[Title 48 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2009 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
48
Chapters 3 to 6
Revised as of October 1, 2009
Federal Acquisition Regulations System
________________________
Containing a codification of documents of general
applicability and future effect
As of October 1, 2009
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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Table of Contents
Page
Explanation................................................. v
Title 48:
Chapter 3--Health and Human Services 3
Chapter 4--Department of Agriculture 99
Chapter 5--General Services Administration 169
Chapter 6--Department of State 315
Finding Aids:
Table of CFR Titles and Chapters........................ 403
Alphabetical List of Agencies Appearing in the CFR...... 423
List of CFR Sections Affected........................... 433
[[Page iv]]
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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.
----------------------------
[[Page v]]
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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HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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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.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
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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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
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This material, like any other properly issued regulation, has the force
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What is a proper incorporation by reference? The Director of the
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
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What if the material incorporated by reference cannot be found? If
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CFR INDEXES AND TABULAR GUIDES
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the revision dates of the 50 CFR titles.
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REPUBLICATION OF MATERIAL
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Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2009.
[[Page ix]]
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, 2009.
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.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[Page 1]]
TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
(This book contains chapters 3 to 6)
--------------------------------------------------------------------
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
[[Page 3]]
CHAPTER 3--HEALTH AND HUMAN SERVICES
--------------------------------------------------------------------
Editorial Note: Nomenclature changes to chapter 3 appear at 70 FR 39,
Jan. 3, 2005.
SUBCHAPTER A--GENERAL
Part Page
301 HHS Acquisition Regulation System........... 5
302 Definitions of words and terms.............. 11
303 Improper business practices and personal
conflicts of interest................... 12
304 Administrative matters...................... 14
SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
305 Publicizing contract actions................ 17
306 Competition requirements.................... 17
307 Acquisition planning........................ 19
309 Contractor qualifications................... 30
311 Describing agency needs..................... 32
312 Acquisition of commercial items............. 32
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
313 Simplified acquisition procedures........... 34
314 Sealed bidding.............................. 34
315 Contracting by negotiation.................. 35
316 Types of contracts.......................... 51
317 Special contracting methods................. 52
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
319 Small business programs..................... 54
323 Environment, energy and water efficiency,
renewable energy technologies,
occupational safety, and drug-free
workplace............................... 55
324 Protection of privacy and freedom of
information............................. 55
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
328 Bonds and insurance......................... 59
330 Cost accounting standards................... 59
332 Contract financing.......................... 59
[[Page 4]]
333 Protests, disputes, and appeals............. 61
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
335 Research and development contracting........ 66
339 Acquisition of information technology....... 67
SUBCHAPTER G--CONTRACT MANAGEMENT
342 Contract administration..................... 69
SUBCHAPTER H--CLAUSES AND FORMS
352 Solicitation provisions and contract clauses 74
353 Forms....................................... 91
SUBCHAPTER T--HHS SUPPLEMENTATIONS
370 Special programs affecting acquisition...... 92
[[Page 5]]
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 of
Contracting Officers/Contract Specialists.
Sec. 301.603-1 General.
Sec. 301.603-2 Selection of Contracting Officers.
Sec. 301.603-3 Appointment of Contracting Officers.
Sec. 301.603-4 Termination or revocation of a Contracting Officer's
appointment.
Sec. 301.603-70 Delegation of Contracting Officer responsibilities.
Sec. 301.603-71 Waivers to warrant standards.
Sec. 301.603-72 Training and certification requirements for Contracting
Officers/Contract Specialists.
Sec. 301.603-73 Earned value training requirement for Contracting
Officers/Contract Specialists who administer an IT contract.
Sec. 301.603-74 Training policy exception.
Sec. 301.603-75 Training requirement for purchase cardholders, Approving
Officials (AOs), and Agency/Organization Program Coordinators
(A/OPCs).
Sec. 301.603-76 Requirement for certification retention and maintaining
currency of acquisition knowledge and skills for Contracting
Officers/Contract Specialists and purchasing agents.
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 FAR policies and procedures and provides
additional policies and procedures that supplement the FAR to satisfy
the needs of HHS.
(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.
[66 FR 4220, Jan. 17, 2001, as amended at 71 FR 76488, Dec. 20, 2006]
Sec. 301.103 Authority.
(b) The HHSAR is prescribed by the Assistant Secretary for
Administration and Management 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
[[Page 6]]
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., 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 Acquisition Management and
Policy 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 Division of
Acquisition Policy (DAP), Agency for Healthcare Research and Quality,
Centers for Medicare & Medicaid Services, 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, Division of Acquisition Policy (DAP). 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 purposes of the ECA are to:
(1) Advise and assist the Chair on major acquisition policy matters;
(2) Review and evaluate the overall effectiveness of existing
policies and procedures and the impact of new acquisition policies,
procedures, and regulations on current acquisition policies and
procedures.
(d) The Chair will periodically issue a list of current members and
alternates, including each person's name, title, organization, address,
telephone number, and e-mail address. ECA members are responsible for
apprising the Chair of any changes to the list.
[71 FR 76488, Dec. 20, 2006]
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 to the Deputy
Assistant Secretary for Acquisition Management and Policy (DASAMP).
[71 FR 76489, Dec. 20, 2006]
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 to the Deputy
Assistant Secretary for Acquisition Management and Policy (DASAMP).
[71 FR 76489, Dec. 20, 2006]
Sec. 301.470 Procedure.
(a) Deviation requests shall be prepared in memorandum form and
forwarded through the Head of the Contracting Activity (HCA) to the
Director, Division of Acquisition Policy. A deviation may be requested
verbally in an exigency situation; however, the request must be
confirmed 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;
[[Page 7]]
(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).
[66 FR 4220, Jan. 17, 2001, as amended at 71 FR 76489, Dec. 20, 2006]
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 $100,000 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, a description of the requirement,
the estimated or agreed upon price, the funds citation, an explanation
of why the contracting office was not used and why the proposed
contractor was selected, a list of other sources considered, and a
statement as to whether the contractor has commenced work.
(2) The Contracting Officer will review the submitted material and
prepare it for ratification if it is determined that the commitment is
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.
[66 FR 4220, Jan. 17, 2001, as amended at 71 FR 76489, Dec. 20, 2006]
Sec. 301.603 Selection, appointment, and termination of appointment of
Contracting Officers/Contract Specialists.
Sec. 301.603-1 General.
(a) The appointment, selection, and termination of appointment of
Contracting Officers/Contract Specialists shall be made by the HCA. This
authority is not delegable. The procedures for the selection and
appointment of Contracting Officers/Contract Specialists shall apply to
anyone seeking a Contracting Officer warrant. OPDIV procedures shall be
followed in the appointment and termination of Contracting Officers/
Contract Specialists in offices that have Contracting Officers/Contract
Specialists with dual signature warrants.
(b) Standard Form (SF) 1402, ``Certificate of Appointment,'' shall
be used to appoint personnel in the 1102 series as Contracting Officers.
It shall also be used for personnel in any other series who will
obligate the Government to the expenditure of funds in excess of the
micro-purchase threshold. The SF 1402 shall indicate the Contracting
Officer's warrant level and threshold and any other limitations. The HCA
may
[[Page 8]]
determine an alternate appointment document for appointments at or below
the micropurchase threshold level. Contracting Officer warrants will be
issued to civil service personnel only. A delegation of procurement
authority shall be set forth in a memorandum that describes the spending
limits and authority. 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 as a
prerequisite to being appointed as a Contracting Officer with authority
to obligate funds in excess of the micro-purchase threshold (see
301.603-72). The HCA will determine and require training for individuals
appointed as Contracting Officers/Contract Specialists at dollar levels
below the micropurchase threshold. Individuals selected for Contracting
Officer warrant authority must meet the education, training, and
experience requirements that are established for the warrant level. An
individual shall be appointed as a Contracting Officer only in instances
where a valid organizational need is demonstrated. Factors to be
considered in assessing the need for an appointment of a Contracting
Officer include volume of actions, complexity of work, and structure of
the organization.
(d) Contracting Officers (GS-1102's) shall not sign contracts or
modifications to contracts which will result in the total amount of the
contract exceeding their delegated warrant authority (as specified on
the SF-1402). This includes Indefinite Delivery Indefinite Quantity
(IDIQ) contracts. However, orders placed against an IDIQ may be issued
by Contracting Officers up to their delegated authority provided that
each order is separate and distinct.
(e) Employees delegated warrant authority are the only individuals
legally authorized to bind the Government by executing contracts or
signing determinations and findings required by the FAR. The amount
specified on the warrant shall cover the estimated maximum contract
amount, including all option periods. For example, an employee with a
$500,000 Contracting Officer Certificate of Appointment may not award a
contract for a base year of $300,000 if the contract includes a one-year
option for an additional $300,000. In this case, the total contract
amount, including options, exceeds the amount stipulated in the warrant.
If a warrant is limited to $500,000 (for example), the holder may not
sign a contract for more than that amount, even if the additional amount
is subject to the availability of funds. Contracting Officers with
higher warrant levels may sign the action when modifications to orders
and contracts make the total amount of the contract exceed the
Contracting Officer's warrant limitation.
[71 FR 76489, Dec. 20, 2006]
Sec. 301.603-2 Selection of Contracting Officers.
When it has been determined that the appointment is in the best
interest of the OPDIV and/or Department and there is a demonstrated need
for the procurement authority requested, nominations for appointment of
Contracting Officers shall be submitted to the HCA through appropriate
organizational channels for review. The HCA is responsible for
appointing Contracting Officers in accordance with FAR 1.603. This
authority is not delegable. The HCA will determine the documentation
required, consistent with FAR 1.603-2, when the resulting appointment
and authority will not exceed the micropurchase threshold.
[71 FR 76490, Dec. 20, 2006]
Sec. 301.603-3 Appointment of Contracting Officers.
(a) Appointing officials must ensure that a warrant candidate meets
the experience and education/training requirements listed in 301.603-72.
(b) If it is essential to appoint an individual who does not fully
meet the certification requirements for the Contracting Officer
authority sought, an interim appointment may be granted by the HCA. HCAs
are responsible for ensuring that training requirements are met within
the specified time frame. Interim appointments may not
[[Page 9]]
exceed one year in total, and shall not be granted unless the individual
can meet the certification requirements within one year from the date of
appointment. The HCA may extend an interim appointment by granting
additional time to complete the requirements of a permanent appointment.
If the certification requirements are not completed by the extended
date, the appointment will automatically terminate.
[71 FR 76490, Dec. 20, 2006]
Sec. 301.603-4 Termination or revocation of a Contracting Officer's
appointment.
Termination or revocation of Contracting Officer appointments shall
be accomplished in accordance with FAR 1.603-4.
[71 FR 76490, Dec. 20, 2006]
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 that 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 preestablished
mechanisms. Ordering officials, including those under the National
Institutes of Health's (NIH) Delegated Acquisition Program (DELPRO), are
not Contracting Officers.
[71 FR 76490, Dec. 20, 2006]
Sec. 301.603-71 Waivers to warrant standards.
There may be an unusual circumstance that requires delegation of a
warrant to an employee who does not meet the warrant standards in of the
HHS Contracting Officer Warrant Program. Any requests for waivers
requesting deviations from the requirements and policies of the HHS
Contracting Officer Warrant Program shall be sent in writing to the SPE
for approval. The SPE will either approve or disapprove in writing the
request for a waiver to the warrant standards. The SPE may grant waivers
on a case-by-case basis in unique situations only.
[71 FR 76490, Dec. 20, 2006]
Sec. 301.603-72 Training and certification requirements for Contracting
Officers/Contract Specialists.
(a) Federal Acquisition Certification in Contracting (FAC-C)
certification is not mandatory for all GS-1102s; however, members of the
workforce issued new Contracting Officer (CO) warrants on or after
January 1, 2007, regardless of GS series, must be certified at an
appropriate level to support their warrant obligations, pursuant to
agency policy. New CO warrants are defined in OFPP Policy Letter 05-01
as warrants issued to employees for the first time at a department or
agency. FAC-C certification does not apply to:
(1) Senior level officials responsible for delegating procurement
authority;
(2) Non-1102s whose warrants are generally used to procure emergency
goods and services; or
(3) Non-1102s whose warrants are so limited as to be outside the
scope of this program, as determined by the Chief Acquisition Officer
(CAO).
(b) HHS requires a senior level FAC-C certification for any employee
issued an unlimited Contracting Officer's warrant on or after January 1,
2007.
(c) Achievement of the FAC-C is based on three requirements:
education, training, and experience, and the requirements are
cumulative, (i.e., a person must meet the requirements of each previous
certification level).
(d) FAC-C training requirements are as follows:
(1) FAC-C Level I:
(i) CON 100 Shaping Smart Business Arrangements.
(ii) CON 110 Mission Support Planning.
(iii) CON 111 Mission Strategy Execution.
(iv) CON 112 Mission Performance Assessment.
(v) CON 120 Mission Focused Contracting.
(vi) 1 Elective.
(2) FAC-C Level II:
(i) CON 202 Intermediate Contracting.
[[Page 10]]
(ii) CON 204 Intermediate Contract Pricing.
(iii) CON 210 Government Contract Law.
(iv) 2 Electives.
(3) FAC-C Level III:
(i) CON 353 Advanced Business Solutions for Mission Support.
(ii) 2 Electives.
(e) Those conducting simplified acquisitions from $2,500 to $100,000
will need to be issued an HHS Simplified Acquisition Certificate.
Required training is as follows:
(1) HHS Simplified Acquisition Certificate A:
(ii) Basic Simplified Acquisition Procedures/DAU's CON 237.
(iii) Advanced Simplified Acquisition Procedures or Appropriations
Law.
(2) HHS Simplified Acquisition Certificate B:
(i) Basic Simplified Acquisition Procedures/DAU's CON 237.
(ii) Advanced Simplified Acquisition Procedures or Appropriations
Law.
(iii) CON 100 (Shaping Smart Business Arrangements).
(iv) CON 110 (Mission Support Planning).
(f) For additional information, see http://www.knownet.hhs.gov/
acquisition/careerhandbookver.1.0.doc.
[71 FR 76490, Dec. 20, 2006]
Sec. 301.603-73 Earned value training requirement for Contracting
Officers/Contract Specialists who administer an IT contract.
All GS-1102s who administer an IT contract, regardless of dollar
threshold, are required to successfully complete the Department's
(offered through HHS University) one-day course entitled ``Early Warning
Project Management Systems Workshop,'' or an equivalent Earned Value
training course. Determination of course equivalency shall be made
jointly by the Office of Acquisition Management and Policy/ASAM and the
HHS Office of the Chief Information Officer.
[71 FR 76490, Dec. 20, 2006]
Sec. 301.603-74 Training policy exception.
In the event there is an urgent requirement for a Contracting
Officer/Contract Specialist to award or administer an IT contract, and
the Earned Value training requirement has not been met, the HCA (not
delegable) may waive the training requirement and authorize the
individual to perform the job duties, provided that the individual
attends the next scheduled ``Early Warning Project Management System
Workshop'' course, or an equivalent Earned Value course.
[71 FR 76490, Dec. 20, 2006]
Sec. 301.603-75 Training requirement for purchase cardholders,
Approving Officials (AOs), and Agency/Organization Program
Coordinators (A/OPCs).
Training requirements for purchase cardholders, AOs, and A/OPCs are
listed in the following table:
------------------------------------------------------------------------
Program
Authority \a\ participant Required training \b\
------------------------------------------------------------------------
Up to $2,500................. Prospective/newly Basic purchase card
appointed course (HHS
purchase University 1-day
cardholders and course) or an
Approving equivalent course
Officials. that has been
approved by the HHS
Acquisition Training
Coordinator prior to
appointment. Training
will include green-
purchasing and
Section 508
requirements.
Purchase card Refresher purchase
holders and card training,
Approving including green-
Officials. purchasing training
and Section 508
training, every 2
years.
$2,501 to $25,000............ Prospective/newly
appointed Basic Purchase Card
purchase course.
cardholders and
Approving Basic Simplified
Officials. Acquisition
Procedures/DAU's CON
237.
Advanced Simplified
Acquisition
Procedures or
Appropriations Law.
Purchase card Refresher purchase
holders and card training,
Approving including green-
Officials. purchasing training
and Section 508
training, every 2
years.
$25,001 to $100,000.......... Prospective/newly
appointed Basic Purchase Card
purchase course.
cardholders and
Approving Basic Simplified
Officials. Acquisition
Procedures/DAU's CON
237.
Advanced Simplified
Acquisition
Procedures or
Appropriations Law.
CON
100 (Shaping Smart
Business
Arrangements).
CON
110 (Mission Support
Planning).
[[Page 11]]
Purchase Refresher purchase
cardholders and card training,
Approving including green-
Officials. purchasing training
and Section 508
training, every 2
years.
Not applicable............... Prospective/newly Basic Purchase Card
appointed Agency/ course, Basic
Organization Simplified
Program Acquisition
Coordinators. Procedures or DAU's
CON 237, Advanced
Simplified
Acquisition
Procedures or
Appropriations Law,
CON 100 (Shaping
Smart Business
Arrangements), and
CON 110 (Mission
Support Planning).
Agency/ Refresher purchase
Organization card training,
Program including green-
Coordinators. purchasing training
and Section 508
training, every 2
years (attendance at
GSA's annual training
conference satisfies
refresher training).
------------------------------------------------------------------------
\a\ Cardholders and Approving Officials with authorized increases in DPA
have up to 6 months to complete the training requirements for the new
DPA.
\b\ CON 237, CON 100, and CON 110 are available at the DAU Web site at
http://www.dau.mil/registrar/enroll.asp. CON 100 is also offered
through HHS University (see Web site at: http://learning.hhs.gov).
[71 FR 76490, Dec. 20, 2006]
Sec. 301.603-76 Requirement for certification retention and maintaining
currency of acquisition knowledge and skills for Contracting
Officers/Contract Specialists and purchasing agents.
To maintain a FAC-C, GS-1102s, including all warranted Contracting
Officers regardless of series, shall earn 80 continuous learning points
(CLPs) every two years beginning January 1, 2008. For GS-1105s and GS-
1106s, a minimum of forty (40) hours (or continuous learning points) is
required every two years after all mandatory training requirements have
been met. Certification will expire if the CLPs are not earned every two
years, and may result in a loss of warrant authority.
[71 FR 76490, Dec. 20, 2006]
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.
Subpart 302.1_Definitions
Sec. 302.101 Definitions.
Agency head or head of the Agency, unless otherwise specified, means
the head of the Operating Division (OPDIV) for Agency for Healthcare
Research and Quality (AHRQ), Centers for Disease Control and Prevention
(CDC), Centers for Medicare & Medicaid Services (CMS), Food and Drug
Administration (FDA), Health Resources and Services Administration
(HRSA), Indian Health Service (IHS), National Institutes of Health
(NIH), Substance Abuse and Mental Health Services (SAMHSA), and the
Deputy Secretary for the Office of the Secretary (OS).
Chief of the Contracting Office (CCO) is typically a mid-level
management official, usually an office director, division director, or
branch chief, who manages and monitors the daily contract operations of
an OPDIV or major component of an OPDIV. The CCO is subordinate to the
Head of Contracting Activity (HCA), except where the HCA and CCO are the
same individual.
Head of the contracting activity (HCA)--
(1) Occupies designated organization positions as follows:
ASAM-OS--Deputy Assistant Secretary for Acquisition Management and
Policy
AHRQ--Director, Division of Contracts Management
CMS--Director, Office of Acquisition and Grants Management
PSC--Director, Division of Acquisition Management
CDC--Director, Procurement and Grants Office
FDA--Director, Office of Acquisitions & Grant Services
HRSA--Director, Division of Procurement Management
IHS--Director, Division of Acquisition Policy
[[Page 12]]
NIH--Director, Office of Acquisition Management and Policy
SAMHSA--Director, Division of Contracts Management
(2) 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.
(3) 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, HCAs 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.
Project Officer is a Federal employee who monitors contractor
performance and provides technical guidance to the Contract Specialist/
Contracting Officer. The Project Officer serves as the Contract
Specialist/Contracting Officer's authorized representative to monitor
specific aspects of the contract, thereby ensuring that the contractor's
performance meets the standards set forth in the contract, the technical
requirements under the contract are met by the delivery date(s) and/or
within the period of performance, and performance is accomplished within
the price or estimated cost stated in the contract. A Project Officer is
required to comply with HHS Project Management Certification Program
training requirements. The term ``Project Officer'' is synonymous with
Contracting Officer's Representative (COR) and Contracting Officer's
Technical Representative (COTR).
[71 FR 76491, Dec. 20, 2006]
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) In accordance with 52.202-1(a)(1), paragraph (a) at 352.202-1
shall be used in place of paragraph (a) of the FAR clause.
(b) In accordance with 52.202-1(a)(1), 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.
[71 FR 76492, Dec. 20, 2006]
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.
Sec. 303.104-7 Violations or possible violations of the Procurement
Integrity Act.
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.
[[Page 13]]
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.
(a)(3) The Department of Health and Human Services' Standards of
Conduct are prescribed in 45 CFR part 73.
[71 FR 76492, Dec. 20, 2006]
Sec. 303.104-7 Violations or possible violations of the Procurement
Integrity Act.
(a)(1) The contracting officer's determination that a reported
violation or possible violation of the statutory prohibitions has no
impact on the impending award or selection of a contractor must be
submitted through appropriate channels, along with supporting
documentation, to the Head of Contracting Activity (HCA) for review and
approval of the determination awarding a contract.
(2) The contracting officer's determination that a reported
violation or possible violation of the statutory prohibitions has an
impact on the pending award or selection of a contractor must be
referred through channels, along with all related information available,
to the HCA (if the HCA is an SES) or to another SES official designated
by the OpDiv. That individual will--
(i) Refer the matter immediately to the Deputy Assistant Secretary
for Acquisition Management and Policy (DASAMP), Assistant Secretary for
Administration and Management, Office of the Secretary, for review,
which may consult with the Office of General Counsel (OGC) and the
Office of Inspector General (OIG), as appropriate; and
(ii) Determine the action to be taken on the procurement in
accordance with FAR 3.104-7(c) and (d). The HCA shall obtain the
approval or concurrence of the OAMP before proceeding with the action.
(b) The individual in paragraph (a)(2) of this section acts as the
agency head designee with respect to actions taken under the FAR clause
52.203-10, Price or Fee Adjustment for Illegal or Improper Authority.
[70 FR 39, Jan. 3, 2005, as amended at 71 FR 76492, Dec. 20, 2006]
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.
(h) A copy of the agency report of suspected antitrust violations
submitted to the Attorney General by the HCA shall also be submitted to
the Director, Office of Acquisition Management and Policy.
[71 FR 76492, Dec. 20, 2006]
Subpart 303.4_Contingent Fees
Sec. 303.405 Misrepresentations or violations of the Covenant Against
Contingent Fees.
(a) Reports shall be made promptly to the Contracting Officer.
(b)(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
[[Page 14]]
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 and Policy.
[71 FR 76492, Dec. 20, 2006]
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.
(a) 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).
[71 FR 76492, Dec. 20, 2006]
PART 304_ADMINISTRATIVE MATTERS
Subpart 304.6_Contract Reporting
Sec.
Sec. 304.602 Federal Procurement Data System--Next Generation (FPDS-NG).
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--Next Generation (FPDS-
NG).
The Departmental Contracts Information System (DCIS) represents the
Department's implementation of the FPDS-NG. All departmental contracting
activities are required to use the DCIS and follow the procedures stated
in the Enhanced Departmental Contracts Information System Manual,
available at http://dcis.hhs.gov, and amendments to the manual. 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 contracts and contract modifications awarded in
the previous month.
[71 FR 76492, Dec. 20, 2006]
Subpart 304.8_Government Contract Files
Sec. 304.804-70 Contract closeout audits.
(a) Contracting Officers shall rely, to the maximum extent possible,
on single audits to close physically completed cost-reimbursement
contracts with colleges and universities, hospitals, non-profit firms,
and State and local governments. In addition, where appropriate, a
sample of these contractors may be selected for audit, in accordance
with paragraph (b) of this section.
(b) Contracting officers shall request contract closeout audits on
physically completed, cost-reimbursement, for-profit contracts in
accordance with the following:
(1) The Office of the Inspector General (OIG) and ASAM's Deputy
Assistant Secretary for Acquisition Management and Policy in conjunction
with the OPDIV's cost advisory/audit focal point, determine which
contracts or contractors will be audited, which audit agency will
perform the audit, and the type and scope of closeout audit to be
performed. These decisions shall be based upon the needs of the
customer, risk analysis, return on investment, and the availability of
audit
[[Page 15]]
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 OPDIV's cost advisory/audit focal point.
(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 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.''
[66 FR 4224, Jan. 17, 2001, as amended at 71 FR 76493, Dec. 20, 2006]
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), (c), and (d) 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 of the Department (HHS);
(2) A one digit alphabetic identification code of the servicing
agency:
O Office of the Secretary
P Program Support Center
M Centers for Medicare & Medicaid Services
F Food and Drug Administration
D Centers for Disease Control and Prevention
I Indian Health Service
S Substance Abuse and Mental Health Administration
N National Institutes of Health
H Health Resources and Services Administration
A Agency for Health Care Research & Quality
(3) The three digit numeric identification code assigned by the
Deputy Assistant Secretary for Acquisition Management and Policy
(DASAMP) to the contracting office within the servicing agency;
(4) A four digit fiscal year designation (e.g., 2005, 2006);
(5) A five digit alphanumeric tracking number the content of which
is determined by the contracting office within the servicing agency; and
(6) A one digit code describing the type of contract action:
A Commercial Item Acquisition
C New Definitive Contract
P Purchase Using Simplified Acquisition
I Indefinite Delivery Contract (IDIQ)
O Basic Ordering Agreement (BOA)
B Blanket Purchase Agreement (BPA)
F Facilities Contract
U Contracts placed with or through other Government departments, GSA
contracts, or against mandatory source contracts such as the National
Industries for the Blind (NIB), the National Industries for the Severely
Handicapped (NISH), and the Federal Prison Industries (UNICOR)
L Lease Agreement
W Government-wide Acquisition Contract (GWAC)
[[Page 16]]
E Letter Contract
G Federal Supply Schedule
M Micropurchase
For example, the first contract for NIH, National Cancer Institute,
for fiscal year 2005 may be numbered HHSN261200500001C.
(c) Numbering system for orders. Order numbers will be assigned to
contracts with orders. The order number shall be up to a seventeen digit
number consisting of the following:
(1) The three digit identification code of the Department (HHS);
(2) A one digit numeric identification code of the servicing agency:
O Office of the Secretary
P Program Support Center
M Centers for Medicare & Medicaid Services
F Food and Drug Administration
D Centers for Disease Control and Prevention
I Indian Health Service
S Substance Abuse and Mental Health Administration
N National Institutes of Health
H Health Resources and Services Administration
A Agency for Health Care Research and Quality;
(3) The three digit numeric identification code assigned by the
Office of Acquisition Management and Policy (OAMP) to the contracting
office within the servicing agency;
(4) An alphanumeric tracking number, up to ten characters, the
content of which is determined by the contracting office within the
servicing agency.
(d) Numbering system for 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.
(e) Assignment of identification codes. Each contracting office of
the Department shall be assigned a three digit identification code by
the ASAM/OAMP. Requests for the assignment of codes for newly
established contracting offices shall be submitted by a headquarters
official from the new contracting office to the OAMP. A listing of the
contracting office identification codes currently in use is contained in
the Enhanced Departmental Contracts Information System Manual, available
at http://dcis.hhs.gov.
[66 FR 4224, Jan. 17, 2001, as amended at 70 FR 39, Jan. 3, 2005; 70 FR
11583, Mar. 9, 2005; 71 FR 76493, Dec. 20, 2006]
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.
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 17]]
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
Acquisition Management and Policy (DASAMP) requesting relief from
synopsizing. The DASAMP shall review the request and decide whether an
exception to synopsizing is appropriate or reasonable. If it is, the
DASAMP shall take the necessary coordinating actions required by FAR
5.202(b). Whatever the decision is on the request, the DSAMP shall
promptly notify the contracting office when a determination has been
made.
[71 FR 76493, Dec. 20, 2006]
Subpart 305.3_Synopses of Contract Awards
Sec. 305.303 Announcement of contract awards.
(a) Public announcement. Awards over $3.5 million, not otherwise
exempt under FAR 5.303, shall be reported by the Contracting Officer to
the Office of the 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. Notification may also be
accomplished by e-mailing a copy of the contract or award document face
page to [email protected], or faxing to (202) 205-2420.
[71 FR 76493, Dec. 20, 2006]
Subpart 305.5_Paid Advertisements
Sec. 305.502 Authority.
The Contracting Officer may advertise or place notices in newspapers
and periodicals to announce that proposals are being sought.
[71 FR 76493, Dec. 20, 2006]
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).
[[Page 18]]
Source: 66 FR 4225, Jan. 17, 2001, unless otherwise noted.
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)(iv) 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. (5) When the head of the program office has
determined that only specified makes and models 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.)
[71 FR 76493, Dec. 20, 2006]
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.
(a)(1) The Program Office must provide a written justification
whenever it requests that certain goods or services be obtained without
full and open competition. The justification must explain why full and
open competition is not feasible and must be submitted with the
requisition or request for contract.
(i) 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.
(ii) 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.
(iii) Sole source justifications using the Federal Supply Schedule
shall include the content listed in FAR 6.303-2.
[[Page 19]]
(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.
[71 FR 76493, Dec. 20, 2006]
Sec. 306.303-2 Content.
(a)(1) Each justification shall include the name of the program
office; the name, address, and phone number of the Project Officer; and
project identification, such as the authorizing program legislation, to
include citations or other internal program identification data such as
title, contract number, etc.
(2) 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) JOFOCs shall be signed by the Project Officer, the Project
Officer's immediate supervisor, the Contracting Officer, and the
approving official (if the approving official is not the Contracting
Officer).
[71 FR 76494, Dec. 20, 2006]
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 Deputy
Assistant Secretary for Acquisition Management and Policy. This
designation has been made pursuant to the OFPP Act (41 U.S.C.
414(c)(2)(B).
(c) A class justification shall be processed the same as an
individual justification.
[71 FR 76494, Dec. 20, 2006]
Subpart 306.5_Competition Advocates
Sec. 306.501 Requirement.
The Department's competition advocate is the Director, Strategic
Acquisition Service, Program Support Center (PSC). The competition
advocates for each of the Department's contracting activities are as
follows:
AHRQ--Director, Office of Performance Accountability, Resources and
Technology
CDC--Chief Information Officer
CMS--Chief Operating Officer
FDA--Chief, Office of Shared Services
HRSA--Associate Administrator, Office of Administration and Financial
Management
IHS--Director, Office of Management Services
NIH--Senior Scientific Advisor for Extramural Research, Office of
Extramural Research (R&D) and Senior Advisor to the Director (Other than
R&D)
PSC--Director, Strategic Acquisition Service
SAMHSA--Executive Officer
[71 FR 76494, Dec. 20, 2006]
PART 307_ACQUISITION PLANNING
Subpart 307.1_Acquisition Planning
Sec.
Sec. 307.104 General procedures.
Sec. 307.105 Contents of written acquisition plans.
Sec. 307.170 Program training requirements.
Sec. 307.170-1 Training policy exceptions.
Sec. 307.170-2 Training course prerequisites.
Sec. 307.170-3 Earned value training requirement for IT program/project
managers and IT CORs/COTRs.
Sec. 307.170-4 Required training in HHS' portfolio management tool.
Sec. 307.170-5 Maintenance/refresher training requirement for program/
project managers and CORs/COTRs.
Sec. 307.170-6 Warranting of Other Transaction Officers for Other
Transactions.
Sec. 307.170-7 Training requirements for Other Transaction Officers.
Sec. 307.170-8 Appointment of an Other Transaction Officer Technical
Representative for an Other Transaction.
Sec. 307.170-9 Training requirement for an Other Transaction Officer
Technical Representative.
Subpart 307.70_Considerations in Selecting an Award Instrument
Sec. 307.7000 Scope of subpart.
[[Page 20]]
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.
(a) Each contracting activity shall prepare an Annual Acquisition
Plan (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 HCA or the
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.
(b) Once the AAP is obtained from the program planning/budget
office, 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.)
(c) The purpose of the discussions between the Contracting and
Project Officers is to develop an individual acquisition planning
schedule and to address areas 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.
(d) 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.
(e) The outcome of the discussions referenced in paragraph (c) of
this section between the Project Officer and the Contracting Officer/
Contract 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 HCA or 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).
[71 FR 76494, Dec. 20, 2006]
[[Page 21]]
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.
(a) HHS will maintain a program for certifying employees before they
may be considered eligible for appointment as a program/project manager
or COR/COTR.
(b) All HHS program/project managers, alternate program/project
managers, CORs/COTRs, alternate CORs/COTRs, and at least fifty percent
of the HHS program personnel performing the function of technical
proposal evaluator on a technical evaluation team or panel for a
competitively solicited HHS contract, shall have successfully completed
the Department's ``Basic Project Officer'' course, or an equivalent
course, before assuming the duties of their designated role, or take the
next available class. This requirement applies to the initial technical
proposal evaluation and any subsequent technical evaluations that may be
required. (*Peer and objective reviewers are excluded from these
requirements). Course equivalency for the ``Basic Project Officer''
course will be determined by the ASAM/OAMP. The Contracting Officer is
responsible for ensuring that the program/project manager, COR/COTR, and
proposal evaluators have successfully completed the required training.
Non-information technology (IT) program/project managers and non-IT
CORs/COTRs who have successfully completed the appropriate ``Basic
Project Officer'' course, or an equivalent course, are highly encouraged
to take the Department's one-day course entitled ``Early Warning Project
Management System Workshop,'' or an equivalent Earned Value course.
Program/Project managers and CORs/COTRs are highly encouraged to take
the Department's ``Writing Statements of Work'' course, or an equivalent
course. Peer and objective reviewers are excluded from these
requirements. (*The peer review process pertains specifically to NIH in
the peer review of applications for grants and contracts. Applications
are evaluated by a peer review group composed of scientists from the
extramural research community.) All courses are offered through HHS
University.
[71 FR 76495, Dec. 20, 2006]
Sec. 307.170-1 Training policy exceptions.
In the event there is an urgent requirement for a specific
individual to serve as a program/project manager and COR/COTR (or
alternate program/project manager and alternate COR/COTR) and that
individual has not successfully completed the prerequisite training
course(s), 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 HHS ``Project Officer's Contracting Handbook'' to
discuss the important aspects of the contracting-program office
relationship as appropriate to the circumstances; and
(b) The individual attends the next scheduled ``Basic Project
Officer'' course, or an equivalent course, and, for those current and
proposed IT program/project managers, as well as alternate IT program/
project managers and IT CORs/COTRs (as well as alternate CORs/COTRs)
assigned to HHS IT projects (including those designated as major or
tactical by HHS), the next ``Early Warning Project Management System
Workshop.''
[71 FR 76495, Dec. 20, 2006]
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.
[[Page 22]]
(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) Project Officers on HHS projects for which HHS or OMB requires
an Exhibit 300 [under OMB Circular A-11, part 7] must successfully
complete either HHS'' ``Early Warning Project Management System
Workshop'' or an equivalent Earned Value Management course (see
paragraph 307.170(c)).
(4) 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.
[66 FR 4226, Jan. 17, 2001, as amended at 70 FR 40, Jan. 3, 2005]
Sec. 307.170-3 Earned value training requirement for IT program/project
managers and IT CORs/COTRs.
All current and proposed IT program/project managers, alternate IT
program/project managers, IT CORs/COTRs, and alternate CORs/COTRs
assigned to HHS IT projects (including those IT projects designated as
major or tactical), regardless of dollar threshold, must successfully
complete the Department's (offered through HHS University) one-day
course entitled ``Early Warning Project Management System Workshop,'' or
an equivalent Earned Value training course. Course equivalency will be
determined jointly by the ASAM/OAMP and the HHS Office of the Chief
Information Officer.
[71 FR 76495, Dec. 20, 2006]
Sec. 307.170-4 Reqired training in HHS' portfolio management tool.
All current and proposed IT program/project managers, as well as
alternate IT program/project managers and IT CORs/COTRs (as well as
alternate IT CORs/COTRs), regardless of dollar threshold, must
successfully complete training in HHS' portfolio management tool
(contact the HHS Office of the Chief Information Officer for additional
information).
[71 FR 76495, Dec. 20, 2006]
Sec. 307.170-5 Maintenance/refresher training requirement for program/
project managers and CORs/COTRs.
Program/Project Managers and CORs/COTRs who monitor one or more
contracts are required to take 40 CLPs each year.
[71 FR 76495, Dec. 20, 2006]
Sec. 307.170-6 Warranting of Other Transaction Officers for Other
Transactions.
(a) Other Transaction (OT) Officers shall possess the qualifications
necessary to ensure that OTs are in compliance with applicable laws and
regulations. The ASAM/OAMP will have the sole authority to warrant OT
Officers at HHS. To receive a warrant as an HHS OT Officer, the
individual must be a Contracting Officer, preferably with an unlimited
warrant, with a Federal Acquisition Certification in Contracting (FAC-C)
Level III, or a Level III or IV certified Grants Officer within HHS.
Nominations for appointment of OT Officers shall be submitted to the
Head of Contracting Activity in writing through appropriate
organizational channels for review. The nomination package shall include
the following:
(1) A completed Appendix A (``OT Officer's Warrant Application
Form'') of HHS Other Transaction Authority Guidebook;
(2) A recommendation from the employee's immediate supervisor
providing justification for the appointment of an HHS OT Officer;
(3) Current resume/OF 612/SF 171 and/or other documentation
describing the employee's experience, education, and training relevant
to the position for which warrant authority is being sought;
(4) A copy of the employee's most recent performance appraisal;
(5) Type of work to be performed under the warrant, i.e., executing
OTs;
[[Page 23]]
(6) A copy of the certificate issued under the HHS Acquisition
Certification Program indicating the employee's current certification
level and a copy of previous warrant certificate, if applicable; or a
copy of the certificate issued under the HHS Grants Certification
Program, if applicable; and
(7) Proof of successful completion of the ``Cooperative Agreements,
CRADAs & Other Transactions'' course taught by Federal Publications
Seminars, or an equivalent course.
(b) For additional information, see http://www.knownet.hhs.gov/
acquisition/hhs--epp--postings/HHSGuidebook1-OTAMarch2005.doc.
[71 FR 76495, Dec. 20, 2006]
Sec. 307.170-7 Training requirements for Other Transaction Officers.
OT Officers must successfully complete the ``Cooperative Agreements,
CRADAs & Other Transactions'' course, or an equivalent course, prior to
appointment as an OT Officer. Grants Officers who serve as OT Officers
are required to have successfully completed the following courses: CON
110 (``Mission Support Planning''); CON 111 (``Mission Strategy
Execution,''); CON 112 (``Mission Performance,'') or CON 120 (``Mission
Focused Contracting.''), or equivalent courses prior to being appointed
as an OT Officer. The HHS OTA Board will determine course equivalency.
[71 FR 76495, Dec. 20, 2006]
Sec. 307.170-8 Appointment of an Other Transaction Officer Technical
Representative for an Other Transaction.
The program office nominates the Other Transaction Officer Technical
Representative (OTR). The OT Officer prepares an OTR delegation
memorandum that describes the OTR's authority and assigns the OTR
specific responsibilities, with limitations of authority, in writing.
The OTR represents the OT Officer only to the extent delegated in the
written appointment and does not have the authority to change the terms
and conditions of the OT.
[71 FR 76495, Dec. 20, 2006]
Sec. 307.170-9 Training requirement for an Other Transaction Officer
Technical Representative.
(a) Program personnel selected to serve as an OTR or an alternate
OTR assigned to an OT, and at least fifty percent of the technical
evaluators that review the initial and any subsequent proposals or
revisions thereof, shall successfully complete the Department's ``Basic
Project Officer'' course, or an equivalent course prior to being
appointed. Determination of course equivalency shall be made by the HHS
OTA Board.
(b) In addition to the Department's required ``Basic Project
Officer'' course, the OTR or alternate OTR assigned to an OT, and at
least fifty percent of the technical evaluators that review the initial
and any subsequent proposals or revisions thereof, shall successfully
complete the ``Cooperative Agreements, CRADAs & Other Transactions''
course, or an equivalent course, prior to being appointed and prior to
assuming job duties associated with the OT.
(c) Refresher training in the policies and procedures of awarding
cooperative agreements, CRADAs and OTs is required every three years.
[71 FR 76495, Dec. 20, 2006]
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,
[[Page 24]]
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 Acquisition Management and Policy (DASAMP).
(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.
(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.
[66 FR 4226, Jan. 17, 2001, as amended at 71 FR 76496, Dec. 20, 2006]
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
[[Page 25]]
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
Director, OAMP, 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 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 cover
memorandum. The cover memorandum 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.
[71 FR 76496, Dec. 20, 2006]
Sec. 307.7105 Format and content.
The Department is in the process of standardizing a format for the
RFC. In the interim, the information in paragraph (a) of this section
must be included. Paragraph (b) contains information that must also be
included if applicable.
(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.
[[Page 26]]
(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.
(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, veteran-owned, service-
disabled veteran-owned, 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/
[[Page 27]]
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. The following special
program clearances or approvals should be reviewed for applicability to
each acquisition. Those which are applicable should be addressed during
the planning discussions between the Project Officer and Contracting
Officer/Contract Specialist (see 307.104(c)) and immediate action should
be initiated by the Project Officer to obtain the necessary clearances
or approvals. The Contracting Officer/Contract Specialist shall provide
a comprehensive checklist of these and any OPDIV special approvals,
clearances, and requirements to the program office. 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). An 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 public-private cost
comparison. (See OMB Circular No. A-76, Performance of Commercial
Activities.)
(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 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
[[Page 28]]
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.
(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.
[66 FR 4226, Jan. 17, 2001, as amended at 70 FR 40, Jan. 3, 2005; 71 FR
76496, Dec. 20, 2006]
Sec. 307.7106 Statement of work.
(a) General. A statement of work (SOW) describes the work or
services to be performed in reaching an end result without describing
the method that will be used unless the method of performance is
critical or required in order to obtain successful performance. The SOW
should be clear and concise and must completely define the
responsibilities of both the contractor and the Government. The SOW
should be worded to make more than one interpretation virtually
impossible.
(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
[[Page 29]]
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 include the following:
(1) Purpose of the project. This includes a general description of
the objectives of the project and the desired results.
(2) Background information. This includes a brief history of the
project and the importance of the project to the overall program
objectives.
(3) A detailed description of the technical requirements. The
statement of work should provide sufficient detail to accurately reflect
the Government's requirement. It should state what is to be done without
prescribing the method to be used and should include performance
standards. The statement of work may be broken down into tasks and
subtasks. The degree of breakout depends on the size and complexity of
the project. The statement of work should indicate whether the tasks are
sequential or concurrent.
(4) Reference material. All reference material to be used in the
conduct of the project that indicates 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.
(5) 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.
(6) Special requirements. (as applicable). An unusual or special
contractual requirement, which would impact on contract performance,
should be included as a separate section.
(7) Deliverables reporting requirements. All deliverables and/or
reports must be clearly and completely described. Include the timeframe
for completion, the format, and the number of copies.
[66 FR 4226, Jan. 17, 2001, as amended at 71 FR 76496, Dec. 20, 2006]
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.
[[Page 30]]
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 Administration
and Management, or his/her designee.
Initiating official means either the contracting officer, the head
of the contracting activity, the Deputy Assistant Secretary for
Acquisition Management and Policy, or the Inspector General.
Suspending official means the Assistant Secretary for Administration
and Management, or his/her designee.
[71 FR 76497, Dec. 20, 2006]
Sec. 309.404 List of parties excluded from Federal procurement and
nonprocurement programs.
(c) The Office of Acquisition Management and Policy (OAMP) shall
perform the actions required by FAR 9.404(c).
(4) OAMP 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 OAMP review.
[71 FR 76497, Dec. 20, 2006]
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. Compelling reasons for award of a contract 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; or
(ii) The urgency of the requirement dictates that the Department
conduct business 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.
[66 FR 4231, Jan. 17, 2001, as amended at 71 FR 76497, Dec. 20, 2006]
[[Page 31]]
Sec. 309.406 Debarment.
Sec. 309.406-3 Procedures.
(a) Investigation and referral. When an apparent cause for debarment
becomes known, the initiating official shall prepare a report containing
the information required by 309.470-2, along with a written
recommendation, and forward it through appropriate channels to the
debarring official. Reports shall be forwarded in accordance with
309.470-1. The debarring official, the Deputy Assistant Secretary for
Acquisition Management and Policy, shall initiate an investigation.
(b) Decision making process. The debarring official shall review the
results of the investigation, if any, and make a written determination
whether or not debarment procedures 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 it is determined
that debarment procedures shall commence, the debarring official shall
consult with the Office of General Counsel and then notify the
contractor in accordance with FAR 9.406-3(c). If the proposed action is
not based on a conviction or judgment and the contractor's submission in
response to the notice raises a genuine dispute over facts material to
the proposed debarment, the debarring official shall arrange for fact-
finding hearings and take the necessary action specified in FAR 9.406-
3(b)(2). The debarring official shall also ensure that written findings
of facts are prepared, and shall base the debarment decisions on the
facts as found, after considering information and argument submitted by
the contractor and any other information in the administrative record.
The Office of the General Counsel shall represent the Department at any
fact-finding hearing and may present witnesses for HHS and question any
witnesses presented by the contractor.
[71 FR 76497, Dec. 20, 2006]
Sec. 309.407 Suspension.
Sec. 309.407-3 Procedures.
(a) Investigation and referral. When an apparent cause for
suspension becomes known, the initiating official shall prepare a report
containing the information required by 309.470-2 along with a written
recommendation and forward it through appropriate channels to the
suspending official. Reports shall be forwarded in accordance with
309.470-1. The suspending official shall initiate an investigation.
(b) Decision making process. The suspending official shall review
the results of the investigation, if any, and make a written
determination whether or not suspension should be imposed. A copy of
this determination shall be promptly sent through appropriate channels
to the initiating official and the Contracting Officer. If it is
determined that suspension shall be imposed, the suspending official
shall consult with the Office of General Counsel and then notify the
contractor in accordance with FAR 9.407-3(c). If the action is not based
on an indictment, and, subject to the provisions of FAR 9.407-3(b)(2),
the contractor's submission in response to the notice raises a genuine
dispute over facts material to the suspension, the suspending official
shall, after suspension has been imposed, arrange for fact-finding
hearings and take the necessary actions specified in FAR 9.407-3(b)(2).
[71 FR 76497, Dec. 20, 2006]
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 OAMP 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.
[66 FR 4231, Jan. 17, 2001, as amended at 71 FR 76498, Dec. 20, 2006]
[[Page 32]]
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 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.
PART 311_DESCRIBING AGENCY NEEDS
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Sec. 311.003 Defining Electronic Information Technology (EIT)
requirements.
HHS officials who are defining agency needs for EIT products and
services and performing market research to meet those needs can use the
Buy Accessible Wizard (http://www.buyaccessible.gov) managed by the
General Services Administration to document EIT requirements, identify
the applicable Section 508 standards, and document the market research.
[71 FR 76498, Dec. 20, 2007]
PART 312_ACQUISITION OF COMMERCIAL ITEMS
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Subpart 312.1_Acquisition of Commercial Items_General
Sec. 312.101 Policy.
(a) It is HHS policy to maximize its buying power, reduce
acquisition administrative costs, and develop long-term, mutually
beneficial, open partnerships with best-in-class providers of products
and services. Accordingly, HHS has implemented a Strategic Sourcing
Program under which Indefinite-Delivery/Indefinite-Quantity contracts
(IDIQs) and Blanket Purchase Agreements (BPAs), known as HHS-wide
Acquisition Contracts (HWACs), are awarded to allow for savings for
commercial items and services across HHS and make the acquisition
process more efficient.
(b) If consideration is being given to soliciting or acquiring a
product or service from a source, other than HHS Contract Closeout IDIQs
or Strategic Sourcing BPAs, when the category of the current requirement
(e.g. Lab Supplies, Events Management) is encompassed in the portfolio
of existing IDIQ or BPA categories a waiver request must be prepared and
approved in advance of a purchase or processing of a requirement.
[[Page 33]]
(c) The instructions, including approval requirements, and waiver
form, are available at http://dbh.ogam2000.com/HHS--Strategic--Sourcing/
Data--Collection/waiver.asp.
The following links provide more detailed information regarding the
supplies, equipment, and services in each of the HWACs: the HHS
Acquisition Integration and Modernization Web site: http://
intranet.hhs.gov/hwac/index.html and the HHS Strategic Sourcing Web
site: http://intranet.hhs.gov/ssc/.
[71 FR 76498, Dec. 20, 2007]
[[Page 34]]
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.
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 35]]
Subpart 314.2_Solicitation of Bids
Sec. 314.202 General rules for solicitation of bids.
Sec. 314.202-7 Facsimile bids.
(c) If the 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.
[71 FR 76498, Dec. 20, 2006]
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.
(c) The HCA or CCO (not delegable) shall make the determinations
required to be made by the agency head in FAR 14.404-1.
[71 FR 76498, Dec. 20, 2006]
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 and Policy, 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, General Law Division, Office of General Counsel.
(i) Doubtful cases shall not be submitted by the Contracting Officer
directly to the Comptroller General, but, instead, shall be submitted to
the Departmental Protest Control Officer.
[71 FR 76498, Dec. 20, 2006]
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, General Law Division, Office of General Counsel.
[66 FR 4233, Jan. 17, 2001, as amended at 71 FR 76498, Dec. 20, 2006]
PART 315_CONTRACTING BY NEGOTIATION
Subpart 315.2_Solicitation and Receipt of Proposals and Information
Sec.
Sec. 315.204 Contract format.
Sec. 315.204-1 Uniform contract format.
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.
Subpart 315.2_Solicitation and Receipt of Proposals and Information
Sec. 315.204 Contract format.
Sec. 315.204-1 Uniform contract format.
(a) When preparing solicitations and resulting contracts,
Contracting Officers/Contract Specialists are strongly encouraged to use
as a guide the HHS
[[Page 36]]
Solicitation/Contract Structure Document found at http://
www.knownet.hhs.gov/acquisition/policy.htm.
[71 FR 76498, Dec. 20, 2006]
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.
[66 FR 4233, Jan. 17, 2001, as amended at 71 FR 76498, Dec. 20, 2006]
Subpart 315.3_Source Selection
Sec. 315.305 Proposal evaluation.
(a)(1) Cost or price evaluation. (i) The Contracting Officer shall
evaluate business proposals in accordance with the requirements set
forth in FAR 15.404. The extent of cost or price analysis in each case
depends on the contract type, the amount of the proposal, the technical
complexity, and related cost or price. The Project Officer shall be
requested to analyze the following elements, if applicable, to determine
if they are necessary and reasonable for efficient contract performance:
(A) The number of labor hours proposed for the various labor
categories and the mix in relation to the technical requirements;
(B) Types, numbers and hours/days of proposed consultants;
(C) The kinds and quantities of material, equipment, supplies, and
services;
(D) Kinds and quantities of information technology;
(E) Logic of proposed subcontracting; and
(F) Travel proposed, including number of trips, locations, purpose,
and travelers.
(ii) The Project Officer shall provide written comments, including
the rationale for any exceptions to the elements. The Project Officer's
comments shall be used for negotiations or to support award without
discussions. The Contracting Officer should also request assistance of a
cost/price analyst, when necessary. The Contracting Officer's
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);
[[Page 37]]
(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 shall 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 prohibited by law or contracting activity procedures.
(2) The Project Officer is responsible for recommending panel
members who are knowledgeable in the technical aspects of the
acquisition and capable of identifying strengths and weaknesses in the
proposals received. Government employees serving as panel members must
be selected in accordance with the requirements set forth in 307.170.
(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 for acquisitions in which such issues are applicable.
(4) The Project Officer shall submit the list of recommended panel
members to an official within the project office in a position at least
one level higher. This official will review the list and select the
chairperson.
(5) The Project Officer shall arrange for adequate and secure
working space for the panel.
(C) Role of the contracting officer. (1) The term ``contracting
officer,'' as used in this subpart, may be the contracting officer or
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 shall evaluate all original proposals, make
[[Page 38]]
recommendations to the chairperson regarding strengths and weaknesses of
proposals, and, if required by the Contracting Officer, assist the
Contracting Officer during communications and discussions, and review
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) When continuity of the evaluation process is not possible, and
either new evaluators are selected or the size of the evaluation panel
is reduced, all proposals shall be reviewed by each panel member at the
current stage of the acquisition (i.e., initial proposal, final proposal
revisions, etc.). Also, guidance should be provided concerning what to
do if an unusually large number of proposals are received, including how
to determine what constitutes an unusually large number of proposals.
(F) Use of outside evaluators. (1) The National Institutes of Health
(NIH) and 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) Decisions to disclose proposals to evaluators outside of the
Government shall be made by the official responsible for appointing
panel members in accordance with operating division procedures. The
avoidance of organization conflict of interest and competitive
relationships must be taken into consideration when making the decision
to use outside evaluators.
(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 for evaluation purposes
only.
The foregoing requirement does not apply to data obtained from
another source without restriction.
Any notice or legend placed on the proposal by either 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 to the
Government the furnished copy of the proposal or abstract, and
[[Page 39]]
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's employees and subcontractors shall abide by 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
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
[[Page 40]]
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.
[66 FR 4233, Jan. 17, 2001, as amended at 71 FR 76498, Dec. 20, 2006]
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 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
[[Page 41]]
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) After details have been finalized with the selected offeror, the
Contracting Officer shall:
(1) Prepare the negotiation memorandum in accordance with 315.372;
(2) Prepare the contract containing all agreed to terms and
conditions and clauses required by law or regulation;
(3) Include in the contract file the pertinent documents referenced
in FAR 4.803; and
(4) Obtain the appropriate approval of the proposed contract
award(s) in accordance with subpart 304.71 and contracting activity
procedures.
(b) After receiving the required approvals, the 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.
(c) The contract shall not be issued until the finance office
certifies that the funds are available for obligation.
[66 FR 4233, Jan. 17, 2001, as amended at 71 FR 76499, Dec. 20, 2006]
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 Contracting Officer/Contract Specialist 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. The
negotiation memorandum shall address each item listed below. If an item
is not applicable, it shall be so stated in the memorandum. Information
already contained in the contract file may be referenced rather than
reiterated.
(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.
(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.
[[Page 42]]
(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:
(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
[[Page 43]]
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.
[66 FR 4233, Jan. 17, 2001, as amended at 71 FR 76499, Dec. 20, 2006]
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
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 called profit) provides a technique for establishing a
profit objective for negotiation. A profit objective is that part of the
estimated contract price objective or value which, in the judgment of
the Contracting Officer, constitutes an appropriate amount of profit for
the acquisition being considered. This technique allows for
consideration of the profit factors described in paragraph (d) of this
section. The Contracting Officer's analysis of these factors is based on
available information such as proposals, audit data, assessment reports,
preaward surveys, etc. The structured approach provides a basis for
documenting the profit objective. Any significant departure from this
objective shall be explained. The amount of documentation depends on the
dollar value and complexity of the proposed acquisition. The profit
objective is a part of the overall negotiation objective and is directly
related to
[[Page 44]]
the cost objective and any proposed sharing arrangement. The profit
objective should be negotiated at the same time as the other cost items.
The profit objective should be negotiated as a whole and not as
individual profit factors.
(ii) The profit analysis factors in FAR 15.404-4(d) shall be used in
lieu of the structured approach in the following circumstances. Factors
considered inapplicable to the acquisition shall be excluded from the
profit objective. Documentation shall be provided which includes the
profit factor breakdown.
(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. The Contracting Officer
shall develop the profit objective. This objective shall realistically
reflect the total overall task to be performed and the requirements
placed on the contractor. The Contracting Officer shall not begin to
develop the profit objective 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) The Contracting Officer shall measure ``Contractor Effort'' by
assigning a profit percentage within the designated weight range to each
element of contract cost. The categories listed are for reference
purposes only, but are broad and basic enough to provide guidance to
other elements of cost. Facilities capital cost of money is not to be
included. A total dollar profit shall be computed for ``Contractor
Effort.''
(ii) The Contracting Officer shall use the total dollar profit for
the ``Contractor Effort'' to calculate specific profit dollars for
``Other Factors''--cost risk, investment, performance, socioeconomic
programs, and special situations. The Contracting Officer shall multiply
the total dollar profit for the ``Contractor Effort'' by the weight
assigned to each of the elements in the ``Other Factors'' category.
Facilities capital cost of money is not included. Form HHS-674,
Structured Approach Profit/Fee Objective, should be used. 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, the
structured approach can be used for nonprofit organizations if
[[Page 45]]
appropriate adjustments are made. The Contracting Officer shall use the
modified structured approach in paragraph (d)(1)(iv)(B) of this section
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 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
[[Page 46]]
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 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
[[Page 47]]
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, 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
[[Page 48]]
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
------------------------------------------------------------------------
(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.
[[Page 49]]
(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
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, service-disabled veterans, handicapped sheltered
workshops, 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
[[Page 50]]
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 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.
[66 FR 4233, Jan. 17, 2001, as amended at 71 FR 76499, Dec. 20, 2006]
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 the HCA's designee shall be the point of contact for
coordinating the receipt and handling of unsolicited proposals.
[66 FR 4233, Jan. 17, 2001, as amended at 71 FR 76500, Dec. 20, 2006]
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
[[Page 51]]
Information Act. Because of this possibility, the following notice shall
be provided to all prospective offerors of unsolicited proposals:
The Government will attempt to comply with the ``Use and Disclosure
of Data'' legend.
However, the Government may not be able to withhold a record (data,
document, etc.) 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.
[66 FR 4233, Jan. 17, 2001, as amended at 71 FR 76500, Dec. 20, 2006]
PART 316_TYPES OF CONTRACTS
Subpart 316.3_Cost-Reimbursement Contracts
Sec.
Sec. 316.307 Contract clauses.
Sec. 316.505 Ordering.
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.
Sec. 316.603-71 Approval for modifications to letter contracts.
Subpart 316.7_Agreements
Sec. 316.770 Unauthorized types of agreements.
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.
Sec. 316.505 Ordering.
(b)(5) The Department's task-order and delivery-order ombudsman is
the Director, Strategic Acquisition Service, Program Support Center
(PSC). The task-order and delivery-order ombudsmen for each of the
Department's contracting activities are as follows:
AHRQ--Director, Office of Performance Accountability, Resources and
Technology
CDC--Chief Information Officer
CMS--Chief Operating Officer
FDA--Director, Office of Acquisitions and Grants Services
HRSA--Associate Administrator, Office of Administration and Financial
Management
Indian Health Service--Director, Office of Management Services
NIH--Senior Scientific Advisor for Extramural Research, Office of
Extramural Research (R&D) and Senior Advisor to the Director (Other
than R&D)
PSC--Director, Strategic Acquisition Service
SAMHSA--Executive Officer
[71 FR 76500, Dec. 20, 2006]
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 make the
written determination.
[71 FR 76500, Dec. 20, 2006]
[[Page 52]]
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.
(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. 316.770-2 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.
[[Page 53]]
Sec. 317.204 Contracts.
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.
Sec. 317.204 Contracts.
The total of the basic and option periods shall not exceed 10 years
in the case of services and the total of the basic and option quantities
shall not exceed the requirement for 5 years in the case of supplies.
These limitations do not apply to information technology contracts.
However, statutes applicable to various classes of contracts may place
additional restrictions on the length of contracts.
[70 FR 11583, Mar. 9, 2005]
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 54]]
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) co-located within the
OPDIVs. Appointments, and termination of appointments, shall be made in
writing by the Director, Office of Small and Disadvantaged Business
Utilization (OSDBU). The Director, OSDBU, will exercise full management
authority over small business specialists.
(2) One or more qualified SBS shall be appointed in the following
activities: Agency for Healthcare Research and Quality (AHRQ), Centers
for Medicare & Medicaid Services (CMS), 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 (CDC), Program Support Center (PSC), and the Office of
the Secretary (OS).
[66 FR 4244, Jan. 17, 2001, as amended at 71 FR 76500, Dec. 20, 2006]
Subpart 319.5_Set-Asides For Small Business
Sec. 319.501 General.
(e) Subsequent to the Contracting Officer's recommendation on Form
HHS-653, Small Business Set-Aside Review Form, the SBS shall review each
proposed acquisition strategy and either concur or non-concur with the
Contracting Officer's recommendation. The Small Business
Administration's Procurement Center Representative (SBA/PCR) shall also
review the acquisition strategy and either concur or non-concur with the
Contracting Officer's recommendation. If the Contracting Officer
disapproves the SBS's and/or the SBA PCR'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.
[71 FR 76501, Dec. 20, 2006]
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.
[[Page 55]]
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, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY
TECHNOLOGIES, 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.
PART 324_PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
Subpart 324.1_Protection of Individual Privacy
Sec.
Sec. 324.000 Scope of subpart.
Sec. 324.102 General.
Sec. 324.103 Procedures.
[[Page 56]]
Subpart 324.2_Freedom of Information Act
Sec. 324.203 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. 324.000 Scope of subpart.
This part prescribes policies and procedures that apply requirements
of the Privacy Act of 1974 (5 U.S.C. 552a) (the Act) and OMB Circular A-
130, Revised, November 30, 2000, to Government contracts and cites the
Freedom of Information Act (5 U.S.C. 552, as amended).
[70 FR 40, Jan. 3, 2005]
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. The Privacy Act requirements are applicable when the
contract will require the contractor to design, develop, or operate any
Privacy Act system of records on individuals to accomplish an agency
function. When applicable, the contracting officer shall include the
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 in the contract work
statement the system(s) of records to which the Privacy Act and the
implementing regulations are applicable.
(2) The Contracting Officer shall include the clause specified in
352.270-11 in Section H of any RFP or resulting contract to notify the
contractor that it and its employees are subject to criminal penalties
for violations of the Act (5 U.S.C. 552a(i)) to the same extent as HHS
employees. The clause also requires that the contractor ensure that each
of its employees knows the prescribed rules of conduct and each
contractor employee is aware that he/she is subject to criminal
penalties for violations of the Act. These provisions
[[Page 57]]
also apply to all subcontracts awarded under the contract which require
the design, development or operation of a system of records. The
Contracting Officer shall send the contractor a copy of 45 CFR part 5b,
which includes the rules of conduct and other Privacy Act requirements.
(c) The Contracting Officer shall specify in the contract work
statement and award the disposition to be made of the system(s) of
records upon completion of contract performance. The contract work
statement may require the contractor to destroy the records, remove
personal identifiers, or turn the records over to the Contracting
Officer. If there is a legitimate need for a contractor to keep copies
of the records after completion of a contract, the contractor must take
measures, as approved by the Contracting Officer, to keep the records
confidential and protect the individuals' privacy.
(d) 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.
[66 FR 4245, Jan. 17, 2001, as amended at 71 FR 76501, Dec. 20, 2006]
Subpart 324.2_Freedom of Information Act
Sec. 324.203 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 Freedom of Information
Act (FOIA) request, shall follow Department and OPDIV procedures. As
necessary, actions should be coordinated with the cognizant Freedom of
Information (FOI) Officer and the General 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
Sec. Sec. 5.65 and 5.66; also of interest are Sec. Sec. 5.32, 5.33,
and 5.35.
[66 FR 4245, Jan. 17, 2001. Redesignated and amended at 71 FR 76501,
Dec. 20, 2006]
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
[[Page 58]]
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, 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.
[[Page 59]]
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, Division of Acquisition Policy (DAP). Requests shall be
forwarded through normal acquisition channels to the DAP.
[71 FR 76501, Dec. 20, 2006]
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. 332.705-2 Clauses for limitation of costs or funds.
Subpart 332.9--Prompt Payment [Reserved]
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 HCA shall determine whether an advance payment is in the
public interest in accordance with FAR
[[Page 60]]
32.402(c)(1)(iii)(A). This authority is non delegable.
[71 FR 76501, Dec. 20, 2006]
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. Interest-free advance payments may also
be approved for educational institutions and other nonprofit
organizations, whether public or private, performing work under
nonprofit contracts (without fee) involving health services, educational
programs, or social service programs, such as:
(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.
[66 FR 4247, Jan. 17, 2001, as amended at 71 FR 76501, Dec. 20, 2006]
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 HCA (not delegable).
[71 FR 76501, Dec. 20, 2006]
Subpart 332.7_Contract Funding
Sec. 332.702 Policy.
An incrementally funded contract is a multiple year contract in
which funds are allocated to cover specific phases or increments of
performance.
(a) Incremental funding may be used in cost-reimbursement type
contracts for the acquisition of severable services. It shall not be
used in contracts for construction or architect-engineer services.
Incremental funding allows severable cost-reimbursement type contracts
awarded for more than one year to be funded from succeeding fiscal
years.
(b) It is Departmental policy that multiple year contracts be fully
funded whenever possible. 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 for the succeeding fiscal years of the
project's duration;
(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
[[Page 61]]
(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.
[71 FR 76501, Dec. 20, 2006]
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 of 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' technical and cost proposals must include the entire
project and shall show distinct 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 period of time that the funds cover
shall be stated in the contract.
(6) An incrementally funded contract must contain precise
requirements for progress reports to be sent to the Project and
Contracting Officers. These reports will enable the contract to be
effectively monitored. The Project Officer shall prepare periodic
performance evaluation reports and provide them to the Contracting
Officer.
[71 FR 76502, Dec. 20, 2006]
Sec. 332.704 Limitation of cost or funds.
See subpart 342.71, ``Administrative Actions for Cost Overruns,''
for procedures for handling anticipated cost overruns.
[71 FR 76502, Dec. 20, 2006]
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 of
incremental funding is contemplated.
Subpart 332.9--Prompt Payment [Reserved]
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.
[[Page 62]]
Sec. 333.212 Contracting officer's duties upon appeal.
Sec. 333.212-70 Formats.
Sec. 333.213 Obligation to continue performance.
Sec. 333.215-70 Additional contract clause.
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.
(g)(1) The Office of Acquisition Management (Division of Acquisition
Policy (DAP)) has been designated as the headquarters office to serve as
the liaison for protests lodged with GAO. Within the Division of
Acquisition Policy (DAP), 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, Division of
Acquisition Policy (DAP).
[66 FR 4249, Jan. 17, 2001, as amended at 71 FR 76502, Dec. 20, 2006]
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, or requests referral to the Secretary, approval shall also be
obtained from the Director, Division of Acquisition Policy (DAP) 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(f)(3).
[66 FR 4249, Jan. 17, 2001, as amended at 71 FR 76502, Dec. 20, 2006]
Sec. 333.104 Protests to GAO.
(a) General procedures. (3)(ii) The DPCO shall process protests
filed with GAO, whether pre- or post award. 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-GLD. In addition to the items
listed in 33.104(a)(3)(ii)(A) through (G), the protest file shall
include the following documents:
(H) The current status of award. When award has been made, this
shall
[[Page 63]]
include whether performance has commenced, shipment or delivery has been
made, or a stop work order has been issued.
(I) A copy of any mutual agreement to suspend work on a no-cost
basis, when appropriate (see FAR 33.104(c)(4)).
(J) Copies of the notice of protest given offerors and other parties
when the notice is appropriate (see FAR 33.104(a)(2)).
(K) A copy of the negotiation memorandum, when applicable.
(L) The name and telephone number of the person in the contracting
office who may be contacted for information relevant to the protest.
(M) A copy of the competitive range memorandum.
(N) 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.
The files shall be assembled in an orderly manner and shall have an
index of enclosures and any document referred to therein.
(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)(ii) of this
section (with the exception of the contracting officer statement of
facts and circumstances) and FAR 33.104(a)(3)(ii)(A) through (G) to the
DPCO within fourteen (14) calendar days from receipt of the protest. The
contracting officer shall submit the contracting officer's statement of
facts and circumstances within twenty-one (21) calendar days from
receipt of the protest. Since the statute allows only a short time
period in which to respond to protests lodged with GAO, the Contracting
Officer shall handle each protest on a priority basis. The DPCO shall
submit copies of the protest file to GAO, the protestor, and any
intervenors in accordance with FAR 33.104(a)(4)(i).
(6) Since the DPCO will furnish the protest file to GAO, the
protestor, and any intervenors, comments on the file from the protestor
and any intervenors will be sent to the DPCO.
(7) The DPCO, Division of Acquisition Policy (DAP), shall serve as
the GAO point of contact for protests lodged with GAO.
(b) Protests before award. (1) To make an award notwithstanding a
protest, the Contracting Officer shall prepare a finding using the
criteria in FAR 33.104(b)(1), have it executed by the HCA (not
delegable), and forward it, along with a written request for approval to
make the award, to the Deputy Assistant Secretary for Acquisition
Management and Policy (DASAMP).
(2) If the request to make an award notwithstanding the protest is
approved by the Deputy Assistant Secretary for Acquisition Management
and Policy (DASAMP), 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 Deputy
Assistant Secretary for Acquisition Management and Policy (DASAMP), 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.
(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 Deputy Assistant
Secretary for Acquisition Management and Policy (DASAMP). The same
procedures for notification stated in paragraph (b)(2) of this section
shall be followed.
(d) Findings and notice. The written notice required by FAR
33.104(d) shall be provided to the protestor and any intervenors by the
DPCO.
(g) Notice to GAO. The Deputy Assistant Secretary for Acquisition
Management and Policy (DASAMP) shall be the official to comply with the
requirements of FAR 33.104(g).
[71 FR 76502, Dec. 20, 2006]
[[Page 64]]
Subpart 333.2_Disputes and Appeals
Sec. 333.203 Applicability.
(c) The Secretary has designated the Armed Services Board of
Contract Appeals (ASBCA) as the authorized ``Board'' to hear and
determine disputes for the Department.
[71 FR 76503, Dec. 20, 2006]
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-General Law Division (OGC-GLD), for
advice as to the legal sufficiency and format before sending the final
decision to the contractor. The contracting officer shall provide OGC-
GLD with the pertinent documents with the submission of each proposed
final decision.
(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-GLD with the supplement to the
contract file which supports the recommended correction or amendment.
[71 FR 76503, Dec. 20, 2006]
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) The Office of General Counsel-General Law Division (OGC-GLD) 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 shall be responsible for providing Government
witnesses and specified physical and documentary evidence to the Trial
Attorney. The Trial Attorney shall ensure the presence of all witnesses
and documentary evidence at both the 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
[[Page 65]]
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-GLD.
[71 FR 76503, Dec. 20, 2006]
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)
in accordance with the procedures under Rule 4. The Government Trial
Attorney for this case is
(Insert General Law Division, Office of General Counsel, Department of
Health and Human Services, 330 Independence Avenue, SW., Washington, DC
20201).
The request for payment of charges resulting from the processing of this
appeal 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
[66 FR 4249, Jan. 17, 2001, as amended at 71 FR 76503, Dec. 20, 2006]
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.
Sec. 333.215-70 Additional contract clause.
Use the clause at 352.333-7001, Choice of Law (Overseas), in
solicitations and contracts when contract performance will be outside
the United States, its possessions, and Puerto Rico, except as otherwise
provided for in a government-to-government agreement.
[70 FR 40, Jan. 3, 2005]
[[Page 66]]
SUBCHAPTER F_SPECIAL CATEGORIES OF CONTRACTING
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 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 appropriate, use the following guidelines to
determine the amount of cost participation by the contractor:
(a) The amount of cost participation should depend on the extent to
which the research effort or results are likely
[[Page 67]]
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.
[66 FR 4251, Jan. 17, 2001, as amended at 71 FR 76504, Dec. 20, 2006]
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).
PART 339_ACQUISITION OF INFORMATION TECHNOLOGY
Sec.
Sec. 339.201-10 Clarification.
Sec. 339.201-70 Required provision and contract clause.
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
Source: 71 FR 76504, Dec. 20, 2006, unless otherwise noted.
[[Page 68]]
Sec. 339.201-10 Clarification.
FAR Subpart 39.2, Electronic and Information Technology, requires
Federal agencies to ensure that, when acquiring EIT, Federal employees
with disabilities and members of the public with disabilities have
access to and use of information and data that is comparable to
individuals without disabilities. This EIT access requirement does not
apply to a contractor's internal workplaces. EIT that is not used nor
accessed by Federal employees or members of the public is not subject to
the Architectural and Transportation Barriers Compliance Board (Access
Board) standards. Contractors in their professional capacity are not
members of the public for purposes of Section 508.
Sec. 339.201-70 Required provision and contract clause.
When acquiring EIT, the Contracting Officer shall insert the
provision at 352.270-19(a) in solicitations and the clause in 352.270-
19(b) in contracts and orders for projects that will develop, purchase,
maintain, or use electronic and information technology (EIT), unless
these EIT products and/or services are incidental to the project. (Note:
Other exceptions to this requirement can be found at FAR 39.204.)
[[Page 69]]
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. 342.7100 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.
(a) The Director, Division of Cost Allocation of the Program Support
Center, within each 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.
(b) The Division of Financial Advisory Services of the National
Institutes of Health has the authority to establish indirect cost rates,
fringe benefit rates, etc., for use in contracts and grants awarded to
commercial organizations.
[71 FR 76504, Dec. 20, 2006]
Subpart 342.70_Contract Monitoring
Sec. 342.7001 Purpose.
Contract monitoring is an essential element of contract
administration and is performed jointly by the Project Officer and the
Contracting Officer. This subpart describes the Department's operating
concepts.
[71 FR 76504, Dec. 20, 2006]
Sec. 342.7002 Contract monitoring responsibilities.
(a) The contract establishes the obligations of both the Government
and the contractor. The Contracting Officer is the only person
authorized to make changes to the contract. The Contracting Officer must
confirm all changes in writing.
(b) The Contracting Officer is responsible for assuring compliance
with all the terms and conditions of the contract. The Contracting
Officer shall inform the contractor by letter (if not already stipulated
in the contract) of the authorities and responsibilities of the
Government personnel involved with the contract.
(c) The Contracting Officer 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 these individuals understand and
carry out their assigned responsibilities. The individual roles and
corresponding responsibilities typically involve, but are not limited
to, the following:
(1) The role of program and technical personnel in monitoring the
contract is to assist and/or advise the Contracting Officer or act as
his/her representative when so designated by the Contracting Officer.
Activities may include:
(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;
[[Page 70]]
(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. Program officials must provide the Contracting Officer a
written request along with an appropriate justification and a funding
document if additional funds are needed;
(iv) Reviewing invoices/vouchers and recommending approval/
disapproval 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 monitoring the contract
includes the applicable activities set forth in paragraph (c)(1) of this
section. The Project Officer also shall do the following:
(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 or designee will provide the contractor with written
notification of approval or disapproval and include a copy in the
contract file;
(ii) Monitor the technical aspects of the contract, 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;
(iii) Immediately notify the head of the program office whenever it
is determined that objectives are not being met and provide specific
recommendations of actions to be taken. The Contracting Officer shall
receive a copy of the Project Officer's report and recommendations;
(iv) Within 120 days after contract completion, submit a final
written 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 visual inspections.
(3) The roles of the contract administrator, auditor, cost analyst,
and property administrator are to assist and/or advise 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.
(d) The Contracting Officer is responsible for assuring that
contractor performance and contract monitoring conform with contract
terms. 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
[[Page 71]]
action being taken by the Contracting Officer.
[71 FR 76504, Dec. 20, 2006]
Sec. 342.7003 Withholding of contract payments.
Sec. 342.7003-1 Policy.
(a) All solicitations and resultant contracts (other than awards
made using simplified acquisition procedures) 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. Use the excusable delays clause at 352.249-14 when the
solicitation and resultant contract (other than purchase orders) does
not contain a default or other excusable delays clause.
(b) When appropriate, the Contracting Officer may withhold any
contract payment when a required report is overdue, or the contractor
fails to perform or deliver required work or services.
[71 FR 76505, Dec. 20, 2006]
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 terms of the contract.
Compliance with the reporting terms includes those reports to be
submitted directly to the payment office. The payment office shall
notify the Contracting Officer promptly when such a report is not
submitted on time.
(b) When the contract contains a termination for default clause, the
contractor's failure to submit any report, perform services, or deliver
work when required by the contract is considered a default in
performance. The Contracting Officer shall immediately issue a formal
ten-day cure notice pursuant to FAR 49.607. The notice shall include a
statement to the effect that payments will be withheld if the default is
not cured within the time frame specified in the notice or if the
default is not determined to be excusable.
(1) If the default is cured or is determined to be excusable, the
Contracting Officer shall not initiate the withholding action.
(2) If the default is not determined to be excusable or a response
is not received within the allotted time, the Contracting Officer shall
initiate withholding action on all contract payments and shall determine
whether termination for default or other action would be in the best
interest of the Government.
(c) When the contract does not contain a termination for default
clause, the contractor's failure to submit any required report, perform
services, or deliver work when required by the contract shall be
considered a failure to perform. The Contracting Officer shall
immediately issue a written notice to the contractor specifying the
failure and providing a ten-day period (or longer period if the
Contracting Officer deems it necessary) in which the contractor shall
cure the failure or provide reasons for an excusable delay. The notice
shall include a statement to the effect that payments will be withheld
if the default is not cured within the time specified in the notice or
if the default is not determined to be excusable.
(1) If the failure is cured or is determined to be excusable, the
Contracting Officer shall not initiate the withholding action.
(2) If the failure is not determined to be excusable or a response
is not received within the allotted time, the Contracting Officer shall
initiate withholding action on all contract payments and shall determine
whether termination for 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.
[71 FR 76505, Dec. 20, 2006]
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,
[[Page 72]]
the Contracting Officer shall immediately notify the servicing finance
office in writing of the determination to withhold payments. The notice
of suspension shall contain all information necessary for the finance
office to identify the contract, i.e., contract number, task/delivery
order number, contractor name and address, etc.
(b) The Contracting Officer shall immediately notify the contractor
in writing that payments have been suspended until the default or
failure is cured.
(c) When the contractor cures the default or failure, the
Contracting Officer shall immediately notify, in writing, all recipients
of the notice of 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.
[71 FR 76505, Dec. 20, 2006]
Subpart 342.71_Administrative Actions for Cost Overruns
Sec. 342.7100 Scope of subpart.
This subpart sets forth the procedures to follow when a cost overrun
is anticipated. A cost overrun occurs when the allowable actual cost of
performing a cost-reimbursement type contract exceeds the total
estimated cost specified in the contract.
[71 FR 76506, Dec. 20, 2006]
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 shall 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;
(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
continue and additional funds be provided, or the contract terminated.
An appropriate written statement and funding authority, or a formal
request for termination, must support the decision of the program
office. After receiving the decision by the program office, the
Contracting Officer shall promptly notify the contractor in writing of
the following:
[[Page 73]]
(i) The specified amount of additional funds allotted to the
contract; or
(ii) Work will be discontinued when the allotted funds are
exhausted, and any work performed after that date is at the contractor's
risk; or
(iii) The Government is considering whether to allot additional
funds to the contract and will notify the contractor as soon as
possible, but that any work performed after the currently allotted funds
are exhausted is at the contractor's risk. Timely, formal notification
of the Government's intention is essential 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.
[66 FR 4252, Jan. 17, 2001, as amended at 71 FR 76506, Dec. 20, 2006]
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 74]]
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. 352.232-75 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.
Sec. 352.270-10 Anti-lobbying.
Sec. 352.270-11 Privacy Act.
Sec. 352.270-12 Pro-Children Act.
Sec. 352.270-13 Tobacco-free facilities.
Sec. 352.270-14 Restriction on use of human subjects.
Sec. 352.270-15 Salary rate limitation.
Sec. 352.270-16 Native American Graves Protection and Repatriation Act.
Sec. 352.270-17 Crime Control Act--Reporting of child abuse.
Sec. 352.270-18 Crime Control Act--Requirement for background checks.
Sec. 352.270-19 Electronic information and technology accessibility.
Sec. 352.333-7001 Choice of Law (Overseas).
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, use the FAR Definitions clause at 52.202-1
as modified:
Definitions (JAN 2006)
(a) In accordance with 52.202-1(a)(1), substitute the following as
paragraph (a):
``(a) The term ``Secretary'' or ``Head of the Agency'' (also called
``Agency Head'') means the Secretary, Deputy Secretary, or any Assistant
Secretary, Administrator or Commissioner of the Department of Health and
Human Services; and the term ``his/her duly authorized representative''
means any person, persons, or board authorized to act for the
Secretary.''
(b) In accordance with 52.202-1(a)(1), add the following paragraph
(h):
``(h) The term ``Project Officer'' means the person who monitors the
technical aspects of contract performance. The Project Officer is not
authorized to issue any instructions or directions which cause any
increase or decrease in the scope of work which would result in the
increase or decrease in the price of this contract, or changes in the
delivery schedule or period of performance of this contract. If
applicable, the Project Officer is not authorized to receive or act upon
any notification or revised cost estimate provided by the Contractor in
accordance with the Limitation of Cost or Limitation of Funds clauses of
this contract.''
[71 FR 76506, Dec. 20, 2006]
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
statements, specifying the particular portions of the proposal which are
to be restricted: ``Unless disclosure is required by the Freedom of
Information Act, 5 U.S.C. 552, as amended, (the Act) as determined by
Freedom of Information (FOI) officials of the Department of Health and
Human Services, data contained in the portions of this proposal which
have been specifically identified by page number,
[[Page 75]]
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 the right to use or disclose the data to the extent provided in the
contract. Proposals not resulting in a contract remain subject to the
Act.
The offeror also agrees that the Government is not liable for
disclosure or use of unmarked data and may use or disclose the data for
any purpose, including the release of the information pursuant to
requests under the Act. The data subject to this restriction are
contained in pages (insert page numbers, paragraph designations, etc. or
other identification).''
(2) In addition, the offeror must mark each page of data it wishes
to restrict with the following statement:
``Use or disclosure of data contained on this page is subject to the
restriction on the cover sheet of this proposal or quotation.''
(3) Offerors are cautioned that proposals submitted with restrictive
statements or statements differing in substance from those cited above
may not be considered for award. The Government reserves the right to
reject any proposal submitted with nonconforming statement(s).
[71 FR 76506, Dec. 20, 2006]
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 (JAN 2006)
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 appears to offer the best value 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)
[71 FR 76506, Dec. 20, 2006]
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 (JAN 2006)
(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 36 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)
[66 FR 4255, Jan. 17, 2001, as amended at 71 FR 76506, Dec. 20, 2006]
Sec. 352.223-70 Safety and health.
The following clause shall be used as prescribed in 323.7002:
Safety and Health (JAN 2006)
(a) To help ensure the protection of the life and health of all
persons, and to help prevent damage to property, the Contractor shall
comply with all Federal, State and local laws and regulations applicable
to the work being performed under this contract. These laws are
implemented and/or enforced by the Environmental Protection Agency,
Occupational Safety and Health Administration and
[[Page 76]]
other agencies at the Federal, State and local levels (Federal, State
and local regulatory/enforcement agencies).
(1) In addition, the following regulations must be followed when
developing and implementing health and safety operating procedures and
practices for both personnel and facilities involving the use or
handling of hazardous materials and the conduct of research,
development, or test projects:
(i) 29 CFR 1910.1030, Bloodborne pathogens; 29 CFR 1910.1450,
Occupational exposure to hazardous chemicals in laboratories; and other
applicable occupational health and safety standards issued by the
Occupational Health and Safety Administration (OSHA) and included in 29
CFR Part 1910. These regulations are available at http://www.osha.gov/
comp-links.html.
(ii) Nuclear Regulatory Commission Standards and Regulations,
pursuant to the Energy Reorganization Act of 1974 (42 U.S.C. 5801 et
seq.). Copies may be obtained from the U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001.
(2) The following guidelines are recommended for use in developing
and implementing health and safety operating procedures and practices
for both personnel and facilities:
(i) Biosafety in Microbiological and Biomedical Laboratories, CDC
and NIH, HHS. This publication is available at http://bmbl.od.nih.gov/
index.htm.
(ii) Prudent Practices for Safety in Laboratories (1995), National
Research Council, National Academy Press, 500 Fifth Street, NW., Lockbox
285, Washington, DC 20055 (ISBN 0-309-05229-7). This publication can be
obtained by telephoning 800-624-8373. It also is available at http://
www.nap.edu/catalog/4911.html.
(b) Further, the Contractor shall take or cause to be taken
additional safety measures as the Contracting Officer, in conjunction
with the 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)
[71 FR 76507, Dec. 20, 2006]
Sec. 352.224-70 Confidentiality of information.
The following clause covers the policy set forth in subpart 324.70
and is used in accordance with the instructions set forth in 324.7004.
Confidentiality of Information (JAN 2006)
(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) 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.
(c) 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
[[Page 77]]
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.
(d) Confidential information, as defined in paragraph (a) of this
clause, shall not be disclosed without the prior written consent of the
individual, institution, or organization.
(e) 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 obtain a written
determination from the Contracting Officer prior to any release,
disclosure, dissemination, or publication.
(f) Contracting Officer determinations will reflect the result of
internal coordination with appropriate program and legal officials.
(g) The provisions of paragraph (d) of this clause shall not apply
to conflicting or overlapping provisions in other Federal, State, or
local laws.
(End of clause)
[71 FR 76507, Dec. 20, 2006]
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 judgments, or settlements
approved in writing by the Government, but in no event to exceed the
funds available under the Limitation of Cost or Limitation of Funds
clause of this contract. Nothing in this contract shall be construed as
implying that, at a later date, the Government will request, or the
Congress will appropriate, funds sufficient to meet any deficiencies.
(e) The 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.
[[Page 78]]
(f) The provisions of paragraph (e) of this clause shall not
restrict the right of the Contractor to be reimbursed for the cost of
insurance maintained by the Contractor in connection with the
performance of this contract, other than insurance required in
accordance with this clause; provided, that such cost is allowable under
the Allowable Cost and Payment clause of this contract.
(g) If any suit or action is filed or any claim is made against the
Contractor, the cost and expense of which may be reimbursable to the
Contractor under this contract, and the risk of which is then uninsured
or is insured for less than the amount claimed, the Contractor shall:
(1) Immediately notify the Contracting Officer and promptly furnish
copies of all pertinent papers received;
(2) Authorize Government representatives to collaborate with counsel
for the insurance carrier in settling or defending the claim when the
amount of the liability claimed exceeds the amount of coverage; and
(3) Authorize Government representatives to settle or defend the
claim and to represent the Contractor in or to take charge of any
litigation, if required by the Government, when the liability is not
insured or covered by the bond. The Contractor may, at its own expense,
be associated with the Government representatives in any such claim or
litigation.
(End of clause)
Alternate I (APR 1984). If the successful offeror represents in 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)
[66 FR 4255, Jan. 17, 2001, as amended at 71 FR 76507, Dec. 20, 2006]
Sec. 352.232-9 Withholding of contract payments.
Insert the following clause in all solicitations and contracts other
than awards made using simplified acquisition procedures:
Withholding of Contract Payments (JAN 2006)
Notwithstanding any other payment provisions of this contract,
failure of the Contractor to submit required reports when due or failure
to perform or deliver required work, supplies, or services, may result
in the withholding of payments under this contract unless such failure
arises out of causes beyond the control, and without the fault or
negligence of the Contractor as defined by the clause entitled
``Excusable Delays'' or ``Default'', as applicable. The Government shall
immediately notify the Contractor of its intention to withhold payment
of any invoice or voucher submitted.
[[Page 79]]
(End of clause)
[71 FR 76507, Dec. 20, 2006]
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 2006)
(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, as specified in FAR 52.232-22. 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. The Government intends to allot additional funds up to and
including the full estimated cost of the contract for the remaining
years of performance by contract modification. However, the Government
is not obligated to reimburse the Contractor for costs incurred in
excess of the periodic allotments nor is the Contractor obligated to
perform in excess of the amount allotted.
(b) The Limitation of Funds clause to be included in the resultant
contract, as specified in FAR 52.232-22, shall supersede the Limitation
of Cost clause found in the Section I, Contract Clauses.
(End of provision)
[71 FR 76508, Dec. 20, 2006]
Sec. 352.233-70 Litigation and claims.
Insert the following clause in all solicitations and resultant cost-
reimbursement contracts:
Litigation and Claims (JAN 2006)
The Contractor shall provide written notification immediately to the
Contracting Officer of any action, including any proceeding before an
administrative agency, filed against the Contractor arising out of the
performance of this contract, including, but not limited to the
performance of any subcontract hereunder; and any claim against the
Contractor the cost and expense of which is allowable under the clause
entitled ``Allowable Cost and Payment.'' 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)
[71 FR 76508, Dec. 20, 2006]
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,
[[Page 80]]
other than awards made using simplified acquisition procedures:
Excusable Delays (JAN 2006)
(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: (1) The supplies or services to be
furnished by the subcontractor were obtainable from other sources, (2)
the Contracting Officer ordered the Contractor in writing to procure
such supplies or services from such other sources, and (3) the
Contractor failed to comply with such order. Upon request of the
Contractor, the Contracting Officer shall ascertain the facts and extent
of such failure and if the Contracting Officer determines that any
failure to perform was caused by circumstances beyond the control and
without the fault or negligence of the Contractor, the delivery schedule
shall be revised accordingly, subject to the rights of the Government
under the termination clause contained in this contract. (As used in
this clause, the terms ``subcontractor'' and ``subcontractors'' mean
subcontractor(s) at any tier.)
(End of clause)
[71 FR 76508, Dec. 20, 2006]
Sec. 352.270-1 Accessibility of meetings, conferences, and seminars to
persons with disabilities.
Use the following clause 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).
[[Page 81]]
(2) The Contractor shall provide, at no additional cost to the
individual, those services required by persons with sensory impairments
to insure their complete participation in the meeting, conference, or
seminar.
(3) At a minimum, when requested in advance, the Contractor shall
provide the following services:
(i) For persons with hearing impairments, qualified interpreters.
Also, the meeting rooms 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)
[66 FR 4255, Jan. 17, 2001, as amended at 71 FR 76508, Dec. 20, 2006]
Sec. 352.270-2 Indian preference.
Use the following clause 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.
[[Page 82]]
(g) In the event of noncompliance with this clause, the Contracting
Officer may terminate the contract in whole or in part or may impose any
other sanctions authorized by law or by other provisions of the
contract.
(End of clause)
[66 FR 4255, Jan. 17, 2001, as amended at 71 FR 76508, Dec. 20, 2006]
Sec. 352.270-3 Indian preference program.
Use the following clause as prescribed in 370.202(b):
Indian Preference Program (JAN 2006)
(a) In addition to the requirements of the clause of this contract
entitled ``Indian Preference,'' the Contractor agrees to establish and
conduct an Indian preference program which will expand opportunities for
Indians to receive preference for employment and training in connection
with the work to be performed under this contract, and which will expand
the opportunities for Indian organizations and Indian-owned economic
enterprises to receive a preference in the awarding of subcontracts. In
this connection, the Contractor shall:
(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: (i) A clear description of the supplies or services required,
including quantities, specifications, and delivery schedules which
facilitate the participation of Indian firms; (ii) A statement
indicating that preference will be given to Indian organizations and
Indian-owned economic enterprises in accordance with section 7(b) of
Public Law 93-638 (88 Stat. 2205; 25 U.S.C. 450e(b)); (iii) Definitions
for the terms ``Indian organization'' and ``Indian-owned economic
enterprise'' as prescribed under the ``Indian Preference'' clause of
this contract; (iv) A statement to be completed by the bidder or offeror
that it is an Indian organization or Indian-owned economic enterprise;
and (v) A closing date for receipt of bids or proposals which provides
sufficient time for preparation and submission of a bid or proposal. If
after soliciting bids or proposals from Indian organizations and Indian-
owned economic enterprises, no responsive bid or acceptable proposal is
received, the Contractor shall comply with the requirements of paragraph
(d) of the ``Indian Preference'' clause of this contract. If one or more
responsible bids or acceptable proposals are received, award shall be
made to the low responsible bidder or acceptable offeror if the price is
determined to be reasonable. If the low responsive bid or acceptable
proposal is determined to be unreasonable as to price, the Contractor
shall attempt to negotiate a reasonable price and award a subcontract.
If a reasonable price cannot be agreed upon, the Contractor shall comply
with the requirements of paragraph (d) of the ``Indian Preference''
clause of this contract.
(5) Maintain written records under this contract which indicate: (i)
The numbers of Indians seeking employment for each employment position
available under this contract; (ii) The number and types of positions
filled by Indians and non-Indians; (iii) The
[[Page 83]]
total number of Indians employed under this contract; (iv) For those
positions where there are both Indian and non-Indian applicants, and a
non-Indian is selected for employment, the reason(s) why the Indian
applicant was not selected; (v) Actions taken to give preference to
Indian organizations and Indian-owned economic enterprises for
subcontracting opportunities which exist under this contract; (vi)
Reasons why preference was not given to Indian firms as subcontractors
or suppliers for each requirement where it was determined by the
Contractor that such preference would not be consistent with the
efficient performance of the contract; and (vii) The number of Indian
organizations and Indian-owned economic enterprises contacted, and the
number receiving subcontract awards under this contract.
(6) Submit to the Contracting Officer for approval a quarterly
report which summarizes the Contractor's Indian preference program and
indicates the number and types of available positions filled by Indians
and non-Indians, and the dollar amounts of all subcontracts awarded to
Indian organizations and Indian-owned economic enterprises, and to all
other firms.
(7) Maintain records pursuant to this clause and keep them available
for review by the Government for one year after final payment under this
contract, or for such longer period as may be required by any other
clause of this contract or by applicable law or regulation.
(b) For purposes of this clause, the following definitions of terms
shall apply:
(1) The terms ``Indian,'' ``Indian Tribe,'' ``Indian Organization,''
and ``Indian-owned economic enterprise'' are defined in the clause of
this contract entitled ``Indian Preference.''
(2) ``Indian reservation'' includes Indian reservations, public
domain Indian Allotments, former Indian reservations in Oklahoma, and
land held by incorporated Native groups, regional corporations, and
village corporations under the provisions of the Alaska Native Claims
Settlement Act (85 Stat. 688; 43 U.S.C. 1601 et seq.)
(3) ``On or near an Indian Reservation'' means on a reservation or
reservations or within that area surrounding an Indian reservation(s)
where a person seeking employment could reasonably be expected to
commute to and from in the course of a work day.
(c) Nothing in the requirements of this clause shall be interpreted
to preclude Indian Tribes from independently developing and enforcing
their own Indian preference requirements. Such requirements must not
conflict with any Federal statutory or regulatory requirement dealing
with the award and administration of contracts.
(d) The Contractor agrees to include the provisions of this clause,
including this paragraph (d), in each subcontract awarded at any tier
under this contract and to notify the Contracting Officer of such
subcontracts.
(e) In the event of noncompliance with this clause, the Contracting
Officer may terminate the contract in whole or in part or may impose any
other sanctions authorized by law or by other provisions of the
contract.
(End of clause)
[71 FR 76508, Dec. 20, 2006]
Sec. 352.270-4 Pricing of adjustments.
Insert the following clause in all solicitations and resultant
fixed-priced contracts other than awards made using simplified
acquisition procedures.
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 (performing
research and development
contracts only.
(e) Subpart 31.7 of the Federal Other nonprofit
Acquisition Regulation. institutions.
------------------------------------------------------------------------
(End of clause)
[66 FR 4255, Jan. 17, 2001, as amended at 71 FR 76509, Dec. 20, 2006]
Sec. 352.270-5 Key personnel.
Insert the following clause in all solicitations and resultant
contracts which require Key Personnel, regardless of the type of
contract.
Key Personnel (JAN 2006)
The key personnel specified in this contract are considered to be
essential to work performance. At least 30 days prior to diverting any
of the specified individuals to other programs or contracts (or as soon
as possible, if an individual must be replaced, for example, as a result
of leaving the employ of the Contractor), the Contractor shall notify
[[Page 84]]
the Contracting Officer and shall submit comprehensive justification for
the diversion or replacement request (including proposed substitutions
for key personnel) to permit evaluation by the Government of the impact
on performance under this contract. The Contractor shall not divert or
otherwise replace any key personnel without the written consent of the
Contracting Officer. The Government may modify the contract to add or
delete key personnel at the request of the contractor or Government.
(End of clause)
[71 FR 76509, Dec. 20, 2006]
Sec. 352.270-6 Publications and publicity.
Insert the following clause in all solicitations and resultant
contracts.
Publications and Publicity (JAN 2006)
(a) Unless otherwise specified in this contract and the
Confidentiality of Information clause is included, 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 views expressed in written conference materials or
publications and by speakers and moderators at HHS-sponsored
conferences, do not necessarily reflect the official policies of the
Department of Health and Human Services; nor does mention of trade
names, commercial practices, or organizations imply endorsement by the
U.S. Government.''
(c) Unless authorized by the Project Officer, the contractor shall
not display the HHS logo on any conference materials or publications.
(End of clause)
[71 FR 76510, Dec. 20, 2006]
Sec. 352.270-7 Paperwork Reduction Act.
Insert the following clause in all solicitations and contracts
subject to the Paperwork Reduction Act requirements regarding the
collection and recording of information from 10 or more persons other
than Federal employees.
Paperwork Reduction Act (JAN 2006)
(a) This contract involves a requirement to collect or record
information calling either for answers to identical questions from 10 or
more persons other than Federal employees, or information from Federal
employees which is outside the scope of their employment, for use by the
Federal government or disclosure to third parties; therefore, the
Paperwork Reduction Act of 1995 (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 not expend any funds or begin any data
collection until OMB Clearance is received. Once OMB Clearance is
received from the Project Officer, the Contracting Officer shall provide
the Contractor with written notification authorizing the expenditure of
funds and the collection of data. The Contractor must allow at least 120
days for OMB clearance. Excessive delays caused by the Government which
arise 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)
[71 FR 76510, Dec. 20, 2006]
Sec. 352.270-8 Protection of human subjects.
(a) Include the following provision in solicitations expected to
involve human subjects:
Notice to Offerors of Requirements of 45 CFR Part 46, Protection of
Human Subjects (JAN 2006)
(a) Copies of the Department of Health and Human Services (HHS)
regulations for the protection of human subjects, 45 CFR part 46, are
available from the Office for Human Research Protections (OHRP),
Bethesda, Maryland 20892. The regulations provide a systematic means,
based on established ethical principles, to safeguard the rights and
welfare of individuals who participate as subjects in research
activities supported or conducted by HHS.
[[Page 85]]
(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 OPDIV 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
OHRP, (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 OHRP an acceptable
Assurance of Compliance with the regulations, specifying review
procedures and assigning responsibilities for the protection of human
subjects. The initial and continuing review of a research project by an
institutional review board shall 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. HHS regulations for the protection of human subjects
(45 CFR part 46), information regarding OHRP registration and assurance
requirements/processes, and OHRP contact information can be accessed at
the OHRP Web site: http://www.hhs.gov/ohrp/.
(f) It is recommended that OHRP be consulted for advice or guidance
concerning either regulatory requirements or ethical issues pertaining
to research involving human subjects.
(End of provision)
(b) Include the following clause in solicitations and resultant
contracts involving human subjects:
Protection of Human Subjects (JAN 2006)
(a) The Contractor agrees that the rights and welfare of human
subjects involved in research under this contract shall be protected in
accordance with 45 CFR part 46 and with the Contractor's current
Assurance of Compliance on file with the Office for Human Research
Protections (OHRP), Office of Public Health and Science (OPHS). The
Contractor further agrees to provide certification at least annually
that the Institutional Review Board has reviewed and approved the
procedures, which involve human subjects in accordance with 45 CFR part
46 and the Assurance of Compliance.
(b) The Contractor shall bear full responsibility for the
performance of all work and services involving the use of human subjects
under this contract and shall ensure that work is conducted in a proper
manner and as safely as is feasible. The parties hereto agree that the
Contractor retains the right to control and direct the performance of
all 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 judgment or otherwise,
as an independent contractor without imputing liability on the part of
the Government for the acts of the Contractor or its employees.
(c) If at any time during the performance of this contract, the
Contracting Officer determines, in consultation with the OHRP, OPHS,
ASH, 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 OHRP, OPHS, ASH, 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)
[71 FR 76510, Dec. 20, 2006]
[[Page 86]]
Sec. 352.270-9 Care of laboratory animals.
(a) Include the following provision in solicitations expected to
involve vertebrate animals:
Notice to Offerors of Requirement for Compliance With the Public Health
Service Policy on Humane Care and Use of Laboratory Animals (JAN 2006)
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 of Laboratory
Animal Welfare (OLAW), 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 OLAW approves the Animal Welfare Assurance.
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 OLAW negotiate an acceptable Animal Welfare Assurance with
those Contractor(s). For further information, contact OLAW at NIH,
Bethesda, Maryland 20892 (301-496-7163).
(End of provision)
(b) Include the following clause in all solicitations and resultant
contracts involving research on vertebrate animals:
Care of Live Vertebrate Animals (JAN 2006)
(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 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 2.1 through 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 of
Laboratory Animal Welfare (OLAW), 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 OLAW, NIH, terminate this contract in
whole or in part, and the Contractor's name may be removed from the list
of those contractors with approved PHS Animal Welfare Assurances.
Note: The Contractor may request registration of its facility and a
current listing of licensed dealers from the Regional Office of the
Animal and Plant Health Inspection Service (APHIS), USDA, for the region
in which its research facility is located. The location of the
appropriate APHIS Regional Office, as well as information concerning
this program may be obtained by contacting the Animal Care Staff, USDA/
APHIS, 4700 River Road, Riverdale, Maryland 20737.
(End of clause)
[71 FR 76511, Dec. 20, 2006]
Sec. 352.270-10 Anti-lobbying.
Insert the following clause in all solicitations and resultant
contracts expected to exceed $100,000:
Anti-Lobbying (JAN 2006)
Pursuant to the current HHS annual appropriations act, except for
normal and recognized executive-legislative relationships, the
Contractor shall not use any HHS contract funds for (i) publicity or
propaganda
[[Page 87]]
purposes; (ii) the preparation, distribution, or use of any kit,
pamphlet, booklet, publication, radio, television or video presentation
designed to support or defeat legislation pending before the Congress or
any State legislature, except in presentation to the Congress or any
State legislature itself; or (iii) payment of salary or expenses of the
Contractor, or any agent acting for the Contractor, related to any
activity designed to influence legislation or appropriations pending
before the Congress or any State legislature.
(End of clause)
[71 FR 76511, Dec. 20, 2006]
Sec. 352.270-11 Privacy Act.
The following clause shall be used as prescribed in 324.103(a):
Privacy Act (JAN 2006)
This contract requires the Contractor to perform one or more of the
following: (a) Design; (b) develop; or (c) operate a Federal agency
system of records to accomplish an agency function in accordance with
the Privacy Act of 1974 (Act) (5 U.S.C. 552a(m)(1)) and applicable
agency regulations. The term ``system of records'' means a group of any
records under the control of any agency from which information is
retrieved by the name of the individual or by some identifying number,
symbol, or other identifying particular assigned to the individual.
Violations of the Act by the Contractor and/or its employees may
result in the imposition of criminal penalties (5 U.S.C. 552a(i)). The
Contractor shall ensure that each of its employees knows the prescribed
rules of conduct and that each employee is aware that he/she is subject
to criminal penalties for violation of the Act to the same extent as HHS
employees. These provisions also apply to all subcontracts awarded under
this contract which require the design, development or operation of the
designated system(s) of records (5 U.S.C. 552a(m)(1)).
The contract work statement: (a) identifies the system(s) of records
and the design, development, or operation work to be performed by the
Contractor; and (b) specifies the disposition to be made of such records
upon completion of contract performance.
(End of clause)
[71 FR 76511, Dec. 20, 2006]
Sec. 352.270-12 Pro-Children Act.
Insert the following clause in all solicitations and resultant
contracts and orders, regardless of dollar amount, for (i) kindergarten,
elementary, or secondary education or library services or (ii) health or
day care services that are provided to children under the age of 18 on a
routine or regular basis pursuant to the Pro-Children Act of 1994:
Pro-Children Act of 1994 (JAN 2006)
Public Law 103-227, Title X, Part C, also known as the Pro-Children
Act of 1994 (Act), 20 U.S.C. 7183, imposes restrictions on smoking in
facilities where certain federally funded children's services are
provided. The Act prohibits smoking within any indoor facility (or
portion thereof), whether owned, leased, or contracted for, that is used
for the routine or regular provision of (i) kindergarten, elementary, or
secondary education or library services or (ii) health or day care
services that are provided to children under the age of 18. The
statutory prohibition also applies to indoor facilities that are
constructed, operated, or maintained with Federal funds.
By acceptance of this contract or order, the Contractor agrees to
comply with the requirements of the Act. The Act also applies to all
subcontracts awarded under this contract for the specified children's
services. Accordingly, the Contractor shall ensure that each of its
employees, and any subcontractor staff, is made aware of, understand,
and comply with the provisions of the Act.
Failure to comply with the Act may result in the imposition of a
civil monetary penalty in an amount not to exceed $1,000 for each
violation and/or the imposition of an administrative compliance order on
the responsible entity. Each day a violation continues constitutes a
separate violation.
(End of clause)
[71 FR 76511, Dec. 20, 2006]
Sec. 352.270-13 Tobacco-free facilities.
Insert the following clause in all new solicitations and resultant
contracts and orders (including construction) and all modifications
resulting from the exercise of an option under a contract or order,
regardless of dollar value, where some or all of the Contractor's
performance, will take place on HHS properties. This clause is not
required to be included if contract or order performance requires only
that Contractor staff attend occasional meetings on HHS properties. In
this case, Contractor employees are considered ``visitors.'' Further,
for any proposed or existing construction contract or order, the
Contracting Officer should coordinate any exceptions to the policy
[[Page 88]]
raised by an incumbent or potential Contractor based on union or
collective bargaining agreements with the designated OPDIV tobacco-free
policy contact point for final disposition.
Tobacco-Free Facilities (JAN 2006)
In accordance with Department of Health and Human Services (HHS)
policy, the Contractor and its staff are prohibited from using tobacco
products of any kind (e.g., cigarettes, cigars, pipes, and smokeless
tobacco) while on any HHS property, including use in personal or company
vehicles operated by Contractor employees while on an HHS property. This
policy also applies to all subcontracts awarded under the contract or
order.
The term ``HHS properties'' includes all properties owned,
controlled and/or leased by HHS when totally occupied by HHS, including
all indoor and outdoor areas of such properties. Where HHS only
partially occupies such properties, it includes all HHS-occupied
interior space. Where HHS leases space in a multi-occupant building or
complex, the tobacco-free HHS policy will apply to the maximum area
permitted by law and compliance with the provisions of any current lease
agreements.
The Contractor shall ensure that each of its employees, and any
subcontractor staff, is made aware of, understand, and comply with this
policy.
(End of clause)
[71 FR 76511, Dec. 20, 2006]
Sec. 352.270-14 Restriction on use of human subjects.
If the Contractor has an approved Federal-wide assurance of
compliance in place, but the certification that the Institutional Review
Board (IRB) designated under the assurance has reviewed and approved the
research cannot be completed prior to contract award because definite
plans for involvement of human subjects are not set forth in the
proposal (e.g., projects in which human subjects' involvement will
depend upon completion of instruments, prior animal studies, or
purification of compounds), the award may be made without the requisite
certification as long as the contract is appropriately conditioned.
Under these conditions, insert the following clause in applicable
contracts:
Restriction on Use of Human Subjects (JAN 2006)
Pursuant to 45 CFR part 46, Protection of Human Research Subjects,
the Contractor shall not expend funds under this award for research
involving human subjects or engage in any human subjects research
activity prior to the receipt by the Contracting Officer of a
certification that the research has been reviewed and approved by the
Institutional Review Board (IRB) designated under the Contractor's
Federal-wide assurance of compliance. This restriction applies to all
collaborating sites, whether domestic or foreign, and subcontractors.
The Contractor must ensure compliance by collaborators and
subcontractors.
(End of clause)
[71 FR 76511, Dec. 20, 2006]
Sec. 352.270-15 Salary rate limitation.
Insert the following clause in all new NIH, SAMHSA, and AHRQ
solicitations and resultant contracts and orders (except fixed-price
completion contracts) and modifications of existing contracts for
projects that support extramural activities. Projects that support
extramural activities include extramural R&D, SAMHSA's mission-related
requirements, and those activities commonly referred to as ``extramural
R&D support.''
OR
Insert the following clause in all new NIH, SAMHSA, and AHRQ
solicitations and resultant contracts (except fixed-price completion
contracts) and modifications of existing contracts for extramural R&D
and SAMHSA's mission-related requirements. Projects that are not
considered R&D but that support extramural R&D activities (commonly
referred to as ``extramural R&D support'') are OR are not included.
Salary Rate Limitation (JAN 2006)
Pursuant to the applicable HHS appropriations acts cited in the
table below, the Contractor shall not use contract funds to pay the
direct salary of an individual at a rate in excess of the salary level
in effect on the date the expense is incurred as shown in the table
below.
For purposes of the salary limitation, the terms ``direct salary,''
``salary,'' and ``institutional base salary'' have the same meaning and
are collectively referred to as ``direct salary'' in this clause. An
individual's direct salary is the annual compensation that the
[[Page 89]]
Contractor pays for an individual's appointment whether that
individual's time is spent on research, teaching, patient care, or other
activities. Direct salary excludes any income that an individual may be
permitted to earn outside of duties to the Contractor. Direct salary
also excludes fringe benefits, overhead, and general and administrative
expenses (also referred to as indirect costs or facilities and
administrative [F&A] costs).
The salary rate limitation also applies to individuals performing
under subcontracts. However, it does not apply to fees paid to
consultants. If this is a multiple-year contract, it may be subject to
unilateral modification by the Contracting Officer to ensure that an
individual is not paid at a rate that exceeds the salary rate limitation
provision established in the HHS appropriations act in effect when the
expense is incurred regardless of the rate initially used to establish
contract funding.
------------------------------------------------------------------------
Salary
limitation
Public law Period covered (based on
Executive
Level I)
------------------------------------------------------------------------
108-447, Div F, Title II, General 10/01/05--12/31/05.... $180,100
Provisions, Section 204.
109-149, General Provisions, 01/01/06--until $183,500
Section 204. revised.
------------------------------------------------------------------------
Executive Level salaries for the current and prior periods can be
found at the following Web site: http://www.opm.gov/oca/05tables/html/
ex.asp. Click on ``Salaries and Wages'' and then scroll to the bottom of
the page to select the desired period.
(End of clause)
[71 FR 76511, Dec. 20, 2006]
Sec. 352.270-16 Native American Graves Protection and Repatriation Act.
Insert the following clause in any solicitation and resultant
contract or order that requires performance on tribal lands and all
solicitations and resultant contracts or orders for construction on
Federal or tribal lands, regardless of dollar amount:
Native American Graves Protection and Repatriation Act (JAN 2006)
Public Law 101-601, dated November 16, 1990, also known as the
Native American Graves Protection and Repatriation Act (Act), imposes
certain responsibilities on individuals and organizations when they
discover Native American cultural items (including human remains) on
Federal or tribal lands.
In the event the Contractor discovers Native American cultural items
(including human remains, associated funerary objects, unassociated
funerary objects, sacred objects and cultural patrimony), as defined in
the Act during contract performance, the Contractor shall: (i)
Immediately cease activity in the area of the discovery; (ii) notify the
Contracting Officer of the discovery; and (iii) make a reasonable effort
to protect the items discovered before resuming such activity. Upon
receipt of the Contractor's discovery notice, the Contracting Officer
will notify the appropriate authorities as required by the Act.
Unless otherwise specified by the Contracting Officer, the
Contractor may resume activity in the area on the 31st calendar day
following the date that the appropriate authorities certify receipt of
the discovery notice. The date that the appropriate authorities certify
receipt of the discovery notice and the date on which the Contractor may
resume activities shall be provided to the Contractor by the Contracting
Officer.
(End of clause)
[71 FR 76511, Dec. 20, 2006]
Sec. 352.270-17 Crime Control Act--Reporting of child abuse.
Insert the following clause in all solicitations and resultant
contracts and orders, regardless of dollar amount, where performance
will take place on Federal land or in a federally-operated (or
contracted) facility and that involve the professions/activities
performed by persons specified in the Crime Control Act of 1990,
including, but not limited to, physicians, nurses, dentists, health care
practitioners, optometrists, psychologists, emergency medical
technicians, alcohol or drug treatment personnel, child care workers and
administrators, emergency medical technicians and ambulance drivers:
[[Page 90]]
Crime Control Act of 1990--Reporting of Child Abuse (JAN 2006)
Public Law 101-647, also known as the Crime Control Act of 1990
(Act), imposes responsibilities on certain individuals who, while
engaged in a professional capacity or activity, as defined in the Act,
on Federal land or in a federally-operated (or contracted) facility,
learn of facts that give the individual reason to suspect that a child
has suffered an incident of child abuse.
The Act designates ``covered professionals'' as those persons
engaged in professions and activities in eight different categories
including, but not limited to, physicians, dentists, medical residents
or interns, hospital personnel and administrators, nurses, health care
practitioners, chiropractors, osteopaths, pharmacists, optometrists,
podiatrists, emergency medical technicians, ambulance drivers, alcohol
or drug treatment personnel, psychologists, psychiatrists, mental health
professionals, child care workers and administrators, and commercial
film and photo processors. The Act defines the term ``child abuse'' as
the physical or mental injury, sexual abuse or exploitation, or
negligent treatment of a child.
Accordingly, any person engaged in a covered profession or activity
under an HHS contract or subcontract, regardless of the purpose of the
contract or subcontract, shall immediately report a suspected child
abuse incident in accordance with the provisions of the Act. If a child
is suspected of being harmed, the appropriate State Child Abuse Hotline,
local child protective services (CPS), or law enforcement agency should
be contacted. For more information about where and how to file a report,
the Childhelp USA[reg], National Child Abuse Hotline (1-800-
4-A-CHILD[supreg]) should be called. Any covered professional failing to
make a timely report of such incident shall be guilty of a Class B
misdemeanor.
By acceptance of this contract or order, the Contractor agrees to
comply with the requirements of the Act. The Act also applies to all
applicable subcontracts awarded under this contract. Accordingly, the
Contractor shall ensure that each of its employees, and any
subcontractor staff, is made aware of, understand, and comply with the
provisions of the Act.
(End of clause)
[71 FR 76511, Dec. 20, 2006]
Sec. 352.270-18 Crime Control Act--Requirement for background checks.
Insert the following clause in all solicitations and resultant
contracts and orders, regardless of dollar amount, for all child care
services to children under the age of 18, including social services,
health and mental health care, child (day) care, education (whether or
not directly involved in teaching), and rehabilitative programs covered
under the Crime Control Act of 1990 (Act):
Crime Control Act of 1990--Requirement for Background Checks (JAN 2006)
Public Law 101-647, also known as the Crime Control Act of 1990
(Act), requires that all individuals involved with the provision of
child care services to children under the age of 18 undergo a criminal
background check. ``Child care services'' include, but are not limited
to, social services, health and mental health care, child (day) care,
education (whether or not directly involved in teaching), and
rehabilitative programs. Any conviction for a sex crime, an offense
involving a child victim, or a drug felony, may be grounds for denying
employment or for dismissal of an employee providing any of the services
listed above.
The Contracting Officer will provide the necessary information to
the Contractor regarding the process for obtaining the background check.
The Contractor may hire a staff person provisionally prior to the
completion of a background check, if at all times prior to the receipt
of the background check during which children are in the care of the
newly-hired person, the person is within the sight and under the
supervision of a previously investigated staff person.
By acceptance of this contract or order, the Contractor agrees to
comply with the requirements of the Act. The Act also applies to all
applicable subcontracts awarded under this contract. Accordingly, the
Contractor shall ensure that each of its employees, and any
subcontractor staff, is made aware of, understand, and comply with the
provisions of the Act.
(End of clause)
[71 FR 76511, Dec. 20, 2006]
Sec. 352.270-19 Electronic information and technology accessibility.
(a) The following clause shall be used in solicitations as provided
in 339.201-70:
Electronic and Information Technology Accessibility (JAN 2006)
Section 508 of the Rehabilitation Act of 1973 (29 U.S.C. 794d), as
amended by Public Law 105-220 under Title IV (Rehabilitation Act
Amendments of 1998) and the Architectural and Transportation Barriers
Compliance Board Electronic and Information (EIT) Accessibility
Standards (36 CFR part 1194),
[[Page 91]]
require that all EIT acquired must ensure that:
(1) Federal employees with disabilities have access to and use of
information and data that is comparable to the access and use by Federal
employees who are not individuals with disabilities; and
(2) Members of the public with disabilities seeking information or
services from an agency have access to and use of information and data
that is comparable to the access to and use of information and data by
members of the public who are not individuals with disabilities.
This requirement includes the development, procurement, maintenance,
and/or use of EIT products/services; therefore, any proposal submitted
in response to this solicitation must demonstrate compliance with the
established EIT Accessibility Standards. Information about Section 508
is available at http://www.section508.gov/.
(End of provision)
(b) The following clause shall be used in contracts and orders as
provided in 339.201-70:
Electronic and Information Technology Accessibility (JAN 2006)
Pursuant to Section 508 of the Rehabilitation Act of 1973 (29 U.S.C.
794d) as amended by Public Law 105-220 under Title IV (Rehabilitation
Act Amendments of 1998), all Electronic and Information Technology (EIT)
developed, procured, maintained, and/or used under this contract shall
be in compliance with the ``Electronic and Information Technology
Accessibility Standards'' set forth by the Architectural and
Transportation Barriers Compliance Board (also referred to as the
``Access Board'') in 36 CFR part 1194. The complete text of Section 508
Final Standards can be accessed at http://www.access-board.gov/sec508/
standards.htm.
The standards applicable to this requirement are [identified in the
Statement of Work/listed below]:
(Select the appropriate phrase within the brackets [ ] and complete if
necessary and identify location of/provide complete list of applicable
provisions. Use the Buy accessible wizard at http://
www.buyaccessible.gov if necessary or contact your Section 508
Coordinator)
Vendors may document conformance using [attached documentation/
industry-standard Voluntary Product Accessibility Template at http://
www.itic.org/archives/articles/20040506/
faq--voluntary--product--accessibility--
template--vpat.php] (select the appropriate phrase within the brackets [
]). Vendors should provide detailed information necessary for
determining compliance, including defined contractor-incidental
exceptions.
(End of clause)
[71 FR 76511, Dec. 20, 2006]
Sec. 352.333-7001 Choice of Law (Overseas).
As prescribed in 333.215-70, use the following clause:
Choice of Law (Overseas)
This contract shall be construed and interpreted in accordance with
the substantive laws of the United States of America. By the execution
of this contract, the contractor expressly agrees to waive any rights to
invoke the jurisdiction of local national courts where this contract is
performed and agrees to accept the exclusive jurisdiction of the United
States Armed Services Board of Contract Appeals and the United States
Court of Federal Claims for hearing and determination of any and all
disputes that may arise under the Disputes clause of this contract.
[70 FR 41, Jan. 3, 2005]
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 92]]
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 OPDIV or other designated
organization responsible for ensuring compliance with the Architectural
Barriers Act of 1968 and the Americans with Disabilities Act of 1990 to
ensure that the contractor's plan meets the accessibility requirements
of the contract clause. The Project Officer shall ask the responsible
organization to review, and determine the adequacy of, the contractor's
plan, and respond to the Project Officer, in writing, within ten (10)
working days of receiving the request from the Project Officer.
[71 FR 76514, Dec. 20, 2006]
[[Page 93]]
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 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
[[Page 94]]
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
General 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.
[66 FR 4262, Jan. 17, 2001, as amended at 71 FR 76514, Dec. 20, 2006]
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
(HHS) 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 HHS regulations at 45 CFR 46.103. An
applicable Federalwide Assurance (FWA), approved by the HHS Office of
Human Research Protections (OHRP), shall be required of each contractor,
subcontractor, or cooperating institution having responsibility for
human subjects involved in performance of the contract. The HHS OHRP is
responsible for negotiating assurances covering all HHS-supported or
HHS-conducted activities involving human subjects. OHRP shall guide
Contracting Officers regarding nonaward or termination of a contract due
to inadequate
[[Page 95]]
assurance or breach of assurance for protection of human subjects.
[71 FR 76514, Dec. 20, 2006]
Sec. 370.302 Types of assurances.
(a) In January 2005, OHRP announced that the FWA would be the only
new type of assurance accepted for review and approval by OHRP.
Institutions holding an OHRP-approved Multiple Project Assurance (MPA)
or Cooperative Project Assurance (CPA) were required to submit an FWA to
OHRP for approval by December 31, 2005, if the institution is required
to have an OHRP-approved assurance of compliance. Any Inter-
Institutional Amendment between an OHRP-approved MPA and an affiliate
institution will be deactivated on January 1, 2006 if the affiliate
institution has not obtained its own FWA. Single Project Assurances
(SPAs) currently approved by OHRP will remain in effect for the duration
of the project and through all non-competitive award renewals. An FWA
listed in OHRP's current ``List of Registered Institutional Review
Boards (IRBs)/Independent Ethics Committees (IECs) and Approved
Assurances'' is acceptable for the purposes of this policy. The list may
be found at http://ohrp.cit.nih.gov/search/asearch.asp.
(b) The OHRP Web site includes links to instructions and the forms
for submitting both a domestic and international FWA at http://
www.hhs.gov/ohrp/assurances/assurances--index.html. To expedite the
approval of a FWA, as well as any update/renewal, the institution shall
use the OHRP Electronic Submission System. Once an electronic file is
``submitted'' to OHRP, the institution must fax or mail (do not do both)
a copy of the signature page to initiate the review process. FWAs shall
be mailed to the OHRP, U.S. Department of Health and Human Services,
1101 Wootton Parkway, Suite 200, Rockville, Maryland 20852, or faxed to
OHRP at 240-453-8202 (do not do both).
[71 FR 76514, Dec. 20, 2006]
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
OHRP-approved FWA should be certified in the manner required by
instructions for completion of the contract proposal; or by completion
of an OMB Form No. 0990-0263, ``Protection of Human Subjects Assurance
Identification/IRB Certification/Declaration of Exemption (Common Rule);
or by letter indicating the institution's OHRP-assigned FWA number, the
date of IRB review and approval, and the type of review (convened or
expedited). The date of IRB approval must not be more than 12 months
prior to the deadline for proposal submission.
(c) FWAs 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 FWA 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.
[71 FR 76515, Dec. 20, 2006]
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).