of incremental funding is contemplated:
Incremental Funding (JAN 2001)
(a) It is the Government's intention to negotiate and award a
contract using the incremental funding concepts described in the clause
entitled Limitation of Funds. Under the clause, which will be included
in the resultant contract, initial funds will be obligated under the
contract to cover the first year of performance. Additional funds are
intended to be allotted to the contract by contract modification, up to
and including the full estimated cost of the contract, to accomplish the
entire project. While it is the Government's intention to progressively
fund this contract over the entire period of performance up to and
including the full estimated cost, the Government will not be obligated
to reimburse the Contractor for costs incurred in excess of the periodic
allotments, nor will the Contractor be obligated to perform in excess of
the amount allotted.
(b) The Limitation of Funds clause to be included in the resultant
contract shall supersede the Limitation of Cost clause found in the
General Provisions.
(End of provision)
Sec. 352.233-70 Litigation and claims.
Insert the following clause in all solicitations and resultant cost-
reimbursement contracts:
Litigation and Claims (APR 1984)
The Contractor shall give the Contracting Officer immediate notice
in writing 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.'' 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. If the settlement or defense of an action or claim is
undertaken by the Government, 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 Contractor shall not be reimbursed or indemnified by the
Government 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)
Sec. 352.242-71 Final decisions on audit findings.
Insert the following clause in all solicitations and resultant cost-
reimbursement contracts.
Final Decisions on Audit Findings (APR 1984)
For the purpose of issuing final decisions under the Disputes clause
of this contract concerning monetary audit findings, the Contracting
Officer shall be that person with ultimate responsibility for making
that decision in accordance with Chapter 1-105, Resolution of Audit
Findings, of the Department's Grants Administration Manual.
(End of clause)
Sec. 352.249-14 Excusable delays.
Insert the following clause in all solicitations and resultant
contracts other than purchase orders which do not have either a default
or excusable
[[Page 77]]
delays clause, as prescribed in 342.7003-1(a):
Excusable Delays (APR 1984)
(a) Except with respect to failures of subcontractors, the
Contractor shall not be considered to have failed in performance of this
contract if such failure arises out of causes beyond the control and
without the fault or negligence of the Contractor.
(b) Such causes may include, but are not restricted to, acts of God
or of the public enemy, acts of the Government in either its sovereign
or contractual capacity, fires, floods, epidemics, quarantine
restrictions, strikes, freight embargoes, and unusually severe weather,
but in every case the failure to perform must be beyond the control and
without the fault or negligence of the Contractor. If the failure to
perform is caused by the failure of a subcontractor to perform, and if
such failure arises out of causes beyond the control of both the
Contractor and subcontractor, and without the fault or negligence of
either of them, the Contractor shall not be deemed to have failed in
performance of the contract, unless: the supplies or services to be
furnished by the subcontractor were obtainable from other sources, the
Contracting Officer shall have ordered the Contractor in writing to
procure such supplies or services from such other sources, and the
Contractor shall have failed to comply reasonably with such order. Upon
request of the Contractor, the Contracting officer shall ascertain the
facts and extent of such failure and, if he/she shall determine that any
failure to perform was occasioned by any one or more of the said causes,
the delivery schedule shall be revised accordingly, subject to the
rights of the Government under the termination clause hereof. (As used
in this clause, the terms ``subcontractor'' and ``subcontractors'' mean
subcontractor(s) at any tier.)
(End of clause)
Sec. 352.270-1 Accessibility of meetings, conferences, and seminars to
persons with disabilities.
The following clause is to be used in accordance with 370.102:
Accessibility of Meetings, Conferences, and Seminars to Persons with
Disabilities (JAN 2001)
The Contractor agrees as follows:
(a) Planning. The Contractor will 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
plan shall be submitted to the project officer for approval prior to
initiating action. ( A consolidated or master plan for contracts
requiring numerous meetings, conferences, or seminars may be submitted
in lieu of separate plans.)
(b) Facilities. Any facility to be utilized 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 28 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, any slope over 1:12 must be approved by the Project
Officer 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 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
[[Page 78]]
required by persons with sensory impairments to insure their complete
participation in the meeting, conference, or seminar.
(3) As 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 will 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 will 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 is responsible for making a reasonable effort to
ascertain the number of individuals with sensory impairments who plan to
attend the meeting, conference, or seminar. However, if it can be
determined that there will be no person with sensory impairment in
attendance, the provision of those services under paragraph (c) of this
clause for the nonrepresented group, or groups, is not required.
(End of clause)
Sec. 352.270-2 Indian preference.
The following clause shall be used as prescribed in 370.202(a):
Indian Preference (APR 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, those needs may be satisfied by selection of 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 business concerns, small
disadvantaged business concerns, and women-owned small business
concerns.
(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 thirty (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); and
(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.
[[Page 79]]
(End of clause)
Sec. 352.270-3 Indian preference program.
The following clause shall be used as prescribed in 370.202(b):
Indian Preference Program (APR 1984)
(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:
(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 twenty (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: A clear description of the supplies or services required,
including quantities, specifications, and delivery schedules which
facilitate the participation of Indian firms; 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)); Definitions for the terms
``Indian organization'' and ``Indian-owned economic enterprise'' as
prescribed under the ``Indian Preference'' clause of this contract; A
statement to be completed by the bidder or offeror that it is an Indian
organization or Indian-owned economic enterprise; and 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: The
numbers of Indians seeking employment for each employment position
available under this contract; The number and types of positions filled
by Indians and non-Indians, and the total number of Indians employed
under this contract; 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; Actions taken to
give preference to Indian organizations and Indian-owned economic
enterprises for subcontracting opportunities which exist under this
contract;
[[Page 80]]
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 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 until expiration of one (1) 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)
Sec. 352.270-4 Pricing of adjustments.
Insert the following clause in all solicitations and resultant
fixed-priced contracts other than purchase orders.
Pricing of Adjustments (JAN 2001)
When costs are a factor in determination of a contract price
adjustment pursuant to the ``Changes'' clause or any provision of this
contract, such costs shall be determined in accordance with the
applicable cost principles and procedures set forth below:
------------------------------------------------------------------------
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 (permforming
research and development
contracts only.
(e) Subpart 31.7 of the Federal Other nonprofit
Acquisition Regulation. institutions.
------------------------------------------------------------------------
(End of clause)
Sec. 352.270-5 Key personnel.
Insert the following clause in all solicitations and resultant cost-
reimbursement contracts.
Key Personnel (APR 1984)
The personnel specified in this contract are considered to be
essential to the work being performed hereunder. Prior to diverting any
of the specified individuals to other programs, the Contractor shall
notify the Contracting Officer reasonably in advance and shall submit
justification (including proposed substitutions) in sufficient detail to
permit evaluation of the impact on the program. No diversion shall be
made by the Contractor without the written consent of the Contracting
Officer; provided, that the Contracting Officer may ratify in writing
such diversion and such ratification shall constitute the consent of the
Contracting Officer required by this clause. The contract may be
modified from time to time during the course of the contract to either
add or delete personnel, as appropriate.
(End of clause)
Sec. 352.270-6 Publications and publicity.
Insert the following clause in all solicitations and resultant
contracts.
[[Page 81]]
Publications and Publicity (JUL 1991)
(a) Unless otherwise specified in this contract, the Contractor is
encouraged to publish the results of its work under this contract. A
copy of each article submitted by the Contractor for publication shall
be promptly sent to the Project Officer. The Contractor shall also
inform the Project Officer when the article or other publication is
published, and furnish a copy of it as finally published.
(b) The Contractor shall include in any publication resulting from
work performed under this contract a disclaimer reading as follows:
The content of this publication does not necessarily reflect the
views or policies of the Department of Health and Human Services, nor
does mention of trade names, commercial products, or organizations imply
endorsement by the U.S. Government.''
(End of clause)
Sec. 352.270-7 Paperwork Reduction Act.
Insert the following clause in all solicitations and contracts.
Paperwork Reduction Act (JAN 2001)
(a) In the event that it subsequently becomes a contractual
requirement to collect or record information calling either for answers
to identical questions from 10 or more persons other than Federal
employees, or information from Federal employees which is outside the
scope of their employment, for use by the Federal government or
disclosure to third parties, the Paperwork Reduction Act of 1995 (Pub.
L. 104-13) 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 first obtaining
clearance from the Office of Management and Budget (OMB). Contractors
and Project Officers should 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 obtain the required OMB clearance through
the Project Officer before expending any funds or making public
contracts for the collection of data. The authority to expend funds and
proceed with the collection of information shall be in writing by the
Contracting Officer. The Contractor must plan at least 120 days for OMB
clearance. Excessive delays caused by the Government which arises out of
causes beyond the control and without the fault or negligence of the
Contractor will be considered in accordance with the Excusable Delays or
Default clause of this contract
(End of clause)
Sec. 352.270-8 Protection of human subjects.
(a) The following provision shall be included in solicitations
expected to involve human subjects:
Notice to Offerors of Requirements of 45 CFR Part 46, Protection of
Human Subjects (JAN 2001)
(a) Copies of the Department of Health and Human Services
(Department) regulations for the protection of human subjects, 45 CFR
Part 46, are available from the Office for Protection from Research
Risks (OPRR), National Institutes of Health, 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
the Department.
(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 National Institutes of Health
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, prior
consultation with OPRR, (telephone: 301-496-7014), is recommended.
(e) In accordance with 45 CFR Part 46, prospective Contractors being
considered for award shall be required to file with OPRR an acceptable
Assurance of Compliance with the regulations, specifying review
procedures
[[Page 82]]
and assigning responsibilities for the protection of human subjects. The
initial and continuing review of a research project by an institutional
review board shall assure that the rights and welfare of the human
subjects involved are adequately protected, that the risks to the
subjects are reasonable in relation to the potential benefits, if any,
to the subjects and the importance of the knowledge to be gained, and
that informed consent will be obtained by methods that are adequate and
appropriate. Prospective Contractors proposing research that involves
human subjects shall be contacted by OPRR and given detailed
instructions for establishing an institutional review board and filing
an Assurance of Compliance.
(f) It is recommended that OPRR be consulted for advice or guidance
concerning either regulatory requirements or ethical issues pertaining
to research involving human subjects.
(End of provision)
(b) The following clause shall be included in solicitations and
resultant contracts involving human subjects:
Protection of Human Subjects (JAN 2001)
(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 Protection from
Research Risks (OPRR), National Institutes of Health (NIH). 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 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 work under this contract. Nothing in
this contract shall be deemed 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 judgement 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 the OPRR, NIH, 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. 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 OPRR, NIH, terminate this contract in a whole or in
part, and the Contractor's name may be removed form the list of those
contractors with approved Health and Human Services Human Subject
Assurances.
(End of clause)
Sec. 352.270-9 Care of laboratory animals.
(a) The following provision shall be included in solicitations
expected to involve vertebrate animals:
Notice to Offerors of Requirement for Adequate Assurance of Protection
of Vertebrate Animal Subjects (SEP 1985)
The PHS Policy on Humane Care and Use of Laboratory Animals by
Awardee Institutions 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 for
Protection from Research Risks (OPRR), National Institutes of Health
(NIH), a written Animal Welfare Assurance which commits the organization
to comply with the provisions of the PHS Policy on Humane Care and Use
of Laboratory Animals by Awardee Institutions, the Animal Welfare Act,
and the Guide for the Care and Use of Laboratory Animals prepared by the
Institute of Laboratory Animal Resources. In accordance with the PHS
Policy on Humane Care and Use of Laboratory Animals by Awardee
Institutions, applicant organizations must establish a committee,
qualified through the experience and expertise of its members, to
oversee the institution's animal program, facilities and procedures. No
award involving the use of animals shall be made unless the Animal
Welfare Assurance has been approved by OPRR. Prior to award, the
Contracting Officer will notify Contractor(s) selected for projects that
involve live vertebrate animals that an Animal Welfare Assurance is
required. The Contracting Officer will request that OPRR negotiate an
acceptable Animal Welfare Assurance with
[[Page 83]]
those Contractor(s). For further information, OPRR may be contacted at
NIH, Bethesda, Maryland 20892 (301-496-7041).
(End of provision)
(b) The following clause shall be included in all solicitations and
resultant contracts involving research on vertebrate animals:
Care of Live Vertebrate Animals (JAN 2001)
(a) Before undertaking performance of any contract involving animal
related activities, 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 and use of any live
vertebrate animals used or intended for use in the performance of this
contract will conform with the PHS Policy on Humane Care of Use of
Laboratory Animals, the current Animal Welfare Assurance, the Guide for
the Care and Use of Laboratory Animals prepared by the Institute of
Laboratory Animal Resources 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 be used.
(d) If at any time during performance of this contract, the
Contracting Officer determines, in consultation with the Office for
Protection from Research Risks (OPRR), National Institutes of Health
(NIH), that the Contractor is not in compliance with any of the
requirements and/or 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 OPRR, 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 PHS Animal Welfare Assurances.
Note: 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.
(End of Clause)
PART 353_FORMS
Subpart 353.3_Illustrations of Forms
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4262, Jan. 17, 2001, unless otherwise noted.
Sec. 353.370-674 Form HHS 674, Structured Approach Profit/Fee
Objective.
This form is available from local cost advisory personnel. For
copies of the form, contact the Program Support Center at (301) 443-
6740.
[[Page 84]]
SUBCHAPTER T_HHS SUPPLEMENTATIONS
PART 370_SPECIAL PROGRAMS AFFECTING ACQUISITION
Subpart 370.1_Accessibility of Meetings, Conferences, and Seminars to
Persons With Disabilities
Sec.
Sec. 370.101 Policy.
Sec. 370.102 Responsibilities.
Subpart 370.2_Indian Preference in Employment, Training, and
Subcontracting Opportunities
Sec. 370.201 Statutory requirements.
Sec. 370.202 Applicability.
Sec. 370.203 Definitions.
Sec. 370.204 Compliance enforcement.
Sec. 370.205 Tribal preference requirements.
Subpart 370.3_Acquisitions Involving Human Subjects
Sec. 370.300 Scope of subpart.
Sec. 370.301 Policy.
Sec. 370.302 Types of assurances.
Sec. 370.303 Notice to offerors.
Sec. 370.304 Contract clause.
Subpart 370.4_Acquisitions Involving the Use of Laboratory Animals
Sec. 370.400 Scope of subpart.
Sec. 370.401 Policy.
Sec. 370.402 Assurances.
Sec. 370.403 Notice to offerors.
Sec. 370.404 Contract clause.
Subpart 370.5_Acquisitions Under the Buy Indian Act
Sec. 370.500 Scope of subpart.
Sec. 370.501 Policy.
Sec. 370.502 Definitions.
Sec. 370.503 Requirements.
Sec. 370.504 Competition.
Sec. 370.505 Responsibility determinations.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 66 FR 4262, Jan. 17, 2001, unless otherwise noted.
Subpart 370.1_Accessibility of Meetings, Conferences, and Seminars to
Persons With Disabilities
Sec. 370.101 Policy.
(a) It is the policy of HHS 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 statement of work 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.
Sec. 370.102 Responsibilities.
(a) The contracting officer shall include the clause in 352.270-1 in
every solicitation and resulting contract when the statement of work
requires the contractor to conduct meetings, conferences, or seminars in
accordance with 370.101(b).
(b) The project officer shall be responsible for obtaining,
reviewing, and approving 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 will be acceptable. The project officer, prior
to approving the plan, should consult with the Office of Engineering
Services serving the region where the meeting, conference, or seminar is
to be held, to assure that the contractor's plan meets the accessibility
requirements of the
[[Page 85]]
contract clause. The Office of Engineering Services should determine the
adequacy of the contractor's plan, and notify the project officer, in
writing, within ten (10) working days of receiving the request from the
project officer.
Subpart 370.2_Indian Preference in Employment, Training, and
Subcontracting Opportunities
Sec. 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 contracts or grants shall be
given to Indians; and
(b) 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).''
Sec. 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 have been developed to
implement section 7 (b) of Public Law 93-638 for all activities of the
Department. The clauses shall be used by any affected departmental
contracting activity as follows, except 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 Indian Preference clause (352.270-2) shall be included in
each solicitation and resultant contract, regardless of dollar amount:
(1) When the contract is to be awarded pursuant to an act
specifically authorizing contracts with Indian organizations; or
(2) Where the work to be performed under the contract 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 Indian Preference Program clause (352.270-3) shall be
included in each solicitation and resultant contract 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 to be included in the
solicitation and resultant contract; and
(3) The determination is made, prior to solicitation, that the work
to be performed under the resultant contract will take place in whole or
in substantial part on or near an Indian reservation(s). In addition,
the Indian Preference Program clause may be included in any solicitation
and resultant contract 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 activity, offer substantial
opportunities for Indian employment, training, and subcontracting.
Sec. 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 thirty (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
[[Page 86]]
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.
Sec. 370.204 Compliance enforcement.
(a) The concerned contracting activity shall be responsible for
conducting periodic reviews to insure contractor compliance with the
requirements of the clauses set forth in 352.270-2 and 352.270-3. These
reviews may be conducted with the assistance of the Indian Tribe(s)
concerned.
(b) Complaints of noncomplaince with the requirements of the clauses
set forth in 352.270-2 and 352.270-3 which are filed in writing with the
contracting activity shall be promptly investigated and resolved by the
contracting officer.
Sec. 370.205 Tribal preference requirements.
(a) Where the work under a contract is to be performed on an Indian
reservation, the contracting activity may supplement the clause set
forth in 352.270-3 by adding specific Indian preference requirements of
the Tribe on whose reservation the work is to be performed. The
supplemental requirements shall be jointly developed for the contract by
the contracting activity and the Tribe. Supplemental preference
requirements must represent a further implementation of the requirements
of section 7(b) of Public Law 93-638 and must be approved by the
affected program director and approved for legal sufficiency by the
Business and Administrative Law Division, OGC, or a regional attorney
before being added to a solicitation and resultant contract. Any
supplemental preference requirements to be added to the clause in
352.270-3 shall be included in the solicitation and clearly identified
in order to insure uniform understanding of the additional requirements
by all prospective bidders or offerors.
(b) Nothing in this part shall be interpreted to preclude Tribes
from independently developing and enforcing their own tribal preference
requirements. Such independently developed tribal preference
requirements shall not, except as provided in paragraph (a) of this
section, become a requirement in contracts covered under this subpart
370.2, and must not conflict with any Federal statutory or regulatory
requirement concerning the award and administration of contracts.
Subpart 370.3_Acquisitions Involving Human Subjects
Sec. 370.300 Scope of subpart.
This subpart applies to all research and development activities
involving human subjects conducted under contract (see 45 CFR 46.102(d)
and (f)).
Sec. 370.301 Policy.
It is the policy of the Department of Health and Human Services
(DHHS) that no contract involving human subjects shall be awarded until
acceptable assurance has been given that the activity will be subject to
initial and continuing review by an appropriate Institutional Review
Board (IRB) as described in DHHS regulations at 45 CFR 46.103. An
applicable Multiple Project Assurance (MPA) or Single Project Assurance
(SPA), approved by the Office for Protection from Research Risks (OPRR),
National Institutes of Health (NIH), shall be required of each
contractor, subcontractor, or cooperating institution having
responsibility for human subjects involved in performance of the
contract. The OPRR, NIH,
[[Page 87]]
is responsible for negotiating assurances covering all DHHS-supported or
DHHS-conducted activities involving human subjects. Contracting officers
shall be guided by OPRR regarding nonaward or termination of a contract
due to inadequate assurance or breach of assurance for protection of
human subjects.
Sec. 370.302 Types of assurances.
Assurances may be one of two types:
(a) Multiple Project Assurance (MPA). An MPA describes the oversight
procedures applicable to all DHHS-supported human subjects activities
within an institution having a significant number of concurrent
projects. An MPA listed in OPRR's current ``List of Institutions Which
Have an Approved MPA'' will be considered acceptable for purposes of
this policy.
(b) Single Project Assurance (SPA). An SPA describes the oversight
procedures applicable to a single DHHS-supported human subjects
activity. SPAs may be approved in modified form to meet unusual
requirements. SPAs are not solicited from institutions with OPRR
approved MPAs. Copies of proposals selected for negotiation and
requiring one or more SPAs shall be forwarded to the Human Subjects
Assurance Branch, OPRR, NIH MSC 7507, 6100 Executive Blvd., Room 3B01,
Rockville, Maryland 20892, as early as possible so that timely action
may be taken to secure the SPA(s).
Sec. 370.303 Notice to offerors.
(a) Solicitations shall contain the notice to offerors in 352.270-
8(a) whenever contract performance is expected to involve human
subjects.
(b) IRB approval of proposals submitted by institutions having an
OPRR-approved MPA should be certified in the manner required by
instructions for completion of the contract proposal; or by completion
of a DHHS Form 310, Protection of Human Subjects Assurance
Identification/Certification/Declaration; or by letter indicating the
institution's OPRR-assigned MPA 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) SPAs for contractors, subcontractors, or cooperating
institutions generally will not be requested prior to determination that
a contract proposal has been selected for negotiation. When an SPA is
submitted, 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 noncompetitive renewal
proposal shall be certified in the manner described in the preceding
paragraph.
Sec. 370.304 Contract clause.
The clause set forth in 352.270-8(b) shall be inserted in all
solicitations and resultant contracts involving human subjects.
Subpart 370.4_Acquisitions Involving the Use of Laboratory Animals
Sec. 370.400 Scope of subpart.
This subpart applies to all research, 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).
Sec. 370.401 Policy.
(a) It is the policy of the Department of Health and Human Services
(DHHS) and the Public Health Service agencies that no contract involving
live vertebrate animals shall be awarded until acceptable assurance has
been given that the activity 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. An applicable
Full Animal Welfare Assurance or Interinstitutional Agreement/Assurance,
approved by the Office for Protection from Research Risks (OPRR),
National Institutes of Health (NIH), shall be required of each
contractor, subcontractor, or cooperating institution having
responsibility
[[Page 88]]
for animal care and use involved in performance of the contract (see PHS
Policy II., IV. A., and V. B.).
(b) The OPRR, NIH, is responsible for negotiating assurances
covering all DHHS/PHS-supported or DHHS/PHS-conducted activities
involving the care and use of live vertebrate animals. Contracting
officers shall be guided by OPRR regarding adequate animal care, and
use, approval, disapproval, restriction, or withdrawal of approval of
assurances (see PHS Policy V. A.).
Sec. 370.402 Assurances.
(a) Assurances may be one of two 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 OPRR's list of institutions which have
an approved full AWA will be considered acceptable for purposes of this
policy.
(2) Interinstitutional 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) Copies of proposals selected for negotiation and requiring an
assurance shall be forwarded to the Assurance Branch, Division of Animal
Welfare, OPRR, NIH MSC 7507, 6100 Executive Blvd., Room 3B01, Rockville,
Maryland 20892, as early as possible in order that timely action may be
taken 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 because the GOCO site normally covers
the contractor services in the GOCO site assurance.
Sec. 370.403 Notice to offerors.
Solicitations shall contain the notice to offerors in 352.270-9(a)
whenever contract performance is expected to involve the use of live
vertebrate animals.
(a) For offerors having a full AWA on file with OPRR, IACUC approval
of the use of animals shall be submitted 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 review and approval
must not be more than 36 months prior to the deadline for proposal
submission.]
(b) Non-assured offerors are not required to submit assurances or
IACUC approval with proposals. OPRR will contact contractors,
subcontractors and cooperating institutions to negotiate necessary
assurances and verify IACUC approvals when requested by appropriate
DHHS/PHS staff.
Sec. 370.404 Contract clause.
The clause set forth in 352.270-9(b) shall be included in all
solicitations and resultant contracts involving the care and use of live
vertebrate animals.
Subpart 370.5_Acquisitions Under the Buy Indian Act
Sec. 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.
Applicability of this subpart is limited to acquisitions made by or on
behalf of the Indian Health Service of the Public Health Service.
Sec. 370.501 Policy.
(a) The Indian Health Service will 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 set out in 25 U.S.C. 47, the Buy Indian Act provides as
follows:
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) The functions, responsibilities, authorities, and duties of the
Secretary
[[Page 89]]
of the Interior for maintenance and operation of hospital and health
facilities for Indians and for the conservation of the health of Indians
are transferred to the Surgeon General of the United States under the
supervision of the Secretary of Health and Human Services, 42 U.S.C.
2001 (a). Accordingly, the Secretary of Health and Human Services 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
the Indian Health Service and is not available for use by any other HHS
component (unless that component is making an acquisition on behalf of
the Indian Health Service).
(c) Use of the Buy Indian Act negotiation authority has been
emphasized in subsequent legislation, particularly Public Law 94-437 and
Public Law 96-537.
Sec. 370.502 Definitions.
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 the Indian Health Service.
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 Health and Human
Services. The Secretary of Health and Human Services in making
determinations may take into account the determination of the tribe with
which affiliation is claimed.
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)).
Product of Indian industry means anything produced by Indians
through physical labor or by intellectual effort involving the use and
application of skills by them.
Sec. 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 joint venture must be approved by the
contracting officer 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, performance
and payment bonds are required by the Miller Act (40 U.S.C. 270a-270f)
and FAR part 28. In the case of contracts with Indian tribes or public
nonprofit organizations serving as governmental instrumentalities of an
Indian tribe, bonds are not required. However, bonds are required when
dealing with private business entities which are owned by an Indian
tribe or members of an Indian tribe. Bonds may be required of private
business entities which 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
Indian Preference clause set forth in 352.270-2 shall be included in all
Buy Indian solicitations and resultant contracts. The Indian Preference
Program clause set forth in 352.270-3 shall be used as specified in
370.202(b). All requirements
[[Page 90]]
set forth in subpart 370.2 which are applicable to the instant Buy
Indian acquisition shall be followed by the contracting officer, e.g.,
sections 370.204 and 370.205.
(e) Subcontracting. Not more than 50 percent of the work to be
performed under a prime contract awarded pursuant to the Buy Indian Act
shall be subcontracted to other than Indian firms. For this purpose,
work to be performed does not include the provision of materials,
supplies, or equipment.
(f) Wage rates. A determination of the minimum wage rates by the
Secretary of Labor as required by the Davis-Bacon Act (40 U.S.C. 276a)
shall be included 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 wage rate
determination is to be included 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.
Sec. 370.504 Competition.
(a) Contracts to be awarded under the Buy Indian Act shall be
subject to competition among Indians or Indian concerns to the maximum
extent that competition is determined by the contracting officer to be
practicable. When competition is determined not to be practicable, a
Justification for Other than Full and Open Competition shall be prepared
in accordance with 306.303 and subsequently retained in the contract
file.
(b) Solicitations must be synopsized and publicized in the Commerce
Business Daily and copies of the synopses sent to the tribal office of
the Indian tribal government directly concerned with the proposed
acquisition as well as to Indian concerns and others having a legitimate
interest. The synopsis should state that the acquisition is restricted
to Indian firms under the Buy Indian Act.
Sec. 370.505 Responsibility determinations.
(a) A contract may be awarded under the Buy Indian Act only if it is
first determined that the project or function to be contracted for is
likely to be satisfactorily performed under that contract and the
project or function is likely to be properly completed or maintained
under that contract.
(b) The determination called for by paragraph (a) of this section,
to be made prior to the award of a contract, will be made in writing by
the contracting officer reflecting an analysis of the standards set
forth in FAR 9.104-1.
[[Page 91]]
CHAPTER 4--DEPARTMENT OF AGRICULTURE
(Parts 400 to 499)
--------------------------------------------------------------------
SUBCHAPTER A--GENERAL
Part Page
401 Agriculture Acquisition Regulation System... 93
402 Definitions of words and terms.............. 97
403 Improper business practices and personal
conflicts of interest................... 98
404 Administrative matters...................... 100
SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
405 Publicizing contract actions................ 102
406 Competition requirements.................... 102
407 Acquisition planning........................ 103
408 Required sources of supplies and services... 104
409 Contractor qualifications................... 106
410
[Reserved]
411 Describing agency needs..................... 108
412 Acquisition of commercial items............. 109
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
413 Simplified acquisition procedures........... 110
414 Sealed bidding.............................. 110
415 Contracting by negotiation.................. 111
416 Types of contracts.......................... 113
417 Special contracting methods................. 114
418
[Reserved]
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
419 Small business programs..................... 115
420-421
[Reserved]
422 Application of labor laws to Government
acquisitions............................ 116
423 Environment, conservation, occupational
safety, and drug-free workplace......... 118
424 Protection of privacy and freedom of
information............................. 121
425 Foreign acquisition......................... 121
[[Page 92]]
426 Other socioeconomic programs................ 123
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
427 Patents, data, and copyrights............... 125
428 Bonds and insurance......................... 125
429
[Reserved]
430 Cost Accounting Standards Administration.... 126
431 Contract cost principles and procedures..... 127
432 Contract financing.......................... 127
433 Protests, disputes and appeals.............. 131
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
434 Major system acquisition.................... 133
435 Research and development contracting........ 134
436 Construction and architect-engineer
contracts............................... 134
437 Service contracting......................... 137
438-440
[Reserved]
441 Acquisition of utility services............. 138
SUBCHAPTER G--CONTRACT MANAGEMENT
442 Contract administration..................... 139
443-444
[Reserved]
445 Government property......................... 139
446 Quality assurance........................... 140
447 Transportation.............................. 140
448
[Reserved]
449 Termination of contracts.................... 141
450 Extraordinary contractual actions........... 141
451
[Reserved]
SUBCHAPTER H--CLAUSES AND FORMS
452 Solicitation provisions and contract clauses 143
453 Forms....................................... 154
[[Page 93]]
SUBCHAPTER A_GENERAL
PART 401_AGRICULTURE ACQUISITION REGULATION SYSTEM
Sec.
Sec. 401.000 Scope of part.
Subpart 401.1_Purpose, Authority, Issuance
Sec. 401.101 Purpose.
Sec. 401.103 Authority.
Sec. 401.104 Applicability.
Sec. 401.105 Issuance.
Sec. 401.105-1 Publication and code arrangement.
Sec. 401.105-2 Arrangement of regulations.
Sec. 401.105-3 Copies.
Sec. 401.106 OMB approval under the Paperwork Reduction Act.
Sec. 401.170 Electronic access to regulatory information.
Subpart 401.2_Administration
Sec. 401.201 Maintenance of the FAR.
Sec. 401.201-1 The two councils.
Subpart 401.3_Agency Acquisition Regulations
Sec. 401.301 Policy.
Sec. 401.304 Agency control and compliance procedures.
Sec. 401.370 Exclusions.
Sec. 401.371 AGAR Advisories.
Sec. 401.372 Departmental directives.
Subpart 401.4_Deviations From the FAR and AGAR
Sec. 401.402 Policy.
Sec. 401.403 Individual deviations.
Sec. 401.404 Class deviations.
Subpart 401.6_Contracting Authority and Responsibilities
Sec. 401.601 General.
Sec. 401.602 Contracting officers.
Sec. 401.602-3 Ratification of unauthorized commitments.
Sec. 401.603 Selection, appointment, and termination of appointment.
Sec. 401.603-1 General.
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Source: 61 FR 53646, Oct. 15, 1996, unless otherwise noted.
Sec. 401.000 Scope of part.
This part presents basic policies and general information about the
Department of Agriculture's (USDA) Acquisition Regulation, subsequently
referred to as the AGAR. The AGAR is an integral part of the Federal
Acquisition Regulations System.
Subpart 401.1_Purpose, Authority, Issuance
Sec. 401.101 Purpose.
(a) The AGAR provides for the codification and publication of
uniform policies and procedures for acquisitions by contracting
activities within USDA.
(b) The purpose of the AGAR is to implement the Federal Acquisition
Regulation (FAR), where further implementation is needed, and to
supplement the FAR when coverage is needed for subject matter not
covered in the FAR. The AGAR is not by itself a complete document, as it
must be used in conjunction with the FAR.
Sec. 401.103 Authority.
The AGAR and amendments thereto are issued under 5 U.S.C. 301 and 40
U.S.C. 486(c). The Senior Procurement Executive (SPE) has the delegated
authority to promulgate Departmental acquisition regulations.
Sec. 401.104 Applicability.
The FAR and AGAR apply to all USDA acquisitions of supplies and
services (including construction) which obligate appropriated funds,
unless otherwise specified in this chapter or excepted by law.
Sec. 401.105 Issuance.
Sec. 401.105-1 Publication and code arrangement.
(a) The AGAR is codified in the Code of Federal Regulations (CFR) as
Chapter 4 of Title 48, Federal Acquisition Regulations System, to
implement and supplement Chapter 1 which constitutes the FAR. Parts 400
through 499 have been assigned to USDA by the Office of the Federal
Register.
(b) The AGAR and its subsequent changes are published in:
[[Page 94]]
(1) Daily issues of the Federal Register,
(2) Cumulative form in the CFR, and
(3) Loose-leaf form for distribution within USDA.
(c) Section 553(a)(2) of the Administrative Procedure Act, 5 U.S.C.
553, provides an exception from the standard public rulemaking
procedures to the extent that the rule involves a matter relating to
agency management or personnel or to public property, loans, grants,
benefits, or contracts. OFPP Policy Letter 83-2 requires rulemaking for
substantive acquisition rules but allows discretion in the matter for
other than significant issues meeting the stated criteria. The AGAR has
been promulgated and may be revised from time to time in accordance with
the rulemaking procedures of the Administrative Procedure Act and OFPP
Policy Letter 83-2.
Sec. 401.105-2 Arrangement of regulations.
AGAR coverage parallels the FAR in format, arrangement, and
numbering system. However, subdivisions below the section and subsection
levels may not always correlate directly to FAR designated paragraphs
and subparagraphs.
Sec. 401.105-3 Copies.
Copies of the AGAR published in CFR form may be purchased from the
Superintendent of Documents, Government Printing Office, Washington,
D.C. 20402. Requests should reference Chapter 4 of Title 48 CFR.
Sec. 401.106 OMB approval under the Paperwork Reduction Act.
The following OMB control numbers apply to USDA solicitations and
specified information collections within the AGAR:
------------------------------------------------------------------------
OMB Control
AGAR segment No.
------------------------------------------------------------------------
411.170.................................................... 0505-0014
415.2...................................................... 0505-0013
436.575.................................................... 0505-0011
437.110.................................................... 0505-0015
437.270.................................................... 0505-0016
452.211-1.................................................. 0505-0014
452.215-71................................................. 0505-0013
452.236-75................................................. 0505-0011
452.237-74................................................. 0505-0015
452.237-76................................................. 0505-0016
------------------------------------------------------------------------
[61 FR 53646, Oct. 15, 1996, as amended at 64 FR 52674, Sept. 30, 1999]
Sec. 401.170 Electronic access to regulatory information.
The USDA Departmental Administration Procurement Homepage provides
access to the AGAR, AGAR amendments (circulars), AGAR Advisories, and
other USDA procurement policy and guidance in electronic form. The
Internet address for the Procurement Homepage is URL http://
www.usda.gov/da/procure.html.
[63 FR 26994, May 15, 1998]
Subpart 401.2_Administration
Sec. 401.201 Maintenance of the FAR.
Sec. 401.201-1 The two councils.
(a) USDA's representative on the Civilian Agency Acquisition Council
is designated by the SPE.
(b) The Procurement Policy Division will coordinate proposed FAR
revisions with interested contracting activities.
Subpart 401.3_Agency Acquisition Regulations
Sec. 401.301 Policy.
(a) The SPE, subject to the authorities in 401.103 and FAR 1.301,
may issue and publish Departmental regulations, that together with the
FAR, constitute Department-wide policies, procedures, solicitation
provisions, and contract clauses governing the contracting process or
otherwise controlling the relationship between USDA (including any of
its contracting activities) and contractors or prospective contractors.
(b) Each designated head of a contracting activity (HCA) is
authorized to issue or authorize the issuance of, at any organizational
level, internal guidance which does not have a significant effect beyond
the internal operating procedures of the activity, or a significant cost
or administrative impact on offerors or contractors. Internal guidance
issued by contracting activities will not be published in the Federal
Register. HCA's shall ensure that the guidance, procedures, or
instructions issued--
[[Page 95]]
(1) Are consistent with the policies and procedures contained in
this chapter;
(2) Follow the format, arrangement, and numbering system of this
chapter to the extent practicable;
(3) Contain no material which duplicates, paraphrases, or is
inconsistent with this chapter; and
(4) Are numbered and identified by use of alphabetical suffixes to
the chapter number as follows:
4A [Reserved]
4B Agricultural Research Service.
4C Farm Service Agency.
4D Rural Development (mission area).
4E Food Safety and Inspection Service.
4F [Reserved]
4G Forest Service.
4H [Reserved]
4I Natural Resources Conservation Service.
4J [Reserved]
4K Food and Consumer Service.
4L Animal and Plant Health Inspection Service.
4M [Reserved]
4N Office of Operations.
4O-4P [Reserved]
4R Office of Inspector General.
4S [Reserved]
Sec. 401.304 Agency control and compliance procedures.
(a) The AGAR System is under the direct oversight and control of the
SPE, who is responsible for review and issuance of all Department-wide
acquisition regulations published in the Federal Register to assure
compliance with FAR part 1.
(b) The SPE is also responsible for review and issuance of
unpublished, Department-wide internal guidance under the AGAR System.
(c) HCA's are responsible for establishment and implementation of
formal procedures for oversight and control of unpublished internal
guidance issued within the contracting activity to implement FAR or AGAR
requirements. These procedures shall be subject to the review and
approval by the SPE.
(d) The SPE is responsible for evaluating coverage under the AGAR
System to determine applicability to other agencies and for recommending
coverage to the FAR Secretariat for inclusion in the FAR.
(e) Recommendations for revision of existing FAR coverage or new FAR
coverage shall be submitted by the HCA to the SPE for further action.