Proposed Rule: Acquisition Regulations

Friday,
May 26, 2006
Part III
Department of
Health and Human
Services
Office of the Secretary
48 CFR Chapter 3
Acquisition Regulations; Proposed Rule
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30520 Federal Register / Vol. 71, No. 102 / Friday, May 26, 2006 / Proposed Rules
DEPARTMENT OF HEALTH AND to the Federal Acquisition Regulation PART 301—HHS ACQUISITION
HUMAN SERVICES (FAR). REGULATION SYSTEM
• Clarifying authorities for selecting
Office of the Secretary and terminating Contracting Officers. 3. Revise paragraph (b) of section
• Establishing minimum training 301.101 to read as follows:
48 CFR Chapter 3 requirements for certain positions. 301.101 Purpose.
• Specifically referencing regulations
Acquisition Regulations of other Federal agencies. * * * * *
• Updating the text of clauses (b) The HHSAR implements FAR
AGENCY: Department of Health and required to be inserted in solicitations policies and procedures and provides
Human Services (HHS). and contracts. additional policies and procedures that
ACTION: Proposed rule with request for supplement the FAR to satisfy the needs
comments. B. Regulatory Flexibility Act of HHS.
The Department of Health and Human * * * * *
SUMMARY: The Department of Health and
Service certifies this rulemaking will 4. Amend section 301.270 by revising
Human Services proposes to amend its not have a significant economic effect paragraphs (c) and (d) to read as follows:
acquisition regulations (HHSAR) to on a substantial number of small entities
make administrative and editorial under the Regulatory Flexibility Act (5 301.270 Executive Committee for
changes to reflect organizational title U.S.C. 601 et seq.) because it does not Acquisition.
changes resulting from Office of the impose any new requirements. * * * * *
Secretary (OS) and Operating Division Therefore, no regulatory flexibility (c) The purposes of the ECA are to:
(OPDIV) reorganizations and to update statement has been prepared. Since this (1) Advise and assist the Chair on
or remove outdated text and references. rule conveys existing acquisition major acquisition policy matters;
The intent of the proposal is to bring the policies or procedures and does not (2) Review and evaluate the overall
HHSAR up to date and to make the promulgate any new policies or effectiveness of existing policies and
HHSAR consistent with the latest procedures that would impact the procedures and the impact of new
amendments to the Federal Acquisition public, it has been determined that this acquisition policies, procedures, and
Regulations (FAR). rule will not have a significant regulations on current acquisition
DATES: Comments must be received by economic effect on a substantial number policies and procedures.
July 25, 2006. of small entities, and, thus, a regulatory (d) The Chair will periodically issue
ADDRESSES: You may submit comments flexibility analysis was not performed. a list of current members and alternates,
by either of the following methods: E- including each person’s name, title,
C. Paperwork Reduction Act organization, address, telephone
mail: Katherine.Hughes@hhs.gov or by
mail to: Katherine Hughes, HHS, The Paperwork Reduction Act does number, and e-mail address. ECA
Division of Acquisition Policy, Office of not apply because the changes to the members are responsible for apprising
Acquisition Management and Policy, HHSAR do not impose any record the Chair of any changes to the list.
200 Independence Ave., SW., Room keeping or information collection 5. Revise section 301.403 to read as
336E, Washington, DC 20201. Please requirements that require approval by follows:
state ‘‘48 CFR 3’’ on the subject line. the Office of Management and Budget
301.403 Individual deviations.
FOR FURTHER INFORMATION CONTACT: under 44 U.S.C. 3501, et seq. Existing
approvals cited in 48 CFR 301.106 Requests for individual deviations to
Katherine Hughes, Office of Acquisition either the FAR or HHSAR shall be
Management and Policy, telephone remain in effect. The provisions of this
regulation are issued under 5 U.S.C. prepared in accordance with 301.470
(202) 690–7079, e-mail: and forwarded to the Deputy Assistant
Katherine.Hughes@hhs.gov. 301; 40 U.S.C. 486 (c).
Secretary for Acquisition Management
SUPPLEMENTARY INFORMATION: List of Subjects in 48 CFR Chapter 3 and Policy (DASAMP).
Government procurement. 6. Revise section 301.404 to read as
A. Background follows:
Under the authority of 5 U.S.C. 301;
The Department emphasizes that it is
40 U.S.C. 486(c), the Department of 301.404 Class deviations.
not proposing significant amendments
Health and Human Services proposes to Requests for class deviations to either
to the existing HHSAR. The
amend 48 CFR Chapter 3 as set forth the FAR or HHSAR shall be prepared in
amendments being proposed to the
below. accordance with 301.470 and forwarded
HHSAR concern internal procedural
matters which are administrative in Dated: May 16, 2006. to the Director, Office of Acquisition
nature, and would not have a major Joe W. Ellis, Management and Policy.
effect on the general public or on Assistant Secretary for Administration and 7. Amend section 301.470 by revising
contractors or offerors supporting the Management. paragraph (a) to read as follows:
Department. The majority of the 301.470 Procedure.
amendments address the following: CHAPTER 3—HEALTH AND HUMAN
• HHS organizational title changes SERVICES (a) Deviation requests shall be
resulting from agency reorganizations. prepared in memorandum form and
1. The authority citation for 48 CFR forwarded through the Head of the
• Eliminating procedural guidance no chapter 3, parts 301–370 continues to
longer deemed necessary. Contracting Activity (HCA) to the
read as follows: Deputy Assistant Secretary for
• Changing contracting review and
approval authorities to situate them at Authority: 5 U.S.C. 301; 40 U.S.C. 486(c). Acquisition Management and Policy. A
levels more appropriate to 2. 48 CFR chapter 3 is amended by deviation may be requested verbally in
simplification, streamlining, and removing ‘‘Office of Acquisition an exigency situation; however, the
empowerment. Management’’ and adding ‘‘Division of request must be confirmed in writing as
• Updating the HHSAR to bring it in Acquisition Policy (DAP)’’ in its place soon as possible.
line with the latest amendments made each time it appears. * * * * *
Federal Register / Vol. 71, No. 102 / Friday, May 26, 2006 / Proposed Rules 30521
8. Amend section 301.602–3 by the GS–1102 series, as well as personnel action that will result in the total
revising paragraphs (b)(3), (e)(1), and in any other series who will obligate the amount of the contract exceeding their
(e)(2) to read as follows: Government to the expenditure of funds delegated warrant authority (as
in excess of the micro-purchase specified on the SF–1402). This
301.602–3 Ratification of unauthorized threshold, shall be the Standard Form includes Indefinite Delivery Indefinite
commitments.
(SF) 1402, ‘‘Certificate of Appointment,’’ Quantity (IDIQ) contracts. However,
* * * * * and shall indicate the Contracting orders issued against IDIQ contracts are
(b) * * * Officer’s warrant level and threshold processed differently. Once an IDIQ
(3) Ratification authority for actions and any other limitations. Appointing contract is awarded by a Contracting
up to $100,000 may be redelegated by officials shall ensure that individuals Officer with the appropriate authority,
the HCA to the chief of the contracting delegated warrant authority meet the orders against the contract may be
office (CCO). No other redelegations are requirements stipulated in the HHS issued by other Contracting Officers/
authorized. Acquisition Workforce Training and Contract Specialists up to their
* * * * * Certification Handbook (herein referred delegated warrant authority, assuming
(e) Procedures. (1) The individual to as ‘‘Handbook’’), are certified in that each order is separate and distinct
who made the unauthorized contractual accordance with Chapter 4 of the (that is, not a follow-on of another
commitment shall furnish the reviewing Handbook, and meet the skills currency order) from each other.
Contracting Officer all records and training and other specific OPDIV (e) Employees delegated warrant
documents concerning the commitment standards that may apply. (The authority are the only individuals
and a complete written statement of Handbook is located at the following legally authorized to bind the
facts, including, why the contracting Web site: http://www.knownet.hhs.gov/ Government by executing contracts or
office was not used, why the proposed acquisition/Cert_Training_Program/ signing determinations and findings
contractor was selected, other sources toc.htm). The HCA may determine an required by the FAR. The amount
considered, a description of the alternate appointment document for specified on the warrant should cover
requirement, the estimated or agreed appointments at or below the the estimated maximum contract
price, funds citation, and whether the micropurchase threshold level. amount, including all option periods.
contractor has commenced work. Contracting Officer warrants will be For example, an employee with a
(2) The Contracting Officer will issued to civil service personnel only. A $500,000 Contracting Officer Certificate
review the submitted material and delegation of procurement authority of Appointment may not award a
prepare it for ratification following a shall be set forth in a memorandum that contract for a base year of $300,000 if
determination that the commitment is describes the spending limits and the contract includes a one-year option
ratifiable. The Contracting Officer shall authority. Changes to appointments for an additional $300,000. In this case,
forward the ratification document and shall be made by issuing a new the total contract amount, including
the submitted material to the HCA or appointment document. Each options, exceeds the amount stipulated
CCO with any comments or information appointment document shall be in the warrant. If a warrant is limited to
which should be considered in prepared and maintained in accordance $500,000 (for example), the holder may
evaluation of the request for ratification. with FAR 1.603–1 and shall state the not sign a contract for more than that
If legal review is desirable, the HCA or limits of the individual’s authority. amount, even if the additional amount
CCO will coordinate the request for (c) An individual must be certified at is subject to the availability of funds.
ratification with the Office of General the appropriate level (see Chapter 4 of Contracting Officers with higher warrant
Counsel, Business and Administrative the Handbook at the following Web site: levels may sign the action when
Law Division. http://www.knownet.hhs.gov/ modifications to orders and contracts
* * * * * acquisition/Cert_Training_Program/ make the total amount of the contract
9. Revise sections 301.603 and chap4.htm) as a prerequisite to being exceed the Contracting Officer’s warrant
301.603–1 to read as follows: appointed as a Contracting Officer with limitation.
301.603 Selection, appointment, and authority to obligate funds in excess of 10. Revise section 301.603–2 to read
termination of appointment of Contracting the micro-purchase threshold. The HCA as follows:
Officers/Contract Specialists. will determine and require training for
individuals appointed as Contracting 301.603–2 Selection of Contracting
301.603–1 General. Officers/Contract Specialists at dollar Officers/Contract Specialists.
(a) The appointment, selection, and levels below the micropurchase When it has been determined that the
termination of appointment of threshold. Individuals selected for appointment is in the best interest of the
Contracting Officers/Contract Contracting Officer warrant authority OPDIV and/or Department and there is
Specialists shall be made by the HCA. must meet the education, training, and a demonstrated need for the
This authority is not delegable. The experience requirements that are procurement authority requested,
procedures for the selection and established for the warrant level. An nominations for appointment of
appointment of Contracting Officers/ individual shall be appointed as a Contracting Officers/Contract
Contract Specialists shall apply to Contracting Officer only in instances Specialists shall be submitted to the
anyone seeking the authority for a where a valid organizational need is HCA through appropriate organizational
Contracting Officer warrant. For those demonstrated. Factors to be considered channels for review. The HCA is
OPDIVs that have Contracting Officers/ in assessing the need for an responsible for appointing Contracting
Contract Specialists with dual signature appointment of a Contracting Officer Officers/Contract Specialists in
warrants within some of the offices, the include volume of actions, complexity accordance with FAR 1.603. This
appointment and termination of of work, and structure of the authority is not delegable. The
Contracting Officers/Contract organization. nomination package, which typically is
Specialists is done in accordance with (d) Contracting Officers/Contract initiated by the prospective Contracting
OPDIV procedures. Specialists (GS–1102s) are prohibited Officer’s immediate supervisor, shall
(b) The Contracting Officer from signing actions, including include the information listed in the
appointment document for personnel in modifications, options, or any other following Web site: http://
www.knownet.hhs.gov/acquisition/ 301.603–4 Termination or revocation of a 301.603–74 Training policy exception.

Cert_Training_Program/chap3.htm Contracting Officer’s appointment.
In the event there is an urgent
(click on ‘‘Selection, Appointment, and Termination or revocation of requirement for a Contracting Officer/
Termination of Contracting Officers’’). Contracting Officer appointments shall Contract Specialist to award or
Additional information about be accomplished in accordance with administer an IT contract, and the
appointment procedures is listed in the FAR 1.603–4. Earned Value training requirement has
Web site mentioned above. The HCA 13. Revise section 301.603–70 to read not been met, the HCA (not delegable)
will determine the documentation as follows: may waive the training requirement and
required, consistent with FAR 1.603–2, authorize the individual to perform the
when the resulting appointment and 301.603–70 Delegation of Contracting
job duties, provided that the individual
Officer responsibilities.
authority will not exceed the attends the next scheduled ‘‘Early
micropurchase threshold. (a) Contracting Officer responsibilities Warning Project Management System
which do not involve the obligation or Workshop’’ course, or an equivalent
11. Revise section 301.603–3 to read
deobligation of funds or result in Earned Value course.
as follows:
establishing or modifying contractual
provisions may be delegated by the 301.603–75 Training requirement for
301.603–3 Appointment of Contracting
Contracting Officer by means of a purchase cardholders, Approving Officials
Officers.
(AOs), and Agency/Organization Program
written memorandum that clearly
(a) Appointing officials must ensure Coordinators (A/OPCs).
delineates the delegation and its limits.
that a warrant candidate meets the Training requirements for purchase
(b) Contracting Officers may designate
experience, education/training cardholders, AOs and A/OPCs are found
individuals as ordering officials to make
requirements listed in Chapter 4 entitled purchases or place orders under blanket in Chapter 4 of the Handbook at the
‘‘Training and Certification purchase agreements, indefinite following Web site: http://
Requirements for the HHS Acquisition delivery contracts, or other www.knownet.hhs.gov/acquisition/
Workforce,’’ of the Handbook (available preestablished mechanisms. Ordering Cert_Training_Program/chap4.htm.
at the following Web site: http:// officials, including those under the
www.knownet.hhs.gov/acquisition/ 301.603–76 Requirement for certification
National Institutes of Health’s (NIH) retention and maintaining currency of
Cert_Training_Program/chap4.htm), Delegated Acquisition Program acquisition knowledge and skills for
meets acquisition certification (DELPRO), are not Contracting Officers. Contracting Officers/Contract Specialists
requirements, and meets the skills 14. Add sections 301.603–71 through and purchasing agents.
currency training and other OPDIV/ 301.603–76 to read as follows:
Department standards that may apply. The requirement for certification
301.603–71 Waivers to warrant standards. retention and maintaining currency of
The warrant levels are listed in the
acquisition knowledge and skills is
Handbook at the following Web site: Guidance on waivers to warrant found in Chapter 4 of the Handbook at
http://www.knownet.hhs.gov/ standards are found in Chapter 3 of the the following Web site: http://
acquisition/Cert_Training_Program/ Handbook at the following Web site: www.knownet.hhs.gov/acquisition/
chap3.htm. http://www.knownet.hhs.gov/ Cert_Training_Program/chap4.htm.
(b) If it is essential to appoint an acquisition/Cert_Training_Program/
individual who does not fully meet the chap3.htm (under ‘‘Selection, PART 302—DEFINITIONS OF WORDS
certification requirements for the Appointment and Termination of AND TERMS
Contracting Officer authority sought, an Contracting Officers’’).
interim appointment may be granted by 15. In section 302.101, add a
301.603–72 Training and certification
the HCA. HCAs are responsible for requirements for Contracting Officers/
definition for ‘‘Agency head or head of
ensuring that training requirements are Contract Specialists. the Agency,’’ remove the definition for
‘‘Head of the agency or agency head,’’
met within the specified time frame. Training and certification revise the definition for ‘‘Head of the
Interim appointments may not exceed requirements are found in Chapter 4 of Contracting Activity (HCA),’’ and add a
one (1) year in total, and shall not be the Handbook at the following Web site: definition for ‘‘Project Officer,’’ to read
granted unless the individual can meet http://www.knownet.hhs.gov/ as follows:
the certification requirements within acquisition/Cert_Training_Program/
one (1) year from the date of chap4.htm. 302.101 Definitions.
appointment. The HCA may extend an
301.603–73 Earned value training Agency head or head of the Agency,
interim appointment when he/she
requirement for Contracting Officers/ unless otherwise specified, means the
determines it is appropriate by granting Contract Specialists who administer an IT head of the Operating Division (OPDIV)
additional time to complete the contract. for Agency for Healthcare Research and
requirements of a permanent Quality (AHRQ), Centers for Disease
appointment. The HCA and Contracting All GS–1102s who administer an IT
contract are required to successfully Control and Prevention (CDC), Centers
Officer will discuss the timeframes for for Medicare & Medicaid Services
complete the Department’s (offered
extension of an interim appointment, to (CMS), Food and Drug Administration
through HHS University) one-day
allow completion of the requirements, (FDA), Health Resources and Services
course entitled ‘‘Early Warning Project
and the HCA will make the final Administration (HRSA), Indian Health
Management Systems Workshop,’’ or an
decision. If the certification equivalent Earned Value training Service (IHS), National Institutes of
requirements are not met by that date, course. Determination of course Health (NIH), Substance Abuse and
the appointment will automatically equivalency shall be made jointly by the Mental Health Services (SAMHSA), and
terminate. Office of Acquisition Management and the Deputy Secretary for the Office of
12. Revise section 301.603–4 to read Policy/ASAM and the HHS Office of the the Secretary (OS).
as follows: Chief Information Officer. * * * * *
Head of the contracting activity (HCA) training, and ability commensurate with 19. Revise section 303.405 to read as
occupies designated organization the complexity and magnitude of the follows:
positions as follows: acquisition actions involved. 303.405 Misrepresentations or
ASAM–OS—Deputy Assistant Secretary Project Officer is a Federal employee violations of the Covenant Against
for Acquisition Management and who monitors contractor performance Contingent Fees.
Policy and provides technical guidance to the (a) Reports shall be made promptly to
AHRQ—Director, Division of Contracts Contract Specialist/Contracting Officer. the Contracting Officer.
Management He or she serves as the Contract (b)(4) Suspected fraudulent or
CMS—Director, Office of Acquisition Specialist/Contracting Officer’s criminal matters to be reported to the
and Grants Management authorized representative to monitor Department of Justice shall be prepared
PSC—Director, Division of Acquisition specific aspects of the contract, thereby in letter format and forwarded through
Management ensuring that the contractor’s acquisition channels to the head of the
CDC—Director, Procurement and Grants performance meets the standards set contracting activity for signature. The
Office forth in the contract, the technical letter must contain all pertinent facts
FDA—Director, Office of Acquisitions & requirements under the contract are met and background information considered
Grant Services by the delivery date(s) and/or within the by the Contracting Officer and chief of
HRSA—Director, Division of period of performance, and performance the contracting office that led to the
Procurement Management is accomplished within the price or decision that fraudulent or criminal
IHS—Director, Division of Acquisition estimated cost stated in the contract. A matters may be present. A copy of the
Policy Project Officer is required to comply signed letter shall be sent to the
NIH—Director, Office of Acquisition with HHS Project Management Director, Office of Acquisition
Management and Policy Certification Program training Management and Policy.
SAMHSA—Director, Division of requirements. The term ‘‘Project 20. Revise section 303.704 to read as
Contracts Management Officer’’ is synonymous with follows:
Each HCA is responsible for Contracting Officer’s Representative
conducting an effective and efficient (COR) and Contracting Officer’s 303.704 Policy.
acquisition program. Adequate controls Technical Representative (COTR). (a) For purposes of implementing FAR
shall be established to assure 16. Revise section 302.201 to read as subpart 3.7, the authorities granted to
compliance with applicable laws, follows: the ‘‘agency head or designee’’ shall be
regulations, procedures, and the dictates 302.201 Contract clause. exercised by the HCA (not delegable).
of good management practices. Periodic The FAR clause, Definitions, at
reviews shall be conducted and PART 304—ADMINISTRATIVE
52.202–1 shall be used as prescribed in MATTERS
evaluated by qualified personnel, FAR 2.201, except as follows:
preferably assigned to positions other (a) In accordance with 52.202–1(a)(1), 21. Revise section 304.602 to read as
than in the contracting office being paragraph (a) at 352.202–1 shall be used follows:
reviewed, to determine the extent of in place of paragraph (a) of the FAR
adherence to prescribed policies and clause. 304.602 Federal Procurement Data
regulations, and to detect a need for System—Next Generation (FPDS–NG).
(b) In accordance with 52.202–1(a)(1),
guidance and/or training. The HCA paragraph (h), or its alternate, at The Departmental Contracts
shall be certified, or be certifiable, at 352.202–1 shall be added to the end of Information System (DCIS) represents
Level IV of the HHS Acquisition the FAR clause. Use paragraph (h) when the Department’s implementation of the
Certification Program. Individuals a fixed-priced contract is anticipated; FPDS–NG. All departmental contracting
appointed as HCAs who do not meet the use the alternate to paragraph (h) when activities are required to use the DCIS
Level IV requirements shall have one a cost-reimbursement contract is and follow the procedures stated in the
year from the date of appointment to anticipated. This is an authorized Enhanced Departmental Contracts
obtain Level IV certification. The heads deviation. Information System Manual, available at
of contracting activities may redelegate http://dcis.hhs.gov, and amendments to
their HCA authorities to the extent that PART 303—IMPROPER BUSINESS the manual. The HCA (not delegable)
redelegation is not prohibited by the PRACTICES AND PERSONAL shall ensure that all required contract
terms of their respective delegations of CONFLICTS OF INTEREST information is collected, submitted, and
authority, by law, by the Federal received into the DCIS on or before the
Acquisition Regulation, by the HHS 17. Revise section 303.101–3 to read
15th of each month for all appropriate
Acquisition Regulation, or by other as follows:
contract and contract modifications
regulations. However, HCA and other 303.101–3 Agency regulations. award of the prior month.
contracting approvals and authorities (a)(3) The Department of Health and 22. Amend 304.804–70 by revising
shall not be redelegated below the levels Human Services’ Standards of Conduct paragraphs (a) and (b)(1) to read as
specified in the HHS Acquisition are prescribed in 45 CFR part 73. follows:
Regulation or, in the absence of 18. Revise section 303.303 to read as
coverage in the HHS Acquisition 304.804–70 Contract closeout audits.
follows:
Regulation, the Federal Acquisition (a) Contracting Officers shall rely, to
Regulation. To ensure proper control of 303.303 Reporting suspected antitrust the maximum extent possible, on single
redelegated acquisition authorities, violations. audits to close physically completed
HCAs shall maintain a file containing (h) A copy of the agency report of cost-reimbursement contracts with
successive delegations of HCA authority suspected antitrust violations submitted colleges and universities, hospitals,
through and including the Contracting to the Attorney General by the HCA non-profit firms, and State and local
Officer level. Personnel delegated shall also be submitted to the Director, governments. In addition, where
responsibility for acquisition functions Office of Acquisition Management and appropriate, a sample of these
must possess a level of experience, Policy. contractors may be selected for audit, in
accordance with paragraph (b) of this grantfax@hhs.gov, or faxing to (202) acquisition threshold may be in the
section. 205–2420. form of a paragraph or paragraphs
(b) * * * 25. Revise section 305.502 to read as contained in the requisition or request
(1) The Office of the Inspector General follows: for contract.
(OIG) and ASAM’s Deputy Assistant (ii) Justifications, whether over or
305.502 Authority.
Secretary for Acquisition Management under the simplified acquisition
and Policy in conjunction with the The Contracting Officer is authorized threshold, shall fully describe what is to
OPDIV’s cost advisory/audit focal point, to publish advertisements and notices be acquired, offer reasons which go
determine which contracts or indicating that proposals are being beyond inconvenience, and explain why
contractors will be audited, which audit sought in newspapers and periodicals in it is not feasible to obtain competition.
agency will perform the audit, and the accordance with the requirements and The justifications shall be supported by
type and scope of closeout audit to be conditions referenced in FAR subpart verifiable facts rather than mere
performed. These decisions shall be 5.5. opinions. Documentation in the
based upon the needs of the customer, justification should be sufficient to
PART 306—COMPETITION
risk analysis, return on investment, and permit an individual with technical
REQUIREMENTS
the availability of audit resources. When competence in the area to follow the
an audit is warranted prior to closing a 26. Revise section 306.302–1 to read rationale.
contract, the Contracting Officer shall as follows: (iii) Sole source justifications using
submit the audit request to the OIG’s the Federal Supply Schedule shall
Office of Audit, via the OPDIV’s cost 306.302–1 Only one responsible source include the content listed in FAR 6.303–
and no other supplies or services will 2.
advisory/audit focal point. satisfy agency requirements.
* * * * * (b) Preliminary arrangements or
(a)(2)(iv) Follow-on contracts for the agreements with the proposed
23. Revise paragraph (e) of section continuation of major research and
304.7001 to read as follows: contractor shall have no effect on the
development studies on long-term social rationale used to support an acquisition
304.7001 Numbering acquisitions. and health programs, major research for other than full and open
studies, or clinical trials may be deemed competition.
* * * * *
to be available only from the original 28. Revise section 306.303–2 to read
(e) Assignment of identification codes.
source when it is likely that award to as follows:
Each contracting office of the
any other source would result in
Department shall be assigned a three 306.303–2 Content.
unacceptable delays in fulfilling the
digit identification code by the ASAM/
Department’s or OPDIV’s requirements. (a)(1) Each justification shall include
OAMP. Requests for the assignment of
(b) Application. (5) When the head of the program office and name, address,
codes for newly established contracting
the program office has determined that and telephone number of the Project
offices shall be submitted by a
only specified makes and models of Officer and project identification such
headquarters official from the new
technical equipment or parts must be as the authorizing program legislation,
contracting office to the OAMP. A
obtained to meet the activity’s program to include citations or other internal
listing of the contracting office
responsibility to test and evaluate program identification data such as title,
identification codes currently in use is
certain kinds and types of products, and contract number, etc.
contained in the Enhanced
only one source is available. (This (2) The description may be in the
Departmental Contracts Information
criterion is limited to testing and form of a statement of work, purchase
System Manual, available at http://
evaluation purposes only and may not description, or specification. A
dcis.hhs.gov.
be used for initial outfitting or repetitive statement is to be included to explain
PART 305—PUBLICIZING CONTRACT acquisitions. Project officers should whether the acquisition is an entity in
ACTIONS support the use of this criterion with itself, whether it is one in a series, or
citations from their agency’s legislation part of a related group of acquisitions.
24. Revise section 305.303 to read as and the technical rationale for the item (c) JOFOCs shall be signed by the
follows: of equipment required.) Project Officer, the Project Officer’s
27. Revise section 306.303–1 to read immediate supervisor, the Contracting
305.303 Announcement of contract
as follows: Officer, and the approving official (if the
awards.
approving official is not the Contracting
(a) Public announcement. Any 306.303–1 Requirements.
Officer).
contract, contract modification, or order (a)(1) When a program office desires 29. Revise section 306.304 to read as
in the amount of $3 million or more, not to obtain certain goods or services by follows:
otherwise exempt under FAR 5.303, contract without full and open
shall be reported by the Contracting competition, it shall provide the 306.304 Approval of the justification.
Officer to the Office of the Assistant contracting office a justification (a)(2) The competition advocates are
Secretary for Legislation (Congressional explaining why full and open listed in 306.501. This authority is not
Liaison), Room 406G, Hubert H. competition is not feasible. The delegable.
Humphrey Building. Notification shall justification must be submitted with the (3) The competition advocate shall
be accomplished by providing a copy of requisition or request for contract. exercise this approval authority, except
the contract or award document face (i) Justifications in excess of the where the individual designated as the
page to the referenced office prior to the simplified acquisition threshold shall be competition advocate does not meet the
day of award, or in sufficient time to in the form of a separate, self-contained requirements of FAR 6.304(a)(3)(ii). This
allow for an announcement to be made document, prepared in accordance with authority is not delegable.
by 5 p.m. Washington, DC time on the FAR 6.303 and 306.303, and called a (4) The senior procurement executive
day of award. Notification may also be ‘‘JOFOC’’ (Justification for Other Than of the Department is the Deputy
accomplished by e-mailing a copy of the Full and Open Competition). Assistant Secretary for Acquisition
contract or award document face page to Justifications at or below the simplified Management and Policy. This
designation has been made pursuant to (5) Other information required for 307.170 Program training requirements.
the OFPP Act (41 U.S.C. 414(c)(2)(B). OPDIV needs. (a) HHS will maintain a program for
(c) A class justification shall be (b) Once the AAP is obtained from the certifying employees before they may be
processed the same as an individual program planning/budget office, the considered eligible for appointment as a
justification. Contracting Officer/Contract Specialist program/project manager or COR/COTR.
30. Revise section 306.501 to read as shall initiate discussions with the (b) All HHS program/project
follows: assigned Project Officer for each managers, alternate program/project
306.501 Requirement. planned negotiated acquisition over managers, CORs/COTRs, alternate
The Department’s competition $100,000 except for: CORs/COTRs, and at least fifty percent
advocate is the Deputy Assistant (1) Acquisitions made under of the HHS program personnel
Secretary for Acquisition Management interagency agreements, and performing the function of technical
and Policy. The competition advocates proposal evaluator on a technical
(2) Contract modifications which evaluation team or panel for a
for each of the Department’s OPDIVs are exercise options, make changes
as follows: competitively solicited HHS contract,
authorized by the Changes clause, or shall have successfully completed the
AHRQ—Executive Officer add funds to an incrementally funded
CDC—Director, Office of Program Department’s (offered through HHS
contract. (The HCA may prescribe University) ‘‘Basic Project Officer’’
Support procedures for contract actions not
CMS—Chief Operating Officer course, or an equivalent course, before
covered by this subpart.) assuming the duties of their designated
FDA—Chief, Office of Shared Services
HRSA—Associate Administrator for (c) The purpose of the discussions role, or take the next available class.
Operations and Management between the Contracting and Project This requirement applies to the initial
IHS—Director, Office of Management Officers is to develop an individual technical proposal evaluation and any
and Support acquisition planning schedule and to subsequent technical evaluations that
NIH—Senior Advisor for Policy, Office address areas that will need to be may be required. Course equivalency for
of Extramural Research (R&D) and covered in the request for contract the ‘‘Basic Project Officer’’ course will
Senior Advisor to the Deputy Director (RFC), including clearances, acquisition be determined by the ASAM/OAMP.
for Intramural Research (Other than strategy, sources, etc. The Project Officer The Contracting Officer is responsible
R&D) must either have a statement of work for ensuring that the program/project
OS—Deputy Assistant Secretary for (SOW) ready at this time or must manager, COR/COTR, and proposal
Acquisition Management and Policy discuss in more detail the nature of the evaluators have successfully completed
PSC—Director, Strategic Acquisition services/supplies that will be required. the required training. Non-information
Service (d) Standard lead-times for processing technology (IT) program/project
SAMHSA—Associate Administrator for various types of acquisitions and managers and non-IT CORs/COTRs who
Management deadlines for submission of acceptable have successfully completed the
RFCs (that is, RFCs which include all appropriate ‘‘Basic Project Officer’’
PART 307—ACQUISITION PLANNING course, or an equivalent course, are
required elements such as clearances,
31. Revise section 307.104 to read as funding documents, and an acceptable highly encouraged to take the
follows: SOW) for award in a given fiscal year Department’s one-day course entitled
shall be established by the HCA or ‘‘Early Warning Project Management
307.104 General procedures. designee not lower than the CCO. System Workshop,’’ or an equivalent
(a) Each contracting activity shall Earned Value course. Program/Project
(e) The outcome of the discussions managers and CORs/COTRs are highly
prepare an Annual Acquisition Plan
referenced in paragraph (c) of this encouraged to take the Department’s
(AAP). The AAP is a macro plan,
section between the Project Officer and (offered through HHS University)
containing a list of anticipated contract
the Contracting Officer/Contract ‘‘Writing Statements of Work’’ course, or
actions over the simplified acquisition
Specialist will be an agreement an equivalent course. Peer and objective
threshold and their associated funding,
concerning the dates of significant reviewers are excluded from these
as well as the aggregate planned dollars
transaction-specific acquisition requirements. The peer review process
for simplified acquisitions by quarter,
milestones, including the date of pertains specifically to NIH in the peer
developed for each fiscal year. The AAP
submission of the RFC to the review of applications for grants and
shall conform to reasonable budget
Contracting Officer. This milestone contracts. Applications are evaluated by
expectations and shall be reviewed at
schedule document will be prepared a peer review group composed of
least quarterly and modified as
with those dates and will be signed by scientists from the extramural research
appropriate. The HCA or the CCO shall
the Project Officer and the Contracting community.
obtain this information from the
Officer. The milestones cannot be 33. Revise section 307.170–1 to read
program planning/budget office of the
revised except by mutual agreement of as follows:
contracting activity and use the AAP to
these same individuals. If the planning
provide necessary reports and monitor
schedule indicates the need to obtain 307.170–1 Training policy exceptions.
the workload of the contracting office.
approval of a Justification for Other than In the event there is an urgent
For contract actions, the plan shall
Full and Open Competition, the HCA or requirement for a specific individual to
contain, at a minimum:
CCO must sign the milestone agreement. serve as a program/project manager and
(1) A brief description (descriptive
This document shall be retained in the COR/COTR (or alternate program/
title, perhaps one or two sentences if
contract file. All other considerations project manager and alternate COR/
necessary);
(2) Estimated award amount; that will affect the acquisition COTR) and that individual has not
(3) Requested award date; (technical, business, management) shall successfully completed the prerequisite
(4) Name and phone number of be addressed in the RFC (see 307.71). training course(s), the HCA (not
contact person (usually the Project 32. Revise section 307.170 to read as delegable) may waive the training
Officer); follows: requirement and authorize the
individual to perform the project duties, 307.170–6 Warranting of Other 307.7105 Format and content.
provided that: Transaction Officers for Other The Department is in the process of
Transactions.
(a) The individual first meets with the standardizing a format for the RFC. In
The requirement for the warranting of the interim, the information in
cognizant Contracting Officer to review
Other Transaction Officers for Other paragraph (a) of this section must be
the HHS ‘‘Project Officer’s Contracting
Transactions is found in Section I(H) of included. Paragraph (b) contains
Handbook’’ to discuss the important the HHS Guidebook on Other
aspects of the contracting-program office information that must also be included
Transactions Authority (available at the if applicable.
relationship as appropriate to the following Web site: http://
circumstances; and * * * * *
www.knownet.hhs.gov/acquisition/
(b) The individual attends the next ota.htm). (b) * * *
scheduled ‘‘Basic Project Officer’’ (4) Special program clearances or
course, or an equivalent course, and, for 307.170–7 Training Requirements for approvals. Any required clearance or
Other Transaction Officers. approval. The following special program
those current and proposed IT program/
project managers, as well as alternate IT Training requirements for an Other clearances or approvals should be
program/project managers and IT CORs/ Transaction Officer are listed in Section reviewed for applicability to each
I(F) of the HHS Guidebook on Other acquisition. Those which are applicable
COTRs (as well as alternate CORs/
Transaction Authority (available at the should be addressed during the
COTRs) assigned to HHS IT projects
following Web site: http:// planning discussions between the
(including those designated as major or
www.knownet.hhs.gov/acquisition/ Project Officer and Contracting Officer/
tactical by HHS), the next ‘‘Early
ota.htm). Contract Specialist (see 307.104(c)) and
Warning Project Management System
immediate action should be initiated by
Workshop,’’ or an equivalent Earned 307.170–8 Appointment of an Other the Project Officer to obtain the
Value course. Transaction Officer Technical
necessary clearances or approvals.
Representative for an Other Transaction.
34. Add sections 307.170–3 through Comprehensive checklists of these and
307.170–9 to read as follows: The requirement for the appointment any OPDIV special approvals,
of an Other Transaction Officer clearances, and requirements shall be
307.170–3 Earned value training Technical Representative for an Other provided for reference purposes to
requirement for IT program/project Transaction is found in Section I(I) of
managers and IT CORs/COTRs.
program offices by the servicing
the HHS Guidebook on Other contracting activity. If the approval or
All current and proposed IT program/ Transactions Authority (available at the clearance has been requested and is
project managers, alternate IT program/ following Web site: http:// being processed at the time of RFC
project managers, IT CORs/COTRs, and www.knownet.hhs.gov/acquisition/ submission, a footnote to this effect,
alternate CORs/COTRs assigned to HHS ota.htm). including all pertinent details, must be
IT projects (including those IT projects 307.170–9 Training requirement for an included in this section.
designated as major or tactical), must Other Transaction Officer Technical (i) Commercial activities. (OMB
successfully complete the Department’s Representative. Circular No. A–76). An RFC must
(offered through HHS University) one- The training requirement for an Other contain a statement as to whether the
day course entitled ‘‘Early Warning Transaction Officer Technical proposed solicitation is or is not to be
Project Management System Representative is found in Section I(I) of used as part of an OMB Circular No. A–
Workshop,’’ or an equivalent Earned the HHS Guidebook on Other 76 public-private cost comparison. (See
Value training course. Course Transactions Authority (available at the OMB Circular No. A–76, Performance of
equivalency will be determined jointly following Web site: http:// Commercial Activities.)
by the ASAM/OAMP and the HHS www.knownet.hhs.gov/acquisition/ * * * * *
Office of the Chief Information Officer. ota.htm). (7) Special terms and conditions. Any
suggested special terms and conditions
307.170–4 Required training in HHS’ 307.302, 307.303, 307.304, and 307.307
[Removed] not already covered in the statement of
portfolio management tool.
work.
35. Remove subpart 307.3 (sections
All current and proposed IT program/ * * * * *
307.302, 307.303, 307.304, and
project managers, as well as alternate IT 38. Amend section 307.7106 by
307.307).
program/project managers and IT CORs/ revising paragraphs (a) and (d) to read
36. Revise section 307.7104 to read as
COTRs (as well as alternate IT CORs/ as follows:
follows:
COTRs), must successfully complete
training in HHS’ portfolio management 307.7104 Transmittal. 307.7106 Statement of work.
tool (contact the HHS Office of the Chief The RFC must be conveyed to the (a) General. A statement of work
Information Officer for additional contracting office by use of a cover (SOW) describes the work or services to
information). memorandum. The cover memorandum be performed in reaching an end result
must be signed by the head of the without describing the method that will
307.170–5 Maintenance/refresher training be used unless the method of
requirement for program/project managers
sponsoring program office and include
both a statement attesting to the performance is critical or required in
and CORs/COTRs.
conclusiveness of the review described order to obtain successful performance.
The maintenance/refresher training in 307.7103(b) and a list identifying all The SOW should be clear and concise
requirement for program/project attachments to the RFC. and must completely define the
managers and CORs/COTRs is found in 37. Amend section 307.7105 by responsibilities of both the contractor
Chapter 5 of the Handbook at the revising the introductory text for the and the Government. The SOW should
following Web site: http:// section, the introductory text for be worded to make more than one
www.knownet.hhs.gov/acquisition/ paragraph (b)(4), and paragraphs (b)(4)(i) interpretation virtually impossible.
Cert_Training_Program/chap5.htm. and (b)(7) to read as follows: * * * * *
(d) Elements of the SOW. The documentation generated during the official shall arrange for fact-finding
elements of the SOW will vary with the OAMP review. hearings and take the necessary action
objective, complexity, size, and nature 40. Amend section 309.405 by specified in FAR 9.406–3(b)(2). The
of the acquisition. In general, it should revising paragraph (a)(1) to read as debarring official shall also ensure that
include the following: follows: written findings of facts are prepared,
(1) Purpose of the project. This and shall base the debarment decisions
309.405 Effect of listing.
includes a general description of the on the facts as found, after considering
objectives of the project and the desired (a) * * * information and argument submitted by
(1) If a Contracting Officer considers the contractor and any other
results.
it necessary to award a contract, or information in the administrative
(2) Background information. This
consent to a subcontract with a debarred record. The Office of the General
includes a brief history of the project
or suspended contractor, the Counsel shall represent the Department
and the importance of the project to the
Contracting Officer shall prepare a at any fact-finding hearing and may
overall program objectives.
determination, including all pertinent present witnesses for HHS and question
(3) A detailed description of the
documentation, and submit it through any witnesses presented by the
technical requirements. The statement
acquisition channels to the head of the contractor.
of work should provide sufficient detail
contracting activity. The documentation 42. Revise section 309.407–3 to read
to accurately reflect the Government’s
must include the date by which as follows:
requirement. It should state what is to
approval is required and a compelling
be done without prescribing the method 309.407–3 Procedures.
reason for the proposed action.
to be used and should include
Compelling reasons for award of a (a) Investigation and referral. When
performance standards. The statement
contract or consent to a subcontract an apparent cause for suspension
of work may be broken down into tasks
with a debarred or suspended contractor becomes known, the initiating official
and subtasks. The degree of breakout
include: shall prepare a report containing the
depends on the size and complexity of (i) The property or services to be information required by 309.470–2
the project. The statement of work acquired are available only from the along with a written recommendation
should indicate whether the tasks are listed contractor; or and forward it through appropriate
sequential or concurrent. (ii) The urgency of the requirement channels to the suspending official.
(4) Reference material. All reference dictates that the Department conduct Reports shall be forwarded in
material to be used in the conduct of the business with the listed contractor. accordance with 309.470–1. The
project that indicates how the work is to
* * * * * suspending official shall initiate an
be carried out must be identified.
41. Revise section 309.406–3 to read investigation.
Applicability should be explained, and (b) Decisionmaking process. The
as follows:
a statement made as to where the suspending official shall review the
material can be obtained. 309.406–3 Procedures. results of the investigation, if any, and
(5) Level of effort. When a level of (a) Investigation and referral. When make a written determination whether
effort is required, the number and type an apparent cause for debarment or not suspension should be imposed. A
of personnel required should be stated. becomes known, the initiating official copy of this determination shall be
If known, the type and degree of shall prepare a report containing the promptly sent through appropriate
expertise should be specified. information required by 309.470–2, channels to the initiating official and
(6) Special requirements (as along with a written recommendation, the Contracting Officer. If it is
applicable). An unusual or special and forward it through appropriate determined that suspension shall be
contractual requirement, which would channels to the debarring official. imposed, the suspending official shall
impact on contract performance, should Reports shall be forwarded in consult with the Office of General
be included as a separate section. accordance with 309.470–1. The Counsel and then notify the contractor
(7) Deliverables reporting debarring official, the Deputy Assistant in accordance with FAR 9.407–3(c). If
requirements. All deliverables and/or Secretary for Acquisition Management the action is not based on an
reports must be clearly and completely and Policy, shall initiate an indictment, and, subject to the
described. Include the timeframe for investigation. provisions of FAR 9.407–3(b)(2), the
completion, the format, and the number (b) Decisionmaking process. The contractor’s submission in response to
of copies. debarring official shall review the the notice raises a genuine dispute over
results of the investigation, if any, and facts material to the suspension, the
PART 309—CONTRACTOR make a written determination whether
QUALIFICATIONS suspending official shall, after
or not debarment procedures are to be suspension has been imposed, arrange
39. Revise section 309.404 to read as commenced. A copy of the for fact-finding hearings and take the
follows: determination shall be promptly sent necessary actions specified in FAR
through appropriate channels to the 9.407–3(b)(2).
309.404 List of parties excluded from initiating official and the Contracting 43. Amend section 309.470–1 by
Federal procurement and nonprocurement Officer. If it is determined that revising the introductory text to read as
programs. debarment procedures shall commence, follows:
(c) The Office of Acquisition the debarring official shall consult with
Management and Policy (OAMP) shall the Office of General Counsel and then 309.470–1 Situations where reports are
perform the actions required by FAR notify the contractor in accordance with required.
9.404(c). FAR 9.406–3(c). If the proposed action A report incorporating the

(4) OAMP shall maintain all is not based on a conviction or judgment information required by 309.470–2 shall
documentation submitted by the and the contractor’s submission in be forwarded, in duplicate, by the
initiating official recommending the response to the notice raises a genuine Contracting Officer through acquisition
debarment or suspension action and all dispute over facts material to the channels to OAMP when:
correspondence and other pertinent proposed debarment, the debarring * * * * *
44. Add part 311, Describing Agency supplies, equipment, and services in 315.204–1 Uniform contract format.
Needs, and section 311.003 to read as each of the HWACs: the HHS (a) When preparing solicitations and
follows: Acquisition Integration and resulting contracts, Contracting Officers/
Modernization Web site: http:// Contract Specialists are strongly
PART 311—DESCRIBING AGENCY intranet.hhs.gov/hwac/index.html and encouraged to use as a guide the HHS
NEEDS the HHS Strategic Sourcing Web site: Solicitation/Contract Structure
http://intranet.hhs.gov/ssc/. Document found at http://
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c). www.knownet.hhs.gov/acquisition/
PART 314—SEALED BIDDING policy.htm.
311.003 Defining Electronic Information
Technology (EIT) requirements. 46. Revise section 314.202–7 to read 315.204–5 [Removed]
HHS officials who are defining agency as follows:
52. Remove section 315.204–5.
needs for EIT products and services and
performing market research to meet 314.202–7 Facsimile bids.
315.209 [Amended]
those needs can use the Buy Accessible (c) If the (HCA (not delegable) has
53. Amend section 315.209 by
Wizard (http://www.buyaccessible.gov) determined that the contracting activity
removing paragraph (g).
managed by the General Services will allow use of facsimile bids and 54. Amend section 315.305 by
Administration to document EIT proposals, the HCA shall prescribe revising paragraphs (a)(1), (a)(3)(i)(D),
requirements, identify the applicable internal procedures, in accordance with (a)(3)(ii)(B), the introductory text of
Section 508 standards, and document the FAR, to ensure uniform processing (a)(3)(ii)(E)(1), (a)(3)(ii)(E)(4),
the market research. and control. (a)(3)(ii)(F)(2), and (a)(3)(ii)(F)(3) to read
45. Add part 312, Acquisition of as follows:
314.213 [Removed]
Commercial Items; Subpart 312.1,
Acquisition of Commercial Items— 47. Remove section 314.213. 315.305 Proposal evaluation.
General; and section 312.101 to read as 48. Revise section 314.401–1 to read
(a)(1) Cost or price evaluation. (i) The
follows: as follows:
Contracting Officer shall evaluate
314.404–1 Cancellation of invitations after business proposals in accordance with
PART 312—ACQUISITION OF opening. the requirements set forth in FAR
COMMERCIAL ITEMS 15.404. The extent of cost or price
(c) The HCA or CCO (not delegable)
shall make the determinations required analysis in each case depends on the
Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
to be made by the agency head in FAR contract type, the amount of the
Subpart 312.1—Acquisition of 14.404–1. proposal, the technical complexity, and
Commercial Items—General 49. Revise section 314.407–3 to read related cost or price. The Project Officer
as follows: shall be requested to analyze the
312.101 Policy. following elements, if applicable, to
(a) It is HHS policy to maximize its 314.407–3 Other mistakes disclosed determine if they are necessary and
buying power, reduce acquisition before award. reasonable for efficient contract
administrative costs, and develop long- (e) Authority has been delegated to performance:
term, mutually beneficial, open the Departmental Protest Control (A) The number of labor hours
partnerships with best-in-class Officer, Office of Acquisition proposed for the various labor categories
providers of products and services. Management and Policy, to make and the mix in relation to the technical
Accordingly, HHS has implemented a administrative determinations in requirements;
Strategic Sourcing Program under which connection with mistakes in bid alleged (B) Types, numbers and hours/days of
Indefinite-Delivery/Indefinite-Quantity after opening and before award. This proposed consultants;
contracts (IDIQs) and Blanket Purchase authority may not be redelegated. (C) The kinds and quantities of
Agreements (BPAs), known as HHS- (f) Each proposed determination shall material, equipment, supplies, and
wide Acquisition Contracts (HWACs), have the concurrence of the Chief, services;
are awarded to allow for savings for General Law Division, Office of General (D) Kinds and quantities of
commercial items and services across Counsel. information technology;
HHS and make the acquisition process (i) Doubtful cases shall not be (E) Logic of proposed subcontracting;
more efficient. submitted by the Contracting Officer and
(b) If consideration is being given to directly to the Comptroller General, but, (F) Travel proposed, including
soliciting or acquiring a product or instead, shall be submitted to the number of trips, locations, purpose, and
service from a source, other than HHS Departmental Protest Control Officer. travelers.
Contract Closeout IDIQs or Strategic 50. Amend section 314.407–4 by (ii) The Project Officer shall provide
Sourcing BPAs, when the category of revising paragraph (d) to read as written comments, including the
the current requirement (e.g. Lab follows: rationale for any exceptions to the
Supplies, Events Management) is elements. The Project Officer’s
314.407–4 Mistakes after award. comments shall be used for negotiations
encompassed in the portfolio of existing
IDIQ or BPA categories a waiver request * * * * * or to support award without
must be prepared and approved in (d) Each proposed determination shall discussions. The Contracting Officer
advance of a purchase or processing of have the concurrence of the Chief, should also request assistance of a cost/
a requirement. General Law Division, Office of General price analyst, when necessary. The
(c) The instructions, including Counsel. Contracting Officer’s negotiation

approval requirements, and waiver memorandum must include the
PART 315—CONTRACTING BY rationale used in determining that the
form, are available at http:// NEGOTIATION
intranet2.hhs.gov/hwac/waiver.html. price or cost is fair and reasonable.
The following links provide more 51. Add section 315.204–1 to read as * * * * *
detailed information regarding the follows: (3) Technical evaluation.
(i) * * * (4) When continuity of the evaluation 315.372 Preparation of negotiation

(D) The technical evaluation plan process is not possible, and either new memorandum.
shall be submitted to the Contracting evaluators are selected or the size of the The negotiation memorandum or
Officer for review and approval before evaluation panel is reduced, all summary of negotiations is a complete
the solicitation is issued. The proposals shall be reviewed by each record of all actions leading to award of
Contracting Officer shall make sure that panel member at the current stage of the a contract and is prepared by the
the significant factors and subfactors acquisition (i.e., initial proposal, final Contracting Officer/Contract Specialist
relating to the evaluation are reflected in proposal revisions, etc.). Also, guidance to support the source selection decision
the evaluation criteria when conducting should be provided concerning what to discussed in FAR 15.308. It should be
the review of the plan. do if an unusually large number of in sufficient detail to explain and
(ii) * * * proposals are received, including how support the rationale, judgments, and
(B) Role of the Project Officer. (1) The to determine what constitutes an authorities upon which all actions were
Project Officer is the Contracting unusually large number of proposals. predicated. The memorandum will
Officer’s technical representative for the document the negotiation process and
(F) * * *
acquisition action. The Project Officer reflect the negotiator’s actions, skills,
may be a voting member of the technical (2) Decisions to disclose proposals to
and judgments in concluding a
evaluation panel, and may also serve as evaluators outside of the Government
satisfactory agreement for the
the chairperson of the panel, unless shall be made by the official responsible
Government. The negotiation
prohibited by law or contracting activity for appointing panel members in
memorandum shall address each item
procedures. accordance with operating division
listed below. If an item is not
(2) The Project Officer is responsible procedures. The avoidance of
applicable, it shall be so stated in the
for recommending panel members who organization conflict of interest and memorandum. Information already
are knowledgeable in the technical competitive relationships must be taken contained in the contract file may be
aspects of the acquisition and capable of into consideration when making the referenced rather than reiterated.
identifying strengths and weaknesses in decision to use outside evaluators. (a) Description of articles and services
the proposals received. Government (3) When it is determined to disclose and period of performance. A
employees serving as panel members a solicited proposal outside the description of articles and services,
must be selected in accordance with the Government for evaluation purposes, quantity, unit price, total contract
requirements set forth in 307.170. the following or similar conditions shall amount, and period of contract
(3) The Project Officer shall ensure be included in the written agreement performance should be set forth.
that persons possessing expertise and with evaluator(s) prior to disclosure: * * * * *
experience in addressing issues relative 57. Amend section 315.404–4 by
Conditions for Evaluating Proposals
to sex, race, national origin, and revising paragraphs (b)(1), the
handicapped discrimination are The evaluator agrees to use the data (trade
secrets, business data, and technical data) introductory text of (b)(1)(ii), (c),
included as panel members for (d)(1)(i), (d)(1)(ii), the introductory text
contained in the proposal for evaluation
acquisitions in which such issues are purposes only. of (d)(1)(iv), and (d)(3)(iv) to read as
applicable. The foregoing requirement does not apply follows:
(4) The Project Officer shall submit to data obtained from another source without
the list of recommended panel members restriction. 315.404–4 Profit.
to an official within the project office in Any notice or legend placed on the (b) Policy. (1) The structured
a position at least one level higher. This proposal by either the Department or the approach for determining profit or fee
official will review the list and select submitter of the proposal shall be applied to (hereafter called profit) provides a
the chairperson. any reproduction or abstract provided to the technique for establishing a profit
(5) The Project Officer shall arrange evaluator or made by the evaluator. Upon objective for negotiation. A profit
for adequate and secure working space completion of the evaluation, the evaluator
shall return to the Government the furnished
objective is that part of the estimated
for the panel. contract price objective or value which,
copy of the proposal or abstract, and all
* * * * * copies thereof, to the Departmental office in the judgment of the Contracting
(E) Continuity of evaluation process. which initially furnished the proposal for Officer, constitutes an appropriate
(1) The technical evaluation panel shall evaluation. amount of profit for the acquisition
evaluate all original proposals, make Unless authorized by the Department’s being considered. This technique allows
recommendations to the chairperson initiating office, the evaluator shall not for consideration of the profit factors
regarding strengths and weaknesses of contact the submitter of the proposal described in paragraph (d) of this
proposals, and, if required by the concerning any aspects of its contents. section. The Contracting Officer’s
Contracting Officer, assist the The evaluator’s employees and analysis of these factors is based on
Contracting Officer during subcontractors shall abide by these
conditions.
available information such as proposals,
communications and discussions, and audit data, assessment reports, preaward
review supplemental, revised and/or * * * * * surveys, etc. The structured approach
final proposal revisions. To the extent 55. Amend section 315.371 by provides a basis for documenting the
possible, the same evaluators should be revising the introductory text of profit objective. Any significant
available throughout the entire paragraph (a) to read as follows: departure from this objective shall be
evaluation and selection process to explained. The amount of
315.371 Contract preparation and award.
ensure continuity and consistency in documentation depends on the dollar
the treatment of proposals. The (a) After details have been finalized value and complexity of the proposed
following are examples of circumstances with the selected offeror, the acquisition. The profit objective is a part
when it would not be necessary for the Contracting Officer shall: of the overall negotiation objective and
technical evaluation panel to evaluate * * * * * is directly related to the cost objective
revised proposals submitted during the 56. Amend section 315.372 by and any proposed sharing arrangement.
acquisition: revising the introductory text and The profit objective should be
* * * * * paragraph (a) to read as follows: negotiated at the same time as the other
cost items. The profit objective should modified structured approach in PART 319—SMALL BUSINESS
be negotiated as a whole and not as paragraph (d)(1)(iv)(B) of this section to PROGRAMS
individual profit factors. establish profit objectives for nonprofit
(ii) The profit analysis factors in FAR organizations. 61. Amend section 319.201 by
15.404–4(d) shall be used in lieu of the * * * * * revising paragraph (e) to read as follows:
structured approach in the following
circumstances. Factors considered (3) * * * 319.201 General policy.
inapplicable to the acquisition shall be (iv) Federal socioeconomic programs. * * * * *
excluded from the profit objective. This factor, which may apply to special
(e) (1) The Department’s Small
Documentation shall be provided which circumstances or particular acquisitions,
relates to the extent of a contractor’s Business Program shall be carried out by
includes the profit factor breakdown.
successful participation in Government appointed small business specialists
* * * * * (SBS) co-located within the OPDIVs.
(c) Contracting Officer sponsored programs such as small
business, small disadvantaged business, Appointments, and termination of
responsibilities. The Contracting Officer appointments, shall be made in writing
shall develop the profit objective. This women-owned small business, service-
disabled veterans, handicapped by the Director, Office of Small and
objective shall realistically reflect the
sheltered workshops, and energy Disadvantaged Business Utilization
total overall task to be performed and
the requirements placed on the conservation efforts. The contractor’s (OSDBU). The Director, OSDBU, will
contractor. The Contracting Officer shall policies and procedures which exercise full management authority over
not begin to develop the profit objective energetically support Government small business specialists.
until a thorough review of proposed socioeconomic programs and achieve (2) One or more qualified SBS shall be
contract work has been made; a review successful results should be given appointed in the following activities:
of all available knowledge regarding the positive considerations. Conversely, Agency for Healthcare Research and
contractor pursuant to FAR subpart 9.1, failure or unwillingness on the part of Quality (AHRQ), Centers for Medicare &
including audit data, preaward survey the contractor to support Government Medicaid Services (CMS), Substance
reports and financial statements, as socioeconomic programs should be Abuse and Mental Health Services
appropriate, has been conducted; and an viewed as evidence of poor performance
Administration (SAMHSA), Food and
analysis of the contractor’s cost estimate for the purpose of establishing a profit
Drug Administration (FDA), Health
and comparison with the Government’s objective.
Resources and Services Administration
estimate or projection of cost has been * * * * * (HRSA), Indian Health Service (IHS),
made. 58. Amend section 315.606 by National Institutes of Health (NIH),
(d) * * * revising paragraph (b) to read as follows: Centers for Disease Control (CDC),
(1) * * *
Program Support Center (PSC), and the
(i) The Contracting Officer shall 315.606 Agency procedures.
measure ‘‘Contractor Effort’’ by Office of the Secretary (OS).
* * * * *
assigning a profit percentage within the 62. Revise section 319.501 to read as
designated weight range to each element (b) The HCA or the HCA’s designee follows:
of contract cost. The categories listed are shall be the point of contact for
for reference purposes only, but are coordinating the receipt and handling of 319.501 General.
broad and basic enough to provide unsolicited proposals.
(e) Subsequent to the Contracting
guidance to other elements of cost. 59. Amend section 315.609 by Officer’s recommendation on Form
Facilities capital cost of money is not to revising the introductory text to read as HHS–653, Small Business Set-Aside
be included. A total dollar profit shall follows: Review Form, the SBS shall review each
be computed for ‘‘Contractor Effort.’’ proposed acquisition strategy and either
315.609 Limited use of data.
(ii) The Contracting Officer shall use concur or non-concur with the
the total dollar profit for the ‘‘Contractor The legend, Use and Disclosure of Contracting Officer’s recommendation.
Effort’’ to calculate specific profit Data, prescribed in FAR 15.609(a) is to The Small Business Administration’s
dollars for ‘‘Other Factors’’—cost risk, be used by the offeror to restrict the use Procurement Center Representative
investment, performance, of data for evaluation purposes only.
(SBA/PCR) shall also review the
socioeconomic programs, and special However, data contained within the
situations. The Contracting Officer shall acquisition strategy and either concur or
unsolicited proposal may have to be
multiply the total dollar profit for the disclosed as a result of a request non-concur with the Contracting
‘‘Contractor Effort’’ by the weight submitted pursuant to the Freedom of Officer’s recommendation. If the
assigned to each of the elements in the Information Act. Because of this Contracting Officer disapproves the
‘‘Other Factors’’ category. Facilities possibility, the following notice shall be SBS’s and/or the SBA PCR’s set-aside
capital cost of money is not included. provided to all prospective offerors of recommendation, the reasons must be
Form HHS–674, Structured Approach unsolicited proposals: documented on the Form HHS–653, and
Profit/Fee Objective, should be used. * * * * * the form placed in the contract file. The
Form HHS–674 is illustrated in Contracting Officer will make the final
353.370–674. PART 316—TYPES OF CONTRACTS determination as to whether the
* * * * * proposed acquisition will be set-aside or
(iv) The structured approach was 60. Revise section 316.603–3 to read not.
designed for arriving at profit objectives as follows: 63. Revise the heading of part 323 to
for other than nonprofit organizations. read as follows:
316.603–3 Limitations.
However, the structured approach can
be used for nonprofit organizations if An official one level above the
appropriate adjustments are made. The Contracting Officer shall make the
Contracting Officer shall use the written determination.
PART 323—ENVIRONMENT, ENERGY cognizant Freedom of Information (FOI) are allocated to cover specific phases or
AND WATER EFFICIENCY, Officer and the General Law Division of increments of performance.
RENEWABLE ENERGY the Office of General Counsel. The (a) Incremental funding may be used
TECHNOLOGIES, OCCUPATIONAL Contracting Officer must remember that in cost-reimbursement type contracts for
SAFETY, AND DRUG-FREE only the FOI Officer has the authority to the acquisition of severable services. It
WORKPLACE release or deny release of records. While shall not be used in contracts for
the Contracting Officer should be construction or architect-engineer
PART 324—PROTECTION OF PRIVACY familiar with the entire FOIA regulation services. Incremental funding allows
AND FREEDOM OF INFORMATION in 45 CFR part 5, particular attention severable cost-reimbursement type
should be focused on §§ 5.65 and 5.66; contracts awarded for more than one
64. Amend section 324.103 by also of interest are §§ 5.32, 5.33, and year to be funded from succeeding fiscal
revising paragraphs (b) and (c) to read 5.35. years.
as follows: (b) It is Departmental policy that
PART 325—[REMOVED] multiple year contracts be fully funded
324.103 Procedures.
whenever possible. However,
* * * * * 66. Remove part 325, consisting of
incrementally funded contracts may be
(b)(1) The Contracting Officer shall sections 325.102, 325.108, and 325.302.
used when:
identify in the contract work statement (1) A project, which is part of an
the system(s) of records to which the PART 330—COST ACCOUNTING
STANDARDS approved program, is anticipated to be
Privacy Act and the implementing of multiple year duration, but funds are
regulations are applicable. 67. Revise section 330.201–5 to read not currently available to cover the
(2) The Contracting Officer shall as follows: entire project;
include the Section H. contract clause (2) The project represents a valid need
specified in 352.270–11 to notify the § 330.201–5 Waiver.
for the fiscal year in which the contract
contractor that it and its employees are (b) Requests for waivers shall be is awarded and for the succeeding fiscal
subject to criminal penalties for forwarded through normal acquisition years of the project’s duration;
violations of the Act (5 U.S.C. 552a(i)) channels to the Director, Office of (3) The project is so significant to the
to the same extent as HHS employees. Acquisition Policy (DAP). approved program that there is
The clause also requires that the reasonable assurance that it will
contractor ensure that each of its PART 332—CONTRACT FINANCING command a high priority for proposed
employees knows the prescribed rules appropriations to cover the entire
of conduct and each contractor 68. Revise section 332.402 to read as
follows: multiple year duration; and
employee is aware that he/she is subject (4) The statement of work is specific
to criminal penalties for violations of § 332.402 General. and is defined by separate phases or
the Act. These provisions also apply to (e) The HCA shall determine whether increments so that, at the completion of
all subcontracts awarded under the an advance payment is in the public each, progress can be effectively
contract which require the design, interest in accordance with FAR measured.
development or operation of a system of 32.402(c)(1)(iii)(A). This authority is 72. Revise section 332.703–1 to read
records. The Contracting Officer shall non delegable. as follows:
send the contractor a copy of 45 CFR 69. Amend section 332.407 by
part 5b, which includes the rules of § 332.703–1 General.
revising paragragh (d) introductory text
conduct and other Privacy Act to read as follows: (b) The following general guidelines
requirements. are applicable to incrementally funded
(c) The Contracting Officer shall § 332.407 Interest. contracts:
specify in the contract work statement (d) The HCA (not delegable) is (1) The estimated total cost of the
and award the disposition to be made of authorized to make the determinations project (all planned phases or
the system(s) of records upon in FAR 32.407(d) and as follows. increments) is to be taken into
completion of contract performance. Interest-free advance payments may also consideration when determining the
The contract work statement may be approved for educational institutions requirements which must be met before
require the contractor to destroy the and other nonprofit organizations, entering into the contract; i.e.,
records, remove personal identifiers, whether public or private, performing justification for noncompetitive
turn the records over to the Contracting work under nonprofit contracts (without acquisition, approval of award, etc.
Officer, or keep the records, in which fee) involving health services, (2) The RFP and resultant contract are
case the contractor must take measures, educational programs, or social service to include a statement of work which
as approved by the Contracting Officer, programs, such as: describes the total project covering the
to keep the records confidential and * * * * * proposed multiple year period of
protect the individuals’ privacy. 70. Revise section 332.501–2 to read performance and indicating timetables
* * * * * as follows: consistent with planned phases or
65. Amend section 324.202 by increments and corresponding
redesignating it as section 324.203 and § 332.501–2 Unusual progress payments. allotments of funds.
revising paragraph (b) to read as follows: (a)(3) The approval of an unusual (3) Offerors’ technical and cost
progress payment shall be made by the proposals must include the entire
§ 324.203 Policy. HCA (not delegable). project and shall show distinct phases
* * * * * 71. Revise section 332.702 to read as or increments and the multiple year
(b) The Contracting Officer, upon follows: period of performance.
receiving a Freedom Of Information Act (4) Negotiations will be conducted
(FOIA) request, shall follow Department § 332.702 Policy. based upon the total project, including
and OPDIV procedures. As necessary, An incrementally funded contract is a all planned phases or increments, and
actions should be coordinated with the multiple year contract in which funds the multiple year period of performance.
(5) Sufficient funds must be obligated § 333.104 Protests to GAO. (7) The DPCO, Division of Acquisition
under the basic contract to cover no less (a) General procedures. (3)(ii) The Policy (DAP), shall serve as the GAO
than the first year of performance, DPCO shall process protests filed with point of contact for protests lodged with
unless the Contracting Officer GAO, whether pre- or post-award. GAO.
determines it is advantageous to the Protest files shall be prepared by the (b) Protests before award. (1) To make
Government to fund the contract for a contracting office and distributed as an award notwithstanding a protest, the
lesser period. In that event, the follows: Two copies to the DPCO, one Contracting Officer shall prepare a
Contracting Officer shall ensure that the copy to the contracting activity’s protest finding using the criteria in FAR
obligated funds are sufficient to cover a control officer, and one copy to OGC– 33.104(b)(1), have it executed by the
complete phase or increment of GLD. In addition to the items listed in HCA (not delegable), and forward it,
performance representing a material and 33.104(a)(3)(ii)(A)–(G), the protest file along with a written request for
measurable part of the total project and shall include the following documents: approval to make the award, to the
the period of time that the funds cover (H) The current status of award. When Director, Office of Acquisition
shall be stated in the contract. award has been made, this shall include Management and Policy (Director,
(6) An incrementally funded contract whether performance has commenced, OAMP).
must contain precise requirements for shipment or delivery has been made, or (2) If the request to make an award
progress reports to be sent to the Project a stop work order has been issued. notwithstanding the protest is approved
and Contracting Officers. These reports (I) A copy of any mutual agreement to by the Director, OAMP, the DPCO shall
will enable the contract to be effectively suspend work on a no-cost basis, when notify GAO. Whether the request is
monitored. The Project Officer shall appropriate (see FAR 33.104(c)(4)). approved or not, the DPCO shall
prepare periodic performance (J) Copies of the notice of protest telephonically notify the contracting
evaluation reports and provide them to given offerors and other parties when activity’s protest control officer of the
the Contracting Officer. the notice is appropriate (see FAR decision of the Director, OAMP, and the
73. Revise section 332.704 to read as 33.104(a)(2)). contracting activity’s protest control
follows: (K) A copy of the technical evaluation officer shall immediately notify the
report, when applicable, and a copy of Contracting Officer. The DPCO shall
§ 332.704 Limitation of cost or funds. confirm the decision by memorandum
each evaluator’s rating for relevant
See subpart 342.71, ‘‘Administrative to the contracting activity’s protest
proposals.
Actions for Cost Overruns,’’ for control officer.
(L) A copy of the negotiation
procedures for handling anticipated cost (c) Protests after award. (2) If the
memorandum, when applicable.
overruns. Contracting Officer believes
(M) The name and telephone number
74. Revise section 332.705–2 to read performance should be allowed to
of the person in the contracting office
as follows: continue notwithstanding the protest, a
who may be contacted for information
§ 332.705–2 Clauses for limitation of costs relevant to the protest. finding shall be prepared by the
or funds. (N) A copy of the competitive range Contracting Officer using the criteria in
(c)(2) The Contracting Officer shall memorandum. FAR 33.104(c)(2), executed by the HCA
also include a clause reading as that (O) Any document which is referred (not delegable), and forwarded, along
shown in 352.232–74 in the resultant to in the Contracting Officer’s statement with a written request for approval, to
incrementally funded contract. of facts. The files shall be assembled in the Director, Division of Acquisition
(3) The request for proposals must an orderly manner and shall include an Policy (DAP). The same procedures for
inform prospective offerors of the index of enclosures and any document notification stated in paragraph (b)(2) of
Department’s intention to enter into an referred to therein. this section shall be followed.
incrementally funded contract. (4) The DPCO is responsible for (d) Findings and notice. The written
Therefore, the Contracting Officer shall making the necessary distributions notice required by FAR 33.104(d) shall
include the provision at 352.232–75 in referenced in FAR 33.104(a)(4). be provided to the protestor and any
the request for proposals whenever the (5) The Contracting Officer shall intervenors by the DPCO.
furnish the protest file containing the (g) Notice to GAO. The Director,
use of incremental funding is
documentation specified in paragraph Office of Acquisition Management and
contemplated.
(a)(3)(ii) of this section to the DPCO Policy shall be the official to comply
§ 332.902 [Removed] within fourteen (14) calendar days from with the requirements of FAR 33.104(g).
75. Remove section 332.902. 79. Revise section 333.203 to read as
receipt of the protest. The Contracting
follows:
Officer shall provide the documentation
PART 333—PROTESTS, DISPUTES, required by FAR 33.104(a)(3)(ii) to the § 333.203 Applicability.
AND APPEALS DPCO within twenty-one (21) calendar (c) The Secretary has designated the
§ 333.102 [Amended] days from receipt of the protest. Since Armed Services Board of Contract
76. Amend section 333.102 by the statute allows only a short time Appeals (ASBCA) as the authorized
removing paragraph (a). period in which to respond to protests ‘‘Board’’ to hear and determine disputes
77. Amend section 333.103 by lodged with GAO, the Contracting for the Department.
revising paragraph (f)(3) to read as Officer shall handle each protest on a 80. Revise section 333.211 to read as
follows: priority basis. The DPCO shall submit follows:
copies of the protest file to GAO, the
§ 333.103 Protests to the agency. protestor, and any intervenors in § 333.211 Contracting officer’s decision.
(f) * * * accordance with FAR 33.104(a)(4)(i). (a)(2) The contracting officer shall
(3) Protests received after award shall (6) Since the DPCO will furnish the refer a proposed final decision to the
be treated as indicated in FAR protest file to GAO, the protestor, and Office of General Counsel-General Law
33.103(f)(3). any intervenors, comments on the file Division (OGC–GLD), for advice as to
78. Revise section 333.104 to read as from the protestor and any intervenors the legal sufficiency and format before
follows: will be sent to the DPCO. sending the final decision to the
contractor. The contracting officer shall copies of the file, one for the ASBCA, PART 334—[REMOVED]
provide OGC–GLD with the pertinent one for the appellant, one for the
documents with the submission of each Government Trial Attorney, and one for 83. Remove part 334.
proposed final decision. the contracting office.
PART 335—RESEARCH AND
(a)(4)(v) When using the paragraph in (d) At all times after the filing of an DEVELOPMENT CONTRACTING
FAR 33.211(a)(4)(v), the contracting appeal, the contracting officer shall
officer shall insert the words ‘‘Armed render whatever assistance is requested 84. Amend section 335.070–2 by
Services’’ before each mention of the by the Government Trial Attorney. revising the introductory text and
term ‘‘Board of Contract Appeals’’. When an appeal is set for hearing, the paragraph (a) to read as follows:
(h) At any time within the period of concerned contracting officer shall be
appeal, the contracting officer may 335.070–2 Amount of cost-sharing.
responsible for providing Government
modify or withdraw his/her final When cost-sharing is appropriate, use
witnesses and specified physical and
decision. If an appeal from the final the following guidelines to determine
documentary evidence to the Trial
decision has been taken to the ASBCA, the amount of cost participation by the
Attorney. The Trial Attorney shall
the contracting officer will forward his/ contractor:
ensure the presence of all witnesses and
her recommended action to OGC–GLD (a) The amount of cost participation
documentary evidence at both the pre-
with the supplement to the contract file should depend on the extent to which
hearing conference and hearing.
which supports the recommended the research effort or results are likely
correction or amendment. (e) If a contractor which has filed an to enhance the performing
81. Revise section 333.212 to read as appeal with the ASBCA elects to accept organization’s capability, expertise, or
follows: fully the decision from which the competitive position, and the value of
appeal was taken, or any modification to this enhancement to the performing
§ 333.212 Contracting officer’s duties it, and gives written notification of organization. It should be recognized
upon appeal. acceptance to the Government Trial that those organizations which are
(a) Appeals shall be governed by the Attorney or the concerned contracting predominantly engaged in research and
rules set forth in the ‘‘Rules of the officer, the Government Trial Attorney development have little or no
Armed Services Board of Contract will notify the ASBCA of the disposition production or other service activities
Appeals,’’ or by the rules established by of the dispute in accordance with Rule and may not be in a favorable position
the U.S. Court of Federal Claims, as 27 of the ASBCA. to derive a monetary benefit from their
appropriate. research under Federal agreements.
(f) If the contractor has elected to
(b) The Office of General Counsel- Therefore, contractor cost participation
appeal to the U.S. Court of Federal
General Law Division (OGC–GLD) is could reasonably range from as little as
Claims, the U.S. Department of Justice
designated as the Government Trial 1 percent or less of the total project cost,
will represent the Department.
Attorney to represent the Government in to more than 50 percent of the total
However, the contracting officer shall
the defense of appeals before the project cost. Ultimately, the Contracting
still coordinate all actions through OGC-
ASBCA. A decision by the ASBCA will Officer should bear in mind that cost-
GLD.
be transmitted by the Government Trial sharing is a negotiable item. As such,
Attorney to the appropriate contracting 82. Amend section 333.212–70 by
the amount of cost-sharing should be
officer for compliance in accordance revising paragraph (a) to read as follows:
proportional to the anticipated value of
with the ASBCA’s decision. the contractor’s gain.
333.212–70 Formats.
(c) If an appeal is filed with the
ASBCA, the contracting officer shall (a) The following format is suggested * * * * *
assemble a file within 30 days of receipt for use in transmitting appeal files to the 85. Add part 339, consisting of
of an appeal, or advice that an appeal ASBCA: sections 339.201–10 and 339.201–70, to
has been filed, that consists of all read as follows:
Your reference:
documents pertinent to the appeal, (Docket No.) PART 339—ACQUISITION OF
including: (Name) INFORMATION TECHNOLOGY
(1) The decision and findings of fact Recorder, Armed Services Board of Contract
from which the appeal is taken; Appeals Sec.
(2) The contract, including Skyline Six 339.201–10 Clarification.
specifications and pertinent 5109 Leesburg Pike 339.201–70 Required provision and
modifications, plans and drawings; Falls Church, Virginia 22041 contract clause.
(3) All correspondence between the Dear (Name): Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).
parties pertinent to the appeal, Transmitted herewith are documents
including the letter or letters of claim in relative to the appeal under Contract No. l 339.201–10 Clarification.
response to which the decision was with the ll (Name of contractor) in FAR Subpart 39.2, Electronic and
accordance with the procedures under Rule Information Technology, requires
issued;
4. The Government Trial Attorney for this
(4) Transcripts of any testimony taken Federal agencies to ensure that, when
case is (Insert General Law Division, Office of
during the course of proceedings, and General Counsel, Department of Health and
acquiring EIT, Federal employees with
affidavits or statements of any witness Human Services, 330 Independence Avenue, disabilities and members of the public
on the matter in dispute made prior to SW., Washington, DC 20201). with disabilities have access to and use
the filing of the notice of appeal with The request for payment of charges of information and data that is
the Board; and resulting from the processing of this appeal comparable to individuals without
(5) Any additional information should be addressed to: (Insert name and disabilities. This EIT access requirement
considered pertinent. The contracting address of cognizant finance office.) does not apply to a contractor’s internal
officer shall furnish the appeal file to Sincerely yours, workplaces. EIT that is not used nor
the Government Trial Attorney for Contracting Officer accessed by Federal employees or
review and approval. After approval, the Enclosures members of the public is not subject to
contracting officer shall prepare four * * * * * the Architectural and Transportation
Barriers Compliance Board (Access with all the terms and conditions of the disapproval of contract deliverables and
Board) standards. Contractors in their contract. The Contracting Officer shall of completion of tasks or phases. The
professional capacity are not members inform the contractor by letter (if not Contracting Officer or designee will
of the public for purposes of Section already stipulated in the contract) of the provide the contractor with written
508. authorities and responsibilities of the notification of approval or disapproval
Government personnel involved with and include a copy in the contract file;
339.201–70 Required provision and (ii) Monitor the technical aspects of
contract clause.
the contract.
(c) The Contracting Officer must the contract, identify existing and
When acquiring EIT, the Contracting depend on program, technical, and potential problems that threaten
Officer shall insert the provision at other personnel for assistance and performance, and immediately inform
352.270–19(a) in solicitations and the advice in monitoring the contractor’s the Contracting Officer of deviations
clause in 352.270–19(b) in contracts and performance, and in other areas of from contract objectives or from any
orders for projects that will develop, postaward administration. The technical or delivery requirements;
purchase, maintain, or use electronic Contracting Officer must assure that (iii) Immediately notify the head of
and information technology (EIT), these individuals understand and carry the program office whenever it is
unless these EIT products and/or out their assigned responsibilities. The determined that objectives are not being
services are incidental to the project. individual roles and corresponding met and provide specific
(Note: Other exceptions to this recommendations of actions to be taken.
responsibilities typically involve, but
requirement can be found at FAR The Contracting Officer shall receive a
are not limited to, the following:
39.204.) (1) The role of program and technical copy of the Project Officer’s report and
PART 342—CONTRACT personnel in monitoring the contract is recommendations;
to assist and/or advise the Contracting (iv) Within 120 days after contract
ADMINISTRATION
Officer or act as his/her representative completion, submit a final written
86. Revise section 342.705 to read as when so designated by the Contracting assessment report to the Contracting
follows: Officer. Activities may include: Officer. The report should include
(i) Providing technical monitoring analysis of the contractor’s performance,
342.705 Final indirect cost rates.
during contract performance, and including the contract and program
(a) Each Director, Division of Cost issuing letters to the contractor and objectives achieved and missed. A copy
Allocation of the Program Support Contracting Officer relating to delivery, of the final assessment report shall be
Center within each servicing HHS acceptance, or rejection in accordance forwarded to the head of the program
regional office, has been delegated the with the terms of the contract; office responsible for the program for
authority to establish indirect cost rates, (ii) Assessing contractor performance, management review and follow-up, as
research patient care rates, and, as including inspection and testing of necessary; and
necessary, fringe benefit, computer, and products and evaluation of reports and (v) Accompany and/or provide, when
other special costing rates for use in data; requested, technical support to the HHS
contracts and grants awarded to State (iii) Recommending necessary auditor in the conduct of visual
and local governments, colleges and changes to the schedule of work and inspections.
universities, hospitals, and other period of performance in order to (3) The roles of the contract
nonprofit organizations. accomplish the objectives of the administrator, auditor, cost analyst, and
(b) The Division of Financial contract. Program officials must provide property administrator are to assist and/
Advisory Services of the National the Contracting Officer a written request or advise the Contracting Officer in
Institutes of Health has the authority to along with an appropriate justification postaward administration activities
establish indirect cost rates, fringe and a funding document if additional such as:
benefit rates, etc., for use in contracts funds are needed; (i) Evaluation of contractor systems
and grants awarded to commercial (iv) Reviewing invoices/vouchers and and procedures, to include accounting
organizations. recommending approval/disapproval policies and procedures, purchasing
87. Revise section 342.7001 to read as action by the Contracting Officer, to policies and practices, property
follows: include comments regarding anything accounting and control, wage and salary
342.7001 Purpose. unusual discovered in the review; plans and rate structures, personnel
Contract monitoring is an essential (v) Reviewing and recommending policies and practices, etc.;
element of contract administration and approval or disapproval of (ii) Processing of disputes under the
is performed jointly by the Project subcontractors, overtime, travel, and key Disputes clause and any resultant
Officer and the Contracting Officer. This personnel changes; and appeals;
subpart describes the Department’s (vi) Participating, as necessary, in (iii) Modification or termination of the
operating concepts. various phases of the contract closeout contract; and
88. Revise section 342.7002 to read as process. (iv) Determination of the allowability
follows: (2) The role of the Project Officer in of cost charges to incentive or cost-
monitoring the contract includes the reimbursement type contracts and
342.7002 Contract monitoring applicable activities set forth in progress payments under fixed-price
responsibilities. paragraph (c)(1) of this section. The contracts. This is especially important
(a) The contract establishes the Project Officer also shall do the when award is made to new
obligations of both the Government and following: organizations or those with financial
the contractor. The Contracting Officer (i) Submit periodic reports to the weaknesses.
is the only person authorized to make Contracting Officer that concisely (d) The Contracting Officer is
changes to the contract. The Contracting explain the status of the contract, and responsible for assuring that contractor
Officer must confirm all changes in include recommended actions for any performance and contract monitoring
writing. problems reported. Provide the conform with contract terms. If
(b) The Contracting Officer is Contracting Officer with written performance is not satisfactory or if
responsible for assuring compliance notification of evaluation and approval/ problems are anticipated, it is essential
that the Contracting Officer take (2) If the default is not determined to Officer shall immediately notify, in
immediate action to protect the be excusable or a response is not writing, all recipients of the notice of
Government’s rights under the contract. received within the allotted time, the suspension that the suspension is to be
The Contracting Officer shall notify his/ Contracting Officer shall initiate lifted and contract payments are to be
her immediate supervisor of problems withholding action on all contract resumed.
that cannot be resolved within contract payments and shall determine whether (d) When exercising actions regarding
limitations and whenever contract or termination for default or other action the withholding of payment procedures,
program objectives are not met. The would be in the best interest of the the Contracting Officer must be careful
notification shall include a statement of Government. not to waive any of the Government’s
action being taken by the Contracting (c) When the contract does not rights when corresponding with the
Officer. contain a termination for default clause, contractor or when taking any other
89. Revise section 342.7003–1 to read the contractor’s failure to submit any actions.
as follows: required report, perform services, or 92. Revise section 342.7100 to read as
deliver work when required by the follows:
342.7003–1 Policy. contract shall be considered a failure to
342.7100 Scope of subpart.
(a) All solicitations and resultant perform. The Contracting Officer shall
contracts (other than awards made using immediately issue a written notice to This subpart sets forth the procedures
simplified acquisition procedures) shall the contractor specifying the failure and to follow when a cost overrun is
contain the withholding of contract providing a ten day period (or longer anticipated. A cost overrun occurs when
payments clause at 352.232–9, and an period if the Contracting Officer deems the allowable actual cost of performing
excusable delays clause, or a clause it necessary) in which the contractor a cost-reimbursement type contract
which incorporates the definition of shall cure the failure or provide reasons exceeds the total estimated cost
excusable delays. Use the excusable for an excusable delay. The notice shall specified in the contract.
include a statement to the effect that 93. Amend section 342.7101–2 by
delays clause at 352.249–14 when the
payments will be withheld if the default revising the introductory text of
solicitation and resultant contract (other
is not cured within the time specified in paragraph (a) and paragraph (b)(3) to
than purchase orders) does not contain
the notice or if the default is not read as follows:
a default or other excusable delays
clause. determined to be excusable. 342.7101–2 Procedures.
(b) When appropriate, the Contracting (1) If the failure is cured or is (a) Upon notification that a cost
Officer may withhold any contract determined to be excusable, the overrun is anticipated, the Contracting
payment when a required report is Contracting Officer shall not initiate the Officer shall inform the contractor to
overdue, or the contractor fails to withholding action. submit a request for additional funds
perform or deliver required work or (2) If the failure is not determined to which shall include:
services. be excusable or a response is not
received within the allotted time, the * * * * *
90. Revise section 342.7003–2 to read (b) * * *
as follows: Contracting Officer shall initiate
(3) Maintain continuous follow-up
withholding action on all contract
with the program office to obtain a
342.7003–2 Procedures. payments and shall determine whether
timely decision as to whether the work
(a) The Contracting Officer is termination for convenience or other
under the contract should continue and
responsible for initiating immediate action would be in the best interest of
additional funds be provided, or the
action to protect the Government’s the Government.
(d) The Contracting Officer should contract terminated. An appropriate
rights whenever the contractor fails to written statement and funding
comply with either the delivery or consult FAR subpart 49.4 for further
guidance before taking any of the authority, or a formal request for
reporting terms of the contract. termination, must support the decision
Compliance with the reporting terms actions described in this section.
91. Revise section 342.7003–3 to read of the program office. After receiving the
includes those reports to be submitted decision by the program office, the
directly to the payment office. The as follows:
Contracting Officer shall promptly
payment office shall notify the 342.7003–3 Withholding payments. notify the contractor in writing of the
Contracting Officer promptly when such (a) When making the determination following:
a report is not submitted on time. that contract payments should be (i) The specified amount of additional
(b) When the contract contains a withheld in accordance with the funds allotted to the contract; or
termination for default clause, the Withholding of Contract Payments (ii) Work will be discontinued when
contractor’s failure to submit any report, clause, the Contracting Officer shall the allotted funds are exhausted, and
perform services, or deliver work when immediately notify the servicing finance any work performed after that date is at
required by the contract is considered a office in writing of the determination to the contractor’s risk; or
default in performance. The Contracting withhold payments. The notice of (iii) The Government is considering
Officer shall immediately issue a formal suspension shall contain all information whether to allot additional funds to the
ten-day cure notice pursuant to FAR necessary for the finance office to contract and will notify the contractor
49.607. The notice shall include a identify the contract, i.e., contract as soon as possible, but that any work
statement to the effect that payments number, task/delivery order number, performed after the currently allotted
will be withheld if the default is not contractor name and address, etc. funds are exhausted is at the
cured within the time frame specified in (b) The Contracting Officer shall contractor’s risk. Timely, formal
the notice or if the default is not immediately notify the contractor in notification of the Government’s
determined to be excusable. writing that payments have been intention is essential in order to
(1) If the default is cured or is suspended until the default or failure is preclude loss of contractual rights in the
determined to be excusable, the cured. event of dispute, termination, or
Contracting Officer shall not initiate the (c) When the contractor cures the litigation.
withholding action. default or failure, the Contracting * * * * *
PART 352—SOLICITATION specifically identified by page number, covered by the following paragraph, or
PROVISIONS AND CONTRACT paragraph, etc. by the offeror as containing preaward costs covered by paragraph 36 of
restricted information shall not be used or Attachment B to OMB Circular A–122.
CLAUSES
disclosed except for evaluation purposes. * * * * *
94. Revise section 352.202–1 to read The offeror acknowledges that the 98. Revise section 352.223–70 to read
as follows: Department may not be able to withhold a
record (data, document, etc.) nor deny access
as follows:
352.202–1 Definitions. to a record requested pursuant to the Act and 352.223–70 Safety and health.
As prescribed in 302.201, use the FAR that the Department’s FOI officials must
make that determination. The offeror hereby
The following clause shall be used as
Definitions clause at 52.202–1 as agrees that the Government is not liable for prescribed in 323.7002:
modified: disclosure if the Department has determined Safety and Health (January 2006)
Definitions (January 2006) that disclosure is required by the Act.
If a contract is awarded to the offeror as a (a) To help ensure the protection of the life
(a) In accordance with 52.202–1(a)(1), result of, or in connection with, the and health of all persons, and to help prevent
substitute the following as paragraph (a): submission of this proposal, the Government damage to property, the Contractor shall
‘‘(a) The term ‘‘Secretary’’ or ‘‘Head of the shall have the right to use or disclose the data comply with all Federal, State and local laws
Agency’’ (also called ‘‘Agency Head’’) means to the extent provided in the contract. and regulations applicable to the work being
the Secretary, Deputy Secretary, or any Proposals not resulting in a contract remain performed under this contract. These laws
Assistant Secretary, Administrator or subject to the Act. are implemented and/or enforced by the
Commissioner of the Department of Health Environmental Protection Agency,
The offeror also agrees that the
and Human Services; and the term ‘‘his/her Occupational Safety and Health
Government is not liable for disclosure or use
duly authorized representative’’ means any Administration and other agencies at the
of unmarked data and may use or disclose
person, persons, or board authorized to act Federal, State and local levels (Federal, State
the data for any purpose, including the
for the Secretary.’’ and local regulatory/enforcement agencies).
release of the information pursuant to
(b) In accordance with 52.202–1(a)(1), add (1) In addition, the following regulations
requests under the Act. The data subject to
the following paragraph (h): must be followed when developing and
this restriction are contained in pages (insert
‘‘(h) The term ‘‘Project Officer’’ means the implementing health and safety operating
page numbers, paragraph designations, etc. or
person who monitors the technical aspects of procedures and practices for both personnel
other identification).’’
contract performance. The Project Officer is and facilities involving the use or handling
(2) In addition, the offeror must mark each of hazardous materials and the conduct of
not authorized to issue any instructions or page of data it wishes to restrict with the
directions which cause any increase or research, development, or test projects:
following statement: (i) 29 CFR 1910.1030, Bloodborne
decrease in the scope of work which would ‘‘Use or disclosure of data contained on
result in the increase or decrease in the price pathogens; 29 CFR 1910.1450, Occupational
this page is subject to the restriction on the exposure to hazardous chemicals in
of this contract, or changes in the delivery cover sheet of this proposal or quotation.’’
schedule or period of performance of this laboratories; and other applicable
(3) Offerors are cautioned that proposals occupational health and safety standards
contract. If applicable, the Project Officer is submitted with restrictive statements or
not authorized to receive or act upon any issued by the Occupational Health and Safety
statements differing in substance from those Administration (OSHA) and included in 29
notification or revised cost estimate provided cited above may not be considered for award.
by the Contractor in accordance with the CFR Part 1910. These regulations are
The Government reserves the right to reject available at http://www.osha.gov/comp-
Limitation of Cost or Limitation of Funds any proposal submitted with nonconforming
clauses of this contract.’’ links.html.
statement(s). (ii) Nuclear Regulatory Commission
95. Revise section 352.215–1 to read 96. Revise section 352.215–70 to read Standards and Regulations, pursuant to the
as follows: as follows: Energy Reorganization Act of 1974 (42 U.S.C.
5801 et seq.). Copies may be obtained from
352.215–1 Instructions to offerors— 352.215–70 Late proposals and revisions. the U.S. Nuclear Regulatory Commission,
Competitive acquisition. Washington, DC 20555–0001.
As prescribed in 315.208, the
Insert the following paragraph (e) in following provision may be included in (2) The following guidelines are
place of paragraph (e) of the provision recommended for use in developing and
the solicitation: implementing health and safety operating
at FAR 52.215–1:
Late Proposals and Revisions (January 2006) procedures and practices for both personnel
(e) Restriction on disclosure and use of and facilities:
data. (1) The proposal submitted in response Notwithstanding the procedures contained
(i) Biosafety in Microbiological and
to this request may contain data (trade in FAR 52.215–1(c)(3) of the provision of this
Biomedical Laboratories, CDC and NIH, HHS.
secrets; business data, e.g., commercial solicitation entitled Instructions to Offerors-
This publication is available at http://
information, financial information, and cost Competitive Acquisition, a proposal received bmbl.od.nih.gov/index.htm.
and pricing data; and technical data) which after the date specified for receipt may be (ii) Prudent Practices for Safety in
the offeror, including its prospective considered if it appears to offer the best value Laboratories (1995), National Research
subcontractor(s), does not want used or to the Government and it was received before Council, National Academy Press, 500 Fifth
disclosed for any purpose other than for proposals were distributed for evaluation, or Street, NW, Lockbox 285, Washington, DC
evaluation of the proposal. The use and within five calendar days after the exact time 20055 (ISBN 0–309–05229–7). This
disclosure of any data may be so restricted; specified for receipt, whichever is earlier. publication can be obtained by telephoning
provided, that the Government determines (End of provision) 800–624–8373. It also is available at http://
that the data is not required to be disclosed www.nap.edu/catalog/4911.html.
under the Freedom of Information Act, 5 97. Amend section 352.216–72 by (b) Further, the Contractor shall take or
U.S.C. 552, as amended, and the offeror revising the heading and paragraph cause to be taken additional safety measures
marks the cover sheet of the proposal with (a)(4) of the ‘‘Additional Cost as the Contracting Officer, in conjunction
the following statements, specifying the Principles’’ clause to read as follows: with the project or other appropriate officers,
particular portions of the proposal which are determines to be reasonably necessary. If
to be restricted: ‘‘Unless disclosure is 352.216–72 Additional cost principles. compliance with these additional safety
required by the Freedom of Information Act, * * * * * measures results in an increase or decrease
5 U.S.C. 552, as amended, (the Act) as in the cost or time required for performance
determined by Freedom of Information (FOI) Additional Cost Principles (January 2006) of any part of work under this contract, an
officials of the Department of Health and (a) * * * equitable adjustment will be made in
Human Services, data contained in the (4) Bid and proposal costs do not include accordance with the applicable ‘‘Changes’’
portions of this proposal which have been independent research and development costs clause set forth in this contract.
(c) The Contractor shall maintain an this contract, or a portion thereof, is subject intention to withhold payment of any invoice
accurate record of, and promptly report to the to the Privacy Act, the Contractor will follow or voucher submitted.
Contracting Officer, all accidents or incidents the rules and procedures of disclosure set
resulting in the exposure of persons to toxic forth in the Privacy Act of 1974, 5 U.S.C. (End of clause)
substances, hazardous materials or hazardous 552a, and implementing regulations and
operations; the injury or death of any person; 352.232–74 [Removed]
policies, with respect to systems of records
and/or damage to property incidental to work determined to be subject to the Privacy Act. 102. Remove section 352.232–74.
performed under the contract and all (d) Confidential information, as defined in 103. Revise section 352.232–75 to
violations for which the Contractor has been paragraph (a) of this clause, shall not be read as follows:
cited by any Federal, State or local disclosed without the prior written consent
regulatory/enforcement agency. The report of the individual, institution, or organization. 352.232–75 Incremental funding.
shall include a copy of the notice of violation (e) Whenever the Contractor is uncertain The following provision shall be
and the findings of any inquiry or inspection, with regard to the proper handling of included in all requests for proposals
and an analysis addressing the impact these material under the contract, or if the material
violations may have on the work remaining
whenever the use of incremental
in question is subject to the Privacy Act or
to be performed. The report shall also state funding is contemplated:
is confidential information subject to the
the required action(s), if any, to be taken to provisions of this clause, the Contractor Incremental Funding (January 2006)
correct any violation(s) noted by the Federal, should obtain a written determination from
State or local regulatory/enforcement agency (a) It is the Government’s intention to
the Contracting Officer prior to any release, negotiate and award a contract using the
and the time frame allowed by the agency to disclosure, dissemination, or publication.
accomplish the necessary corrective action. incremental funding concepts described in
(f) Contracting Officer determinations will the clause entitled Limitation of Funds, as
(d) If the Contractor fails or refuses to reflect the result of internal coordination
comply with the Federal, State or local specified in FAR 52.232–22. Under the
with appropriate program and legal officials. clause, which will be included in the
regulatory/enforcement agency’s directive(s) (g) The provisions of paragraph (d) of this
regarding any violation(s) and prescribed resultant contract, initial funds will be
clause shall not apply to conflicting or obligated under the contract to cover the first
corrective action(s), the Contracting Officer overlapping provisions in other Federal,
may issue an order stopping all or part of the year of performance. The Government
State, or local laws. intends to allot additional funds up to and
work until satisfactory corrective action (as
approved by the Federal, State or local (End of clause) including the full estimated cost of the
regulatory/enforcement agencies) has been contract for the remaining years of
100. Amend section 352.228–7 by performance by contract modification.
taken and documented to the Contracting
revising paragraph (d) of the However, the Government is not obligated to
Officer. No part of the time lost due to any
stop work order shall be subject to a claim ‘‘Insurance—Liability to Third Persons’’ reimburse the Contractor for costs incurred in
for extension of time or costs or damages by clause to read as follows: excess of the periodic allotments nor is the
the Contractor. Contractor obligated to perform in excess of
352.228–7 Insurance—Liability to third the amount allotted.
(e) The Contractor shall insert the
persons. (b) The Limitation of Funds clause to be
substance of this clause in each subcontract
involving toxic substances, hazardous * * * * * included in the resultant contract, as
materials, or hazardous operations. (d) The Government’s liability under specified in FAR 52.232–22, shall supersede
Compliance with the provisions of this paragraph (c) of this clause is limited to the the Limitation of Cost clause found in the
clause by subcontractors will be the amounts reflected in final judgments, or Section I, Contract Clauses.
responsibility of the Contractor. settlements approved in writing by the
Government, but in no event to exceed the (End of provision)
(End of clause) funds available under the Limitation of Cost 104. Revise section 352.233–70 to
99. Revise section 352.224–70 to read or Limitation of Funds clause of this contract. read as follows:
as follows: Nothing in this contract shall be construed as
implying that, at a later date, the Government 352.233–70 Litigation and claims.
352.224–70 Confidentiality of information. will request, or the Congress will Insert the following clause in all
The following clause covers the appropriate, funds sufficient to meet any solicitations and resultant cost-
policy set forth in subpart 324.70 and is deficiencies. reimbursement contracts:
used in accordance with the * * * * * Litigation and Claims (January 2006)
instructions set forth in 324.7004. 101. Revise section 352.232–9 to read The Contractor shall provide written
Confidentiality of Information (January as follows: notification immediately to the Contracting
2006) Officer of any action, including any
352.232–9 Withholding of contract
(a) Confidential information, as used in proceeding before an administrative agency,
payments.
this clause, means information or data of a filed against the Contractor arising out of the
personal nature about an individual, or Insert the following clause in all performance of this contract, including, but
proprietary information or data submitted by solicitations and contracts other than not limited to the performance of any
or pertaining to an institution or awards made using simplified subcontract hereunder; and any claim against
organization. acquisition procedures: the Contractor the cost and expense of which
(b) The Contracting Officer and the is allowable under the clause entitled
Contractor may, by mutual consent, identify Withholding of Contract Payments (January ‘‘Allowable Cost and Payment.’’ Except as
elsewhere in this contract specific 2006) otherwise directed by the Contracting Officer,
information and/or categories of information Notwithstanding any other payment the Contractor shall furnish immediately to
which the Government will furnish to the provisions of this contract, failure of the the Contracting Officer copies of all pertinent
Contractor or that the Contractor is expected Contractor to submit required reports when papers received by the Contractor with
to generate which is confidential. Similarly, due or failure to perform or deliver required respect to such action or claim. To the extent
the Contracting Officer and the Contractor work, supplies, or services, may result in the not in conflict with any applicable policy of
may, by mutual consent, identify such withholding of payments under this contract insurance, the Contractor may, with the
confidential information from time to time unless such failure arises out of causes Contracting Officer’s approval, settle any
during the performance of the contract. beyond the control, and without the fault or such action or claim. If required by the
Failure to agree will be settled pursuant to negligence of the Contractor as defined by the Contracting Officer, the Contractor shall
the ‘‘Disputes’’ clause. clause entitled ‘‘Excusable Delays’’ or effect an assignment and subrogation in favor
(c) If it is established elsewhere in this ‘‘Default’’, as applicable. The Government of the Government of all the Contractor’s
contract that information to be utilized under shall immediately notify the Contractor of its rights and claims (except those against the
Government) arising out of any such action facts and extent of such failure and if the and training in connection with the work to
or claim against the Contractor; and authorize Contracting Officer determines that any be performed under this contract, and which
representatives of the Government to settle or failure to perform was caused by will expand the opportunities for Indian
defend any such action or claim and to circumstances beyond the control and organizations and Indian-owned economic
represent the Contractor in, or to take charge without the fault or negligence of the enterprises to receive a preference in the
of, any action. If the settlement or defense of Contractor, the delivery schedule shall be awarding of subcontracts. In this connection,
an action or claim is undertaken by the revised accordingly, subject to the rights of the Contractor shall:
Government, the Contractor shall furnish all the Government under the termination clause (1) Designate a liaison officer who will
reasonable assistance in effecting a contained in this contract. (As used in this maintain liaison with the Government and
settlement or asserting a defense. Where an clause, the terms ‘‘subcontractor’’ and the Tribe(s) on Indian preference matters;
action against the Contractor is not covered ‘‘subcontractors’’ mean subcontractor(s) at supervise compliance with the provisions of
by a policy of insurance, the Contractor shall, any tier.) this clause; and administer the Contractor’s
with the approval of the Contracting Officer, Indian preference program.
proceed with the defense of the action in (End of clause) (2) Advise its recruitment sources in
good faith. The Government shall not be 106. Amend section 352.270–1 by writing and include a statement in all
liable for the expense of defending any action revising the introductory text of the advertisements for employment that Indian
or for any costs resulting from the loss section and paragraph (c)(3) of the applicants will be given preference in
thereof to the extent that the Contractor Accessibility clause to read as follows: employment and training incident to such
would have been compensated by insurance employment.
which was required by law or regulation or 352.270–1 Accessibility of meetings, (3) Not more than twenty (20) calendar
by written direction of the Contracting conferences, and seminars to persons with days after award of the contract, post a
Officer, but which the Contractor failed to disabilities. written notice in the Tribal office of any
secure through its own fault or negligence. In Use the following clause in reservations on which or near where the
any event, unless otherwise expressly work under this contract is to be performed
provided in this contract, the Contractor shall
accordance with 370.102:
that sets forth the Contractor’s employment
not be reimbursed or indemnified by the Accessibility of Meetings, Conferences, and needs and related training opportunities. The
Government for any liability loss, cost or Seminars to Persons With Disabilities (JAN notice shall include the approximate
expense, which the Contractor may incur or 2001) numbers and types of employees needed; the
be subject to by reason of any loss, injury or * * * * * approximate dates of employment; the
damage, to the person or to real or personal (c) * * * experience or special skills required for
property of any third parties as may accrue (3) At a minimum, when requested in employment, if any; training opportunities
during, or arise from, the performance of this available; and other pertinent information
advance, the Contractor shall provide the
contract. necessary to advise prospective employees of
following services:
(i) For persons with hearing impairments, any other employment requirements. The
(End of clause) Contractor shall also request the Tribe(s) on
qualified interpreters. Also, the meeting
105. Revise section 352.249–14 to or near whose reservation(s) the work is to
rooms will be adequately illuminated so
read as follows: signing by interpreters can be easily seen. be performed to provide assistance to the
(ii) For persons with vision impairments, Contractor in filling its employment needs
352.249–14 Excusable delays. and training opportunities. The Contracting
readers and/or cassette materials, as
Insert the following clause in all necessary, to enable full participation. Also, Officer will advise the Contractor of the
solicitations and resultant contracts, meeting rooms will be adequately name, location, and phone number of the
other than awards made using illuminated. Tribal officials to contact in regard to the
simplified acquisition procedures: (iii) Agenda and other conference posting of notices and requests for Tribal
material(s) shall be translated into a usable assistance.
Excusable Delays (January 2006) (4) Establish and conduct a subcontracting
form for persons with sensory impairments.
(a) Except with respect to failures of Readers, Braille translations, large print text, program which gives preference to Indian
subcontractors, the Contractor shall not be and/or tape recordings are all acceptable. organizations and Indian-owned economic
considered to have failed in performance of These materials shall be available to enterprises as subcontractors and suppliers
this contract if such failure arises out of individuals with sensory impairments upon under this contract. The Contractor shall give
causes beyond the control and without the their arrival. public notice of existing subcontracting
fault or negligence of the Contractor. opportunities and, to the extent feasible and
(b) Such causes may include, but are not * * * * * consistent with the efficient performance of
restricted to, acts of God or of the public (End of clause) this contract, shall solicit bids or proposals
enemy, acts of the Government in either its 107. Amend section 352.270–2 by only from Indian organizations or Indian-
sovereign or contractual capacity, fires, revising the introductory text to read as owned economic enterprises. The Contractor
floods, epidemics, quarantine restrictions, follows: shall request assistance and information on
strikes, freight embargoes, and unusually Indian firms qualified as suppliers or
severe weather, but in every case the failure 352.270–2 Indian preference. subcontractors from the Tribe(s) on or near
to perform must be beyond the control and Use the following clause as prescribed whose reservation(s) the work under the
without the fault or negligence of the contract is to be performed. The Contracting
Contractor. If the failure to perform is caused
in 370.202(a): Officer will advise the Contractor of the
by the failure of a subcontractor to perform, * * * * * name, location, and phone number of the
and if such failure arises out of causes 108. Revise section 352.270–3 to read Tribal officials to be contacted in regard to
beyond the control of both the Contractor and as follows: the request for assistance and information.
subcontractor, and without the fault or Public notices and solicitations for existing
negligence of either of them, the Contractor 352.270–3 Indian preference program. subcontracting opportunities shall provide an
shall not be deemed to have failed in Use the following clause as prescribed equitable opportunity for Indian firms to
performance of the contract, unless: (1) the in 370.202(b): submit bids or proposals by including: (i) A
supplies or services to be furnished by the clear description of the supplies or services
subcontractor were obtainable from other Indian Preference Program (January 2006) required, including quantities, specifications,
sources, (2) the Contracting Officer ordered (a) In addition to the requirements of the and delivery schedules which facilitate the
the Contractor in writing to procure such clause of this contract entitled ‘‘Indian participation of Indian firms; (ii) A statement
supplies or services from such other sources, Preference,’’ the Contractor agrees to indicating that preference will be given to
and (3) the Contractor failed to comply with establish and conduct an Indian preference Indian organizations and Indian-owned
such order. Upon request of the Contractor, program which will expand opportunities for economic enterprises in accordance with
the Contracting Officer shall ascertain the Indians to receive preference for employment section 7(b) of Public Law 93–638 (88 Stat.
2205; 25 U.S.C. 450e(b)); (iii) Definitions for economic enterprise’’ are defined in the on performance under this contract. The
the terms ‘‘Indian organization’’ and ‘‘Indian- clause of this contract entitled ‘‘Indian Contractor shall not divert or otherwise
owned economic enterprise’’ as prescribed Preference.’’ replace any key personnel without the
under the ‘‘Indian Preference’’ clause of this (2) ‘‘Indian reservation’’ includes Indian written consent of the Contracting Officer.
contract; (iv) A statement to be completed by reservations, public domain Indian The Government may modify the contract to
the bidder or offeror that it is an Indian Allotments, former Indian reservations in add or delete key personnel at the request of
organization or Indian-owned economic Oklahoma, and land held by incorporated the contractor or Government.
enterprise; and (v) A closing date for receipt Native groups, regional corporations, and
of bids or proposals which provides village corporations under the provisions of (End of clause)
sufficient time for preparation and the Alaska Native Claims Settlement Act (85 111. Revise section 352.270–6 to read
submission of a bid or proposal. If after Stat. 688; 43 U.S.C. 1601 et seq.) as follows:
soliciting bids or proposals from Indian (3) ‘‘On or near an Indian Reservation’’
organizations and Indian-owned economic means on a reservation or reservations or 352.270–6 Publications and publicity.
enterprises, no responsive bid or acceptable within that area surrounding an Indian Insert the following clause in all
proposal is received, the Contractor shall reservation(s) where a person seeking solicitations and resultant contracts.
comply with the requirements of paragraph employment could reasonably be expected to
(d) of the ‘‘Indian Preference’’ clause of this commute to and from in the course of a work Publications and Publicity (January 2006)
contract. If one or more responsible bids or day. (a) Unless otherwise specified in this
acceptable proposals are received, award (c) Nothing in the requirements of this contract and the Confidentiality of
shall be made to the low responsible bidder clause shall be interpreted to preclude Indian Information clause is included, the
or acceptable offeror if the price is Tribes from independently developing and Contractor is encouraged to publish the
determined to be reasonable. If the low enforcing their own Indian preference results of its work under this contract. A
responsive bid or acceptable proposal is requirements. Such requirements must not copy of each article submitted by the
determined to be unreasonable as to price, conflict with any Federal statutory or Contractor for publication shall be promptly
the Contractor shall attempt to negotiate a regulatory requirement dealing with the sent to the Project Officer. The Contractor
reasonable price and award a subcontract. If award and administration of contracts. shall also inform the Project Officer when the
a reasonable price cannot be agreed upon, the (d) The Contractor agrees to include the article or other publication is published, and
Contractor shall comply with the provisions of this clause, including this furnish a copy of it as finally published.
requirements of paragraph (d) of the ‘‘Indian paragraph (d), in each subcontract awarded at (b) The Contractor shall include in any
Preference’’ clause of this contract. any tier under this contract and to notify the publication resulting from work performed
(5) Maintain written records under this Contracting Officer of such subcontracts. under this contract a disclaimer reading as
contract which indicate: (i) The numbers of (e) In the event of noncompliance with this follows:
Indians seeking employment for each clause, the Contracting Officer may terminate ‘‘The views expressed in written
employment position available under this the contract in whole or in part or may conference materials or publications and by
contract; (ii) The number and types of impose any other sanctions authorized by speakers and moderators at HHS-sponsored
positions filled by Indians and non-Indians; law or by other provisions of the contract. conferences, do not necessarily reflect the
(iii) The total number of Indians employed official policies of the Department of Health
under this contract; (iv) For those positions (End of clause) and Human Services; nor does mention of
where there are both Indian and non-Indian 109. Amend section 352.270–4 by trade names, commercial practices, or
applicants, and a non-Indian is selected for revising the introductory text to read as organizations imply endorsement by the U.S.
employment, the reason(s) why the Indian
follows and by removing the word Government.’’
applicant was not selected; (v) Actions taken (c) Unless authorized by the Project
to give preference to Indian organizations ‘‘permforming’’ in paragraph (d) of the
table and adding ‘‘performing’’ in its Officer, the contractor shall not display the
and Indian-owned economic enterprises for HHS logo on any conference materials or
subcontracting opportunities which exist place.
publications.
under this contract; (vi) Reasons why
preference was not given to Indian firms as 352.270–4 Pricing of adjustments.
(End of clause)
subcontractors or suppliers for each Insert the following clause in all
requirement where it was determined by the solicitations and resultant fixed-priced
as follows:
Contractor that such preference would not be contracts other than awards made using
consistent with the efficient performance of simplified acquisition procedures. 352.270–7 Paperwork Reduction Act.
the contract; and (vii) The number of Indian
organizations and Indian-owned economic
* * * * * Insert the following clause in all
enterprises contacted, and the number 110. Revise section 352.270–5 to read solicitations and contracts subject to the
receiving subcontract awards under this as follows: Paperwork Reduction Act requirements
contract. regarding the collection and recording
352.270–5 Key personnel.
(6) Submit to the Contracting Officer for of information from 10 or more persons
approval a quarterly report which Insert the following clause in all other than Federal employees.
summarizes the Contractor’s Indian solicitations and resultant contracts
preference program and indicates the number which require Key Personnel, regardless Paperwork Reduction Act (January 2006)
and types of available positions filled by of the type of contract. (a) This contract involves a requirement to
Indians and non-Indians, and the dollar collect or record information calling either
amounts of all subcontracts awarded to Key Personnel (January 2006) for answers to identical questions from 10 or
Indian organizations and Indian-owned The key personnel specified in this more persons other than Federal employees,
economic enterprises, and to all other firms. contract are considered to be essential to or information from Federal employees
(7) Maintain records pursuant to this work performance. At least 30 days prior to which is outside the scope of their
clause and keep them available for review by diverting any of the specified individuals to employment, for use by the Federal
the Government for one year after final other programs or contracts (or as soon as government or disclosure to third parties;
payment under this contract, or for such possible, if an individual must be replaced, therefore, the Paperwork Reduction Act of
longer period as may be required by any for example, as a result of leaving the employ 1995 (Pub. L. 104–13) shall apply to this
other clause of this contract or by applicable of the Contractor), the Contractor shall notify contract. No plan, questionnaire, interview
law or regulation. the Contracting Officer and shall submit guide or other similar device for collecting
(b) For purposes of this clause, the comprehensive justification for the diversion information (whether repetitive or single-
following definitions of terms shall apply: or replacement request (including proposed time) may be used without first obtaining
(1) The terms ‘‘Indian,’’ ‘‘Indian Tribe,’’ substitutions for key personnel) to permit clearance from the Office of Management and
‘‘Indian Organization,’’ and ‘‘Indian-owned evaluation by the Government of the impact Budget (OMB). Contractors and Project
Officers should be guided by the provisions OHRP, (telephone: 301–496–7014), is NIH, that the Contractor is not in compliance
of 5 CFR Part 1320, Controlling Paperwork recommended. with any of the requirements and/or
Burdens on the Public, and seek the advice (e) In accordance with 45 CFR Part 46, standards stated in paragraphs (a) and (b)
of the HHS operating division or Office of the prospective Contractors being considered for above, the Contracting Officer may
Secretary Reports Clearance Officer to award shall be required to file with OHRP an immediately suspend, in whole or in part,
determine the procedures for acquiring OMB acceptable Assurance of Compliance with the work and further payments under this
clearance. regulations, specifying review procedures contract until the Contractor corrects the
(b) The Contractor shall obtain the required and assigning responsibilities for the noncompliance. Notice of the suspension
OMB clearance through the Project Officer protection of human subjects. The initial and may be communicated by telephone and
before expending any funds or making public continuing review of a research project by an confirmed in writing. If the Contractor fails
contracts for the collection of data. After institutional review board shall assure that to complete corrective action within the
receiving OMB clearance, the Contracting the rights and welfare of the human subjects period of time designated in the Contracting
Officer shall provide the Contractor the involved are adequately protected, that the Officer’s written notice of suspension, the
written authority to expend funds and risks to the subjects are reasonable in relation Contracting Officer may, in consultation with
proceed with the collection of information. to the potential benefits, if any, to the OHRP, NIH, terminate this contract in a
The Contractor must allow at least 120 days subjects and the importance of the whole or in part, and the Contractor’s name
for OMB clearance. Excessive delays caused knowledge to be gained, and that informed may be removed from the list of those
by the Government which arise out of causes consent will be obtained by methods that are contractors with approved Health and
beyond the control and without the fault or adequate and appropriate. HHS regulations Human Services Human Subject Assurances.
negligence of the Contractor will be for the protection of human subjects (45 CFR
considered in accordance with the Excusable Part 46), information regarding OHRP (End of clause)
Delays or Default clause of this contract. registration and assurance requirements/
processes, and OHRP contact information can
(End of clause) be accessed at the OHRP Web site: http:// as follows:
113. Revise section 352.270–8 to read www.hhs.gov/ohrp/.
352.270–9 Care of laboratory animals.
as follows: (f) It is recommended that OHRP be
consulted for advice or guidance concerning (a) Include the following provision in
352.270–8 Protection of human subjects. either regulatory requirements or ethical solicitations expected to involve
(a) Include the following provision in issues pertaining to research involving vertebrate animals:
solicitations expected to involve human human subjects.
subjects: Notice to Offerors of Requirement for
(End of provision) Compliance with the Public Health Service
Notice to Offerors of Requirements of 45 CFR (b) Include the following clause in Policy on Humane Care and Use of
Part 46, Protection of Human Subjects solicitations and resultant contracts Laboratory Animals (January 2006)
(January 2006) involving human subjects: The PHS Policy on Humane Care and Use
Protection of Human Subjects (January 2006) of Laboratory Animals by Awardee
(a) Copies of the Department of Health and Institutions establishes a number of
Human Services (HHS) regulations for the (a) The Contractor agrees that the rights requirements for research activities involving
protection of human subjects, 45 CFR Part 46, and welfare of human subjects involved in animals. Before award may be made to an
are available from the Office for Human research under this contract shall be applicant organization, the organization shall
Research Protections (OHRP), Bethesda, protected in accordance with 45 CFR Part 46 file, with the Office of Laboratory Animal
Maryland 20892. The regulations provide a and with the Contractor’s current Assurance Welfare (OLAW), National Institutes of
systematic means, based on established of Compliance on file with the Office for Health (NIH), a written Animal Welfare
ethical principles, to safeguard the rights and Human Research Protections (OHRP), Assurance which commits the organization
welfare of individuals who participate as National Institutes of Health (NIH). The to comply with the provisions of the PHS
subjects in research activities supported or Contractor further agrees to provide Policy on Humane Care and Use of
conducted by HHS. certification at least annually that the Laboratory Animals by Awardee Institutions,
(b) The regulations define a human subject Institutional Review Board has reviewed and the Animal Welfare Act, and the Guide for
as a living individual about whom an approved the procedures, which involve the Care and Use of Laboratory Animals
investigator (whether professional or student) human subjects in accordance with 45 CFR prepared by the Institute of Laboratory
conducting research obtains data through Part 46 and the Assurance of Compliance. Animal Resources. In accordance with the
intervention or interaction with the (b) The Contractor shall bear full PHS Policy on Humane Care and Use of
individual, or identifiable private responsibility for the performance of all work Laboratory Animals by Awardee Institutions,
information. The regulations extend to the and services involving the use of human applicant organizations must establish a
use of human organs, tissue, and body fluids subjects under this contract in a proper committee, qualified through the experience
from individually identifiable human manner and as safely as is feasible. The and expertise of its members, to oversee the
subjects as well as to graphic, written, or parties hereto agree that the Contractor institution’s animal program, facilities and
recorded information derived from retains the right to control and direct the procedures. No award involving the use of
individually identifiable human subjects. performance of all work under this contract. animals shall be made unless OLAW
The use of autopsy materials is governed by Nothing in this contract shall be deemed to approves the Animal Welfare Assurance.
applicable State and local law and is not constitute the Contractor or any Prior to award, the Contracting Officer will
directly regulated by 45 CFR Part 46. subcontractor, agent or employee of the notify Contractor(s) selected for projects that
(c) Activities in which the only Contractor, or any other person, organization, involve live vertebrate animals that an
involvement of human subjects will be in one institution, or group of any kind whatsoever, Animal Welfare Assurance is required. The
or more of the categories set forth in 45 CFR as the agent or employee of the Government. Contracting Officer will request that OLAW
46.101(b)(1–6) are exempt from coverage. The Contractor agrees that it has entered into negotiate an acceptable Animal Welfare
(d) Inappropriate designations of the this contract and will discharge its Assurance with those Contractor(s). For
noninvolvement of human subjects or of obligations, duties, and undertakings and the further information, contact OLAW at NIH,
exempt categories of research in a project work pursuant thereto, whether requiring Bethesda, Maryland 20892 (301–496–7163).
may result in delays in the review of a professional judgment or otherwise, as an

proposal. The OPDIV will make a final independent contractor without imputing (End of provision)
determination of whether the proposed liability on the part of the Government for the
activities are covered by the regulations or acts of the Contractor or its employees. (b) Include the following clause in all
are in an exempt category, based on the (c) If at any time during the performance solicitations and resultant contracts
information provided in the proposal. In of this contract, the Contracting Officer involving research on vertebrate
doubtful cases, prior consultation with determines, in consultation with the OHRP, animals:
Care of Live Vertebrate Animals (January Anti-Lobbying (January 2006) Pro-Children Act of 1994 (January 2006)
2006) Pursuant to the current HHS annual Public Law 103–227, Title X, Part C, also
(a) Before undertaking performance of any appropriations act, except for normal and known as the Pro-Children Act of 1994 (Act),
contract involving animal related activities, recognized executive-legislative 20 U.S.C. 7183, imposes restrictions on
the Contractor shall register with the relationships, the Contractor shall not use smoking in facilities where certain federally
Secretary of Agriculture of the United States any HHS contract funds for (i) publicity or funded children’s services are provided. The
in accordance with 7 U.S.C. 2136 and 9 CFR propaganda purposes; (ii) the preparation, Act prohibits smoking within any indoor
sections 2.25 through 2.28. The Contractor distribution, or use of any kit, pamphlet, facility (or portion thereof), whether owned,
shall furnish evidence of the registration to booklet, publication, radio, television or leased, or contracted for, that is used for the
the Contracting Officer. video presentation designed to support or routine or regular provision of (i)
(b) The Contractor shall acquire vertebrate defeat legislation pending before the kindergarten, elementary, or secondary
animals used in research from a dealer Congress or any State legislature, except in education or library services or (ii) health or
licensed by the Secretary of Agriculture presentation to the Congress or any State day care services that are provided to
under 7 U.S.C. 2133 and 9 CFR Sections 2.1– legislature itself; or (iii) payment of salary or children under the age of 18. The statutory
2.11, or from a source that is exempt from expenses of the Contractor, or any agent prohibition also applies to indoor facilities
licensing under those sections. acting for the Contractor, related to any that are constructed, operated, or maintained
(c) The Contractor agrees that the care and activity designed to influence legislation or with Federal funds.
use of any live vertebrate animals used or appropriations pending before the Congress By acceptance of this contract or order, the
intended for use in the performance of this or any State legislature. Contractor agrees to comply with the
contract will conform with the PHS Policy on requirements of the Act. The Act also applies
Humane Care of Use of Laboratory Animals, (End of Clause) to all subcontracts awarded under this
the current Animal Welfare Assurance, the contract for the specified children’s services.
Guide for the Care and Use of Laboratory 352.270–11 Privacy Act. Accordingly, the Contractor shall ensure that
Animals prepared by the Institute of The following clause shall be used as each of its employees, and any subcontractor
Laboratory Animal Resources and the prescribed in 324.103(a): staff, is made aware of, understand, and
pertinent laws and regulations of the United comply with the provisions of the Act.
States Department of Agriculture (see 7 Privacy Act (January 2006) Failure to comply with the Act may result
U.S.C. 2131 et seq. and 9 CFR Subchapter A, This contract requires the Contractor to in the imposition of a civil monetary penalty
Parts 1–4). In case of conflict between perform one or more of the following: (a) in an amount not to exceed $1,000 for each
standards, the more stringent standard shall Design; (b) develop; or (c) operate a Federal violation and/or the imposition of an
be used. agency system of records to accomplish an administrative compliance order on the
(d) If at any time during performance of agency function in accordance with the responsible entity. Each day a violation
this contract, the Contracting Officer Privacy Act of 1974 (Act) (5 U.S.C. continues constitutes a separate violation.
determines, in consultation with the Office of 552a(m)(1)) and applicable agency (End of clause)
Laboratory Animal Welfare (OLAW), regulations. The term ‘‘system of records’’
National Institutes of Health (NIH), that the means a group of any records under the 352.270–13 Tobacco-free facilities.
Contractor is not in compliance with any of control of any agency from which
the requirements and/or standards stated in
Insert the following clause in all new
information is retrieved by the name of the
paragraphs (a) through (c) above, the individual or by some identifying number,
solicitations and resultant contracts and
Contracting Officer may immediately symbol, or other identifying particular orders (including construction) and all
suspend, in whole or in part, work and assigned to the individual. modifications resulting from the
further payments under this contract until Violations of the Act by the Contractor exercise of an option under a contract or
the Contractor corrects the noncompliance. and/or its employees may result in the order, regardless of dollar value, where
Notice of the suspension may be imposition of criminal penalties (5 U.S.C. some or all of the Contractor’s
communicated by telephone and confirmed 552a(i)). The Contractor shall ensure that performance, will take place on HHS
in writing. If the Contractor fails to complete each of its employees knows the prescribed
corrective action within the period of time
properties. This clause is not required to
rules of conduct and that each employee is be included if contract or order
designated in the Contracting Officer’s aware that he/she is subject to criminal
written notice of suspension, the Contracting penalties for violation of the Act to the same
performance requires only that
Officer may, in consultation with OLAW, extent as HHS employees. These provisions Contractor staff attend occasional
NIH, terminate this contract in whole or in also apply to all subcontracts awarded under meetings on HHS properties. In this
part, and the Contractor’s name may be this contract which require the design, case, Contractor employees are
removed from the list of those contractors development or operation of the designated considered ‘‘visitors.’’ Further, for any
with approved PHS Animal Welfare system(s) of records (5 U.S.C. 552a(m)(1)). proposed or existing construction
Assurances. The contract work statement: (a) Identifies contract or order, the Contracting
Note: The Contractor may request the system(s) of records and the design, Officer should coordinate any
registration of its facility and a current listing development, or operation work to be exceptions to the policy raised by an
of licensed dealers from the Regional Office performed by the Contractor; and (b)
specifies the disposition to be made of such
incumbent or potential Contractor based
of the Animal and Plant Health Inspection on union or collective bargaining
Service (APHIS), USDA, for the region in records upon completion of contract
which its research facility is located. The performance. agreements with the designated OPDIV
location of the appropriate APHIS Regional tobacco-free policy contact point for
(End of clause) final disposition.
Office, as well as information concerning this
program may be obtained by contacting the 352.270–12 Pro-Children Act. Tobacco-Free Facilities (January 2006)
Animal Care Staff, USDA/APHIS, 4700 River
Road, Riverdale, Maryland 20737.
Insert the following clause in all In accordance with Department of Health
solicitations and resultant contracts and and Human Services (HHS) policy, the
(End of clause) orders, regardless of dollar amount, for Contractor and its staff are prohibited from
(i) kindergarten, elementary, or using tobacco products of any kind (e.g.,
115. Add sections 352.270–10 through
secondary education or library services cigarettes, cigars, pipes, and smokeless

352.270–19 to read as follows: tobacco) while on any HHS property,
or (ii) health or day care services that including use in personal or company
352.270–10 Anti-lobbying. are provided to children under the age vehicles operated by Contractor employees
Insert the following clause in all of 18 on a routine or regular basis while on an HHS property. This policy also
solicitations and resultant contracts pursuant to the Pro-Children Act of applies to all subcontracts awarded under the
expected to exceed $100,000: 1994: contract or order.
The term ‘‘HHS properties’’ includes all Restriction on Use of Human Subjects that are not considered R&D but that
properties owned, controlled and/or leased (January 2006) support extramural R&D activities
by HHS when totally occupied by HHS, Pursuant to 45 CFR Part 46, Protection of (commonly referred to as ‘‘extramural
including all indoor and outdoor areas of Human Research Subjects, the Contractor R&D support’’) are OR are not included.
such properties. Where HHS only partially shall not expend funds under this award for
occupies such properties, it includes all research involving human subjects or engage Salary Rate Limitation (January 2006)
HHS-occupied interior space. Where HHS in any human subjects research activity prior Pursuant to the applicable HHS
leases space in a multi-occupant building or to the receipt by the Contracting Officer of a appropriations acts cited in the table below,
complex, the tobacco-free HHS policy will certification that the research has been the Contractor shall not use contract funds to
apply to the maximum area permitted by law reviewed and approved by the Institutional pay the direct salary of an individual at a rate
and compliance with the provisions of any Review Board (IRB) designated under the in excess of the salary level in effect on the
current lease agreements. Contractor’s Federal-wide assurance of
The Contractor shall ensure that each of its date the expense is incurred as shown in the
compliance. This restriction applies to all
employees, and any subcontractor staff, is table below.
collaborating sites, whether domestic or
made aware of, understand, and comply with foreign, and subcontractors. The Contractor For purposes of the salary limitation, the
this policy. must ensure compliance by collaborators and terms ‘‘direct salary,’’ ‘‘salary,’’ and
subcontractors. ‘‘institutional base salary’’ have the same
(End of clause) meaning and are collectively referred to as
(End of clause) ‘‘direct salary’’ in this clause. An individual’s
352.270–14 Restriction on use of human direct salary is the annual compensation that
subjects. 352.270–15 Salary rate limitation. the Contractor pays for an individual’s
Insert the following clause in all new appointment whether that individual’s time
If the Contractor has an approved NIH, SAMHSA, and AHRQ solicitations is spent on research, teaching, patient care,
Federal-wide assurance of compliance and resultant contracts and orders or other activities. Direct salary excludes any
in place, but the certification that the (except fixed-price completion income that an individual may be permitted
Institutional Review Board (IRB) contracts) and modifications of existing to earn outside of duties to the Contractor.
designated under the assurance has contracts for projects that support Direct salary also excludes fringe benefits,
reviewed and approved the research extramural activities. Projects that overhead, and general and administrative
cannot be completed prior to contract support extramural activities include expenses (also referred to as indirect costs or
award because definite plans for extramural R&D, SAMHSA’s mission- facilities and administrative [F&A] costs).
involvement of human subjects are not related requirements, and those The salary rate limitation also applies to
set forth in the proposal (e.g., projects in individuals performing under subcontracts.
activities commonly referred to as
which human subjects’ involvement However, it does not apply to fees paid to
‘‘extramural R&D support.’’ consultants. If this is a multiple-year
will depend upon completion of OR contract, it may be subject to unilateral
instruments, prior animal studies, or Insert the following clause in all new modification by the Contracting Officer to
purification of compounds), the award NIH, SAMHSA, and AHRQ solicitations ensure that an individual is not paid at a rate
may be made without the requisite and resultant contracts (except fixed- that exceeds the salary rate limitation
certification as long as the contract is price completion contracts) and provision established in the HHS
appropriately conditioned. Under these modifications of existing contracts for appropriations act in effect when the expense
conditions, insert the following clause extramural R&D and SAMHSA’s is incurred regardless of the rate initially
in applicable contracts: mission-related requirements. Projects used to establish contract funding.
Salary
limitation
Public law Period covered (based on
executive
level I)
108–447, Div F, Title II, General Provisions, Section 204 .......................................... 10/01/05–12/31/05 .................................... $180,100
109–149, General Provisions, Section 204 ................................................................. 01/01/06–until revised ............................... 183,500
Executive Level salaries for the current and Native American Graves Protection and Contractor’s discovery notice, the Contracting
prior periods can be found at the following Repatriation Act (January 2006) Officer will notify the appropriate authorities
Web site: http://www.opm.gov/oca/05tables/ Public Law 101–601, dated November 16, as required by the Act.
html/ex.asp. Click on ‘‘Salaries and Wages’’ 1990, also known as the Native American Unless otherwise specified by the
and then scroll to the bottom of the page to Graves Protection and Repatriation Act (Act), Contracting Officer, the Contractor may
select the desired period. imposes certain responsibilities on resume activity in the area on the 31st
individuals and organizations when they calendar day following the date that the
discover Native American cultural items appropriate authorities certify receipt of the
(End of Clause) discovery notice. The date that the
(including human remains) on Federal or
352.270–16 Native American Graves tribal lands. appropriate authorities certify receipt of the
In the event the Contractor discovers discovery notice and the date on which the
Protection and Repatriation Act.
Native American cultural items (including Contractor may resume activities shall be
Insert the following clause in any human remains, associated funerary objects, provided to the Contractor by the Contracting
solicitation and resultant contract or unassociated funerary objects, sacred objects Officer.
order that requires performance on and cultural patrimony), as defined in the
(End of clause)
Act during contract performance, the

tribal lands and all solicitations and
Contractor shall: (i) Immediately cease 352.270–17 Crime Control Act—Reporting
resultant contracts or orders for activity in the area of the discovery; (ii)
construction on Federal or tribal lands, of child abuse.
notify the Contracting Officer of the
regardless of dollar amount: discovery; and (iii) make a reasonable effort Insert the following clause in all
to protect the items discovered before solicitations and resultant contracts and
resuming such activity. Upon receipt of the orders, regardless of dollar amount,
where performance will take place on orders, regardless of dollar amount, for and use of information and data by members
Federal land or in a federally-operated all child care services to children under of the public who are not individuals with
(or contracted) facility and that involve the age of 18, including social services, disabilities.
the professions/activities performed by health and mental health care, child This requirement includes the
development, procurement, maintenance,
persons specified in the Crime Control (day) care, education (whether or not and/or use of EIT products/services;
Act of 1990, including, but not limited directly involved in teaching), and therefore, any proposal submitted in
to, physicians, nurses, dentists, health rehabilitative programs covered under response to this solicitation must
care practitioners, optometrists, the Crime Control Act of 1990 (Act): demonstrate compliance with the established
psychologists, emergency medical EIT Accessibility Standards. Information
Crime Control Act of 1990—Requirement for
technicians, alcohol or drug treatment Background Checks (January 2006)
about Section 508 is available at http://
personnel, child care workers and www.section508.gov/.
administrators, emergency medical Public Law 101–647, also known as the
Crime Control Act of 1990 (Act), requires that (End of provision)
technicians and ambulance drivers: all individuals involved with the provision of (b) The following clause shall be used
Crime Control Act of 1990—Reporting of child care services to children under the age in contracts and orders as provided in
Child Abuse (January 2006) of 18 undergo a criminal background check. 339.201–70:
Public Law 101–647, also known as the ‘‘Child care services’’ include, but are not
limited to, social services, health and mental Electronic and Information Technology
Crime Control Act of 1990 (Act), imposes
responsibilities on certain individuals who, health care, child (day) care, education Accessibility (January 2006)
while engaged in a professional capacity or (whether or not directly involved in Pursuant to Section 508 of the
activity, as defined in the Act, on Federal teaching), and rehabilitative programs. Any Rehabilitation Act of 1973 (29 U.S.C. 794d)
land or in a federally-operated (or contracted) conviction for a sex crime, an offense as amended by Pub. L. 105–220 under Title
facility, learn of facts that give the individual involving a child victim, or a drug felony, IV (Rehabilitation Act Amendments of 1998),
reason to suspect that a child has suffered an may be grounds for denying employment or all Electronic and Information Technology
incident of child abuse. for dismissal of an employee providing any (EIT) developed, procured, maintained, and/
The Act designates ‘‘covered of the services listed above. or used under this contract shall be in
professionals’’ as those persons engaged in The Contracting Officer will provide the compliance with the ‘‘Electronic and
professions and activities in eight different necessary information to the Contractor Information Technology Accessibility
categories including, but not limited to, regarding the process for obtaining the Standards’’ set forth by the Architectural and
physicians, dentists, medical residents or background check. The Contractor may hire Transportation Barriers Compliance Board
interns, hospital personnel and a staff person provisionally prior to the (also referred to as the ‘‘Access Board’’) in 36
administrators, nurses, health care completion of a background check, if at all CFR Part 1194. The complete text of Section
practitioners, chiropractors, osteopaths, times prior to the receipt of the background 508 Final Standards can be accessed at
pharmacists, optometrists, podiatrists, check during which children are in the care http://www.access-board.gov/sec508/
emergency medical technicians, ambulance of the newly-hired person, the person is standards.htm.
drivers, alcohol or drug treatment personnel, within the sight and under the supervision of The standards applicable to this
psychologists, psychiatrists, mental health a previously investigated staff person. requirement are [identified in the Statement
professionals, child care workers and By acceptance of this contract or order, the of Work/listed below]: (Select the appropriate
administrators, and commercial film and Contractor agrees to comply with the phrase within the brackets [ ] and complete
photo processors. The Act defines the term requirements of the Act. The Act also applies if necessary and identify location of/provide
‘‘child abuse’’ as the physical or mental to all applicable subcontracts awarded under complete list of applicable provisions. Use
injury, sexual abuse or exploitation, or this contract. Accordingly, the Contractor the Buy accessible wizard at
negligent treatment of a child. shall ensure that each of its employees, and www.buyaccessible.gov if necessary or
Accordingly, any person engaged in a any subcontractor staff, is made aware of, contact your Section 508 Coordinator)
covered profession or activity under an HHS understand, and comply with the provisions Vendors may document conformance using
contract or subcontract, regardless of the of the Act. [attached documentation/industry-standard
purpose of the contract or subcontract, shall
Voluntary Product Accessibility Template at
immediately report a suspected child abuse (End of clause)
incident in accordance with the provisions of http://www.itic.org/archives/articles/
the Act. If a child is suspected of being 352.270–19 Electronic information and 20040506/faq_voluntary_
harmed, the appropriate State Child Abuse technology accessibility. product_accessibility_template_vpat.php]
Hotline, local child protective services (CPS), (select the appropriate phrase within the
(a) The following clause shall be used brackets [ ]). Vendors should provide
or law enforcement agency should be in solicitations as provided in 339.201–
contacted. For more information about where detailed information necessary for
and how to file a report, the Childhelp 70: determining compliance, including defined
USA, National Child Abuse Hotline (1– Electronic and Information Technology contractor-incidental exceptions.
800–4–A–CHILD) should be called. Any Accessibility (January 2006)
covered professional failing to make a timely
(End of clause)
report of such incident shall be guilty of a Section 508 of the Rehabilitation Act of
Class B misdemeanor. 1973 (29 U.S.C. 794d), as amended by Pub. PART 370—SPECIAL PROGRAMS
By acceptance of this contract or order, the L.105–220 under Title IV (Rehabilitation Act AFFECTING ACQUISITION
Contractor agrees to comply with the Amendments of 1998) and the Architectural
requirements of the Act. The Act also applies and Transportation Barriers Compliance 116. Revise section 370.102 to read as
to all applicable subcontracts awarded under Board Electronic and Information (EIT) follows:
this contract. Accordingly, the Contractor Accessibility Standards (36 CFR part 1194),
require that all EIT acquired must ensure 370.102 Responsibilities.
shall ensure that each of its employees, and
any subcontractor staff, is made aware of, that: (a) The Contracting Officer shall
understand, and comply with the provisions (1) Federal employees with disabilities include the clause in 352.270–1 in every
of the Act. have access to and use of information and solicitation and resulting contract when
data that is comparable to the access and use

(End of clause) the statement of work requires the
by Federal employees who are not
individuals with disabilities; and
contractor to conduct meetings,
352.270–18 Crime Control Act— (2) Members of the public with disabilities conferences, or seminars in accordance
Requirement for background checks. seeking information or services from an with 370.101(b).
Insert the following clause in all agency have access to and use of information (b) The Project Officer shall be
solicitations and resultant contracts and and data that is comparable to the access to responsible for obtaining, reviewing,
and approving the contractor’s plan, Office of Human Research Protections 370.303 Notice to offerors.
which is to be submitted in response to (OHRP), shall be required of each (a) Solicitations shall contain the
paragraph (a) of the contract clause in contractor, subcontractor, or cooperating notice to offerors in 352.270–8(a)
352.270–1. A consolidated or master institution having responsibility for whenever contract performance is
plan for contracts requiring numerous human subjects involved in expected to involve human subjects.
meetings, conferences, or seminars will performance of the contract. The HHS (b) IRB approval of proposals
be acceptable. The Project Officer, prior OHRP is responsible for negotiating submitted by institutions having an
to approving the plan, should consult assurances covering all HHS-supported OHRP-approved FWA should be
with the OPDIV or other designated or HHS-conducted activities involving certified in the manner required by
organization responsible for ensuring human subjects. OHRP shall guide instructions for completion of the
compliance with the Architectural Contracting Officers regarding contract proposal; or by completion of
Barriers Act of 1968 and the Americans nonaward or termination of a contract an OMB Form No. 0990–0263,
with Disabilities Act of 1990 to ensure due to inadequate assurance or breach ‘‘Protection of Human Subjects
that the contractor’s plan meets the of assurance for protection of human Assurance Identification/IRB
accessibility requirements of the subjects. Certification/Declaration of Exemption
contract clause. The Project Officer shall 119. Revise section 370.302 to read as (Common Rule); or by letter indicating
ask the responsible organization to follows: the institution’s OHRP-assigned FWA
review, and determine the adequacy of, number, the date of IRB review and
the contractor’s plan, and respond to the 370.302 Types of assurances. approval, and the type of review
Project Officer, in writing, within ten (a) In January 2005, OHRP announced (convened or expedited). The date of
(10) working days of receiving the that the FWA would be the only new IRB approval must not be more than 12
request from the Project Officer. type of assurance accepted for review months prior to the deadline for
117. Amend section 370.205 by and approval by OHRP. Institutions proposal submission.
revising paragraph (a) to read as follows: holding an OHRP-approved Multiple (c) FWAs for contractors,
Project Assurance (MPA) or Cooperative subcontractors, or cooperating
370.205 Tribal preference requirements. institutions generally will not be
(a) Where the work under a contract Project Assurance (CPA) were required
to submit an FWA to OHRP for approval requested prior to determination that a
is to be performed on an Indian contract proposal has been selected for
reservation, the contracting activity may by December 31, 2005, if the institution
is required to have an OHRP-approved negotiation. When an FWA is
supplement the clause set forth in submitted, it provides certification for
352.270–3 by adding specific Indian assurance of compliance. Any Inter-
Institutional Amendment between an the initial contract period. No additional
preference requirements of the Tribe on documentation is required. If the
whose reservation the work is to be OHRP-approved MPA and an affiliate
institution will be deactivated on contract provides for additional years to
performed. The supplemental complete the project, the
requirements shall be jointly developed January 1, 2006 if the affiliate institution
has not obtained its own FWA. Single noncompetitive renewal proposal shall
for the contract by the contracting be certified in the manner described in
activity and the Tribe. Supplemental Project Assurances (SPAs) currently
approved by OHRP will remain in effect the preceding paragraph.
preference requirements must represent 121. Revise section 370.401 to read as
a further implementation of the for the duration of the project and
through all non-competitive award follows:
requirements of section 7(b) of Public
Law 93–638 and must be approved by renewals. An FWA listed in OHRP’s 370.401 Policy.
the affected program director and current ‘‘List of Registered Institutional (a) It is the policy of the Department
approved for legal sufficiency by the Review Boards (IRBs)/Independent of Health and Human Services (HHS)
General Law Division, OGC, or a Ethics Committees (IECs) and Approved that no contract involving live
regional attorney before being added to Assurances’’ is acceptable for the vertebrate animals shall be awarded
a solicitation and resultant contract. purposes of this policy. The list may be until acceptable assurance has been
Any supplemental preference found at http://ohrp.cit.nih.gov/search/ given that the activity will be subject to
requirements to be added to the clause asearch.asp. initial and continuing review by an
in 352.270–3 shall be included in the (b) The OHRP Web site includes links appropriate Institutional Animal Care
solicitation and clearly identified in to instructions and the forms for and Use Committee (IACUC) as
order to insure uniform understanding submitting both a domestic and described in the PHS Policy at IV.B.6.
of the additional requirements by all international FWA at http:// and 7. An applicable Full Animal
prospective bidders or offerors. www.hhs.gov/ohrp/assurances/ Welfare Assurance or Interinstitutional
assurances_index.html. To expedite the Agreement/Assurance, approved by the
* * * * *
118. Revise section 370.301 to read as approval of a FWA, as well as any Office of Laboratory Animal Welfare
follows: update/renewal, the institution shall use (OLAW), National Institutes of Health
the OHRP Electronic Submission (NIH), shall be required of each
370.301 Policy. System. Once an electronic file is contractor, subcontractor, or cooperating
It is the policy of the Department of ‘‘submitted’’ to OHRP, the institution institution having responsibility for
Health and Human Services (HHS) that must fax or mail (do not do both) a copy animal care and use involved in
no contract involving human subjects of the signature page to initiate the performance of the contract (see PHS
shall be awarded until acceptable review process. FWAs shall be mailed to Policy II., IV.A., and V.B.).
assurance has been given that the the OHRP, U.S. Department of Health (b) The OLAW, NIH, is responsible for
activity will be subject to initial and and Human Services, 1101 Wootton negotiating assurances covering all
continuing review by an appropriate Parkway, Suite 200, Rockville, HHS/PHS-supported or HHS/PHS-
Institutional Review Board (IRB) as Maryland 20852, or faxed to OHRP at conducted activities involving the care
described in HHS regulations at 45 CFR 240–453–8202 (do not do both). and use of live vertebrate animals.
46.103. An applicable Federalwide 120. Revise section 370.303 to read as OLAW shall guide Contracting Officers
Assurance (FWA), approved by the HHS follows: regarding adequate animal care, and
use, approval, disapproval, restriction, Room 3B01, Rockville, Maryland 20892, cooperating institutions to negotiate
or withdrawal of approval of assurances as early as possible to secure the necessary assurances and verify IACUC
(see PHS Policy V.A.). necessary assurances. approvals when requested by
122. Revise section 370.402 to read as (c) A contractor providing animal care appropriate HHS/PHS staff.
follows: services at an assured entity, such as a 124. Revise section 370.504 to read as
Government-owned, contractor-operated follows:
370.402 Assurances. (GOCO) site, does not need a separate
(a) Assurances may be one of two assurance because the GOCO site 370.504 Competition.
types: normally covers the contractor services (a) Contracts awarded under the Buy
(1) Full Animal Welfare Assurance in the GOCO site assurance. Indian Act are subject to competition
(AWA). An AWA describes the 123. Revise section 370.403 to read as among Indians or Indian concerns to the
institution’s complete program for the follows: maximum extent that the Contracting
care and use of animals, including but Officer determines is practicable. When
not limited to the facilities, 370.403 Notice to offerors.
competition is determined not to be
occupational health, training, veterinary Solicitations shall contain the notice practicable, a Justification for Other
care, IACUC procedures and lines of to offerors in 352.270–9(a) whenever than Full and Open Competition shall
authority and responsibility. An AWA contract performance is expected to be prepared in accordance with 306.303
listed in OLAW’s list of institutions involve the use of live vertebrate and subsequently retained in the
which have an approved full AWA will animals. contract file.
be considered acceptable for purposes of (a) For offerors having a full AWA on
(b) Solicitations must be synopsized
this policy. file with OLAW, IACUC approval of the
and publicized in FedBizOpps at http://
(2) Interinstitutional Agreement/ use of animals shall be submitted in the
www.fedbizopps.gov and copies of the
Assurance (IAA). An IAA describes the manner required by instructions for
synopses sent to the tribal office of the
arrangements between an offeror and completion of the contract proposal, but
Indian tribal government directly
usually a subcontractor where animal prior to the technical review of the
concerned with the proposed
activities will occur. An IAA is limited proposal. The date of IACUC review and
acquisition as well as to Indian concerns
to the specific award or single project. approval must not be more than 36
and others having a legitimate interest.
(b) The Contracting Officer shall months prior to the deadline for
The synopsis must state that the
forward copies of proposals selected for proposal submission.
acquisition is restricted to Indian firms
negotiation and requiring an assurance (b) Non-assured offerors are not
under the Buy Indian Act.
to the Assurance Branch, Office of required to submit assurances or IACUC
Laboratory Animal Welfare (OLAW), approval with proposals. OLAW will [FR Doc. 06–4763 Filed 5–25–06; 8:45 am]
NIH MSC 7507, 6100 Executive Blvd., contact contractors, subcontractors and BILLING CODE 4151–17–P

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www.knownet.hhs.gov/acquisition/ 301.603–4 Termination or revocation of a 301.603–74 Training policy exception.

9.404(c). FAR 9.406–3(c). If the proposed action A report incorporating the

(c) The instructions, including Counsel. Contracting Officer’s negotiation

(i) * * * (4) When continuity of the evaluation 315.372 Preparation of negotiation

may result in delays in the review of a professional judgment or otherwise, as an

secondary education or library services cigarettes, cigars, pipes, and smokeless

Act during contract performance, the

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