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Office of Acquisition Management and Policy
Acquisition Policy
HHS Acquisition Regulations (HHSAR)
HHS Acquisition Regulation
[Federal Register: January 17, 2001 (Volume 66, Number 11)]
[Rules and Regulations]
[Page 4219-4266]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17ja01-13]
[[Page 4219]]
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Part IV
Department of Health and Human Services
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Office of the Secretary
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48 CFR Chapter 3
Acquistition Regulation Revision; Final Rule
[[Page 4220]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of the Secretary
48 CFR Chapter 3
Acquisition Regulation Revision
AGENCY: Department of Health and Human Services (HHS).
ACTION: Final rule.
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SUMMARY: The Department of Health and Human Services is finalizing its acquisition
regulation (HHSAR) to streamline and simplify it in accordance with the
tenets of the National Performance Review. In doing so, the Department has
eliminated procedural guidance which it believes is too encumbering for
a simplified system and has empowered appropriate levels of management and
contracting personnel with the authorities required for them to successfully
accomplish their mission with the least amount of resistance and oversight.
EFFECTIVE DATE: January 17, 2001.
FOR FURTHER INFORMATION CONTACT: E. S. Lanham, Office of Acquisition Management,
telephone (202) 690-7590.
SUPPLEMENTARY INFORMATION: The HHSAR was published as a proposed rule on
January 8, 1999 (64 FR Vol 5 pps 1343--1390). Comments were received from
several departmental contracting activities and one outside source. All
comments have been analyzed and considered in the formulation of this final
rule.
As a result of the publication
of this regulation, the existing HHSAR at 48 CFR Chapter 3, including Appendix
A, is canceled. Pertinent subject matter from Appendix A has been incorporated
into this version of the HHSAR.
The Department reemphasizes
that it is not making significant amendments to the existing HHSAR. The
amendments being made to the HHSAR concern internal procedural matters which
are administrative in nature, and will not have a major effect on the general
public, or to contractors or offerors of the Department. The majority of
the amendments eliminate procedural guidance no longer deemed necessary,
or change contracting review and approval authorities to situate them at
levels more appropriate to simplification, streamlining, and empowerment.
The Department of Health
and Human Services certifies this document will not have a significant economic
effect on a substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.); therefore, no regulatory flexibility statement
has been prepared. Since this rule conveys existing acquisition policies
or procedures and does not promulgate any new policies or procedures which
would impact the public, it has been determined that this rule will not
have a significant economic effect on a substantial number of small entities,
and , thus, a regulatory flexibility analysis was not performed.
Furthermore, this document
does not contain new information collection requirements needing approval
by the Office of Management and Budget under the Paperwork Reduction Act
of 1995 (44 U.S.C. 3501 et seq.). Existing approvals cited in 48 CFR section
301.106 remain in effect. The provisions of this regulation are issued under
5 U.S.C. 301; 40 U.S.C. 486 (c).
List of Subjects in 48 CFR Parts 301 through 370
Government procurement.
Under the authority of 5
U.S.C. 301; 40 U.S.C. 486(c), the Department of Health and Human Services
revises 48 CFR Chapter 3 as set forth below.
Dated: December 14, 2000.
John J. Callahan,
Assistant Secretary for Management and Budget.
CHAPTER 3--HEALTH AND HUMAN SERVICES
Table of Contents
Subchapter A--General
Part
301--HHS Acquisition Regulation System
302--Definitions of Words and Terms
303--Improper Business Practices and Personal Conflicts of Interest
304--Administrative Matters
Subchapter B--Competition and Acquisition Planning
Part
305--Publicizing Contract Actions
306--Competition Requirements
307--Acquisition Planning
309--Contractor Qualifications
Subchapter C--Contracting Methods and Contract Types
Part
313--Simplified Acquisition Procedures
314--Sealed Bidding
315--Contracting by Negotiation
316--Types of Contracts
317--Special Contracting Methods
Subchapter D--Socioeconomic Programs
Part
319--Small Business Programs
323--Environment, Conservation, Occupational Safety, and Drug-Free Workplace
324--Protection of Privacy and Freedom of Information
325--Foreign Acquisition
Subchapter E--General Contracting Requirements
Part
328--Bonds and Insurance
330--Cost Accounting Standards Administration
332--Contract Financing
333--Protests, Disputes, and Appeals
Subchapter F--Special Categories of Contracting
Part
334--Major System Acquisition
335--Research and Development Contracting
Subchapter G--Contract Management
Part
342--Contract Administration
Subchapter H--Clauses and Forms
Part
352--Solicitation Provisions and Contract Clauses
353--Forms
Subchapter T--HHS Supplementations
Part
370--Special Programs Affecting Acquisition
Subchapter A--General
PART 301--HHS ACQUISITION REGULATION SYSTEM
Subpart 301.1--Purpose, Authority, Issuance
Sec.
301.101 Purpose.
301.103 Authority
301.106 OMB approval under the Paperwork Reduction Act.
Subpart 301.2--Administration
301.270 Executive Committee for Acquisition.
Subpart 301.4--Deviations from the FAR
301.403 Individual deviations.
301.404 Class deviations.
301.470 Procedure.
Subpart 301.6--Career Development, Contracting Authority, and Responsibilities
301.602 Contracting officers.
301.602-3 Ratification of unauthorized commitments.
301.603 Selection, appointment, and termination of appointment.
301.603-1 General.
301.603-2 Selection.
301.603-3 Appointment.
301.603-4 Termination.
301.603-70 Delegation of contracting officer responsibilities.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 301.1--Purpose, Authority, Issuance
301.101 Purpose.
(a) The Department of Health
and Human Services Acquisition Regulation (HHSAR) is issued to establish
uniform acquisition policies and procedures for the Department of Health
and Human
[[Page 4221]]
Services (HHS) which conform to the Federal Acquisition Regulation (FAR)
System.
(b) The HHSAR implements
and supplements the FAR. (Implementing material expands upon or indicates
the manner of compliance with related FAR material. Supplementing material
is new material which has no counterpart in the FAR.)
(c) The HHSAR contains all
formal departmental policies and procedures that govern the acquisition
process or otherwise control contracting relationships between the Department's
contracting offices and contractors.
301.103 Authority.
(b) The HHSAR is prescribed
by the Assistant Secretary for Management and Budget under the authority
of 5 U.S.C. 301 and section 205(c) of the Federal Property and Administrative
Services Act of 1949, as amended (40 U.S.C. 486(c)), as delegated by the
Secretary.
(c) The HHSAR is issued
in the Code of Federal Regulations (CFR) as Chapter 3 of Title 48, Department
of Health and Human Services Acquisition Regulation. It may be referenced
as "48 CFR Chapter 3."
301.106 OMB approval under the Paperwork Reduction Act.
(a) The following OMB control
numbers apply to the information collection and recordkeeping requirements
contained in this chapter:
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OMB control
HHSAR segment No.
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315.4...................................................... 0990-0139
324.70..................................................... 0990-0136
342.7101................................................... 0990-0131
352.224-70................................................. 0990-0137
352.224-70................................................. 0990-0136
352.233-70................................................. 0990-0133
352.270-1.................................................. 0990-0129
352.270-2.................................................. 0990-0129
352.270-3.................................................. 0990-0129
352.270-5.................................................. 0990-0130
352.270-8.................................................. 0990-0128
352.270-9.................................................. 0990-0128
370.1...................................................... 0990-0129
370.2...................................................... 0990-0129
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(b) The OMB control number
"OMB No. 0990-0115" is to be included in the upper right corner
of the first page of all solicitations, purchase orders, and contracts
issued by departmental contracting activities. The number represents approval
of the HHS acquisition process and covers recordkeeping and reporting
requirements which are unique to individual acquisitions (e.g., requirements
contained in specifications, statements of work, etc.).
Subpart 301.2--Administration
301.270 Executive Committee for Acquisition.
(a) The Deputy Assistant
Secretary for Grants and Acquisition Management has established the Executive
Committee for Acquisition (ECA) to assist and facilitate the planning
and development of departmental acquisition policies and procedures and
to assist in responding to other agencies and organizations concerning
policies and procedures impacting the Federal acquisition process.
(b) The ECA consists of
members and alternates from the Office of Acquisition Management, Administration
for Children and Families, Agency for Healthcare Research and Quality,
Health Care Financing Administration, Program Support Center, Centers
for Disease Control and Prevention, Food and Drug Administration, Health
Resources and Services Administration, Indian Health Service, National
Institutes of Health, and Substance Abuse and Mental Health Services Administration.
The ECA is chaired by the Director, Office of Acquisition Management.
All meetings will be held at the call of the Chair, and all activities
will be carried out under the direction of the Chair.
(c) The ECA, to facilitate
the planning, development, and coordination of governmentwide and departmentwide
acquisition policies and procedures, is to:
(1) Advise and assist
the Chair concerning major acquisition policy matters;
(2) Review and appraise,
at appropriate intervals, the overall effectiveness of existing policies
and procedures; and
(3) Review and appraise
the impact of new major acquisition policies, procedures, regulations,
and development on current acquisition policies and procedures.
(d) The Chair will periodically
issue a list of current members and alternates specifying the name, title,
organization, address, and telephone number of each. The member organizations
are responsible for apprising the Chair whenever a new member or alternate
is to be appointed to the ECA, or an organizational change retitles the
individual or organization.
Subpart 301.4--Deviations From the FAR
301.403 Individual deviations.
Requests for individual
deviations to either the FAR or HHSAR shall be prepared in accordance
with 301.470 and forwarded through administrative channels to the Director,
Office of Acquisition Management for review and approval.
301.404 Class deviations.
Requests for class deviations
to either the FAR or HHSAR shall be prepared in accordance with 301.470
and forwarded through administrative channels to the Deputy Assistant
Secretary for Grants and Acquisition Management for review and approval.
301.470 Procedure.
(a) When a contracting
office determines that a deviation is needed, it shall prepare a deviation
request in memorandum form and forward it through administrative channels
to the official designated in 301.403 or 301.404. In an exigency situation,
the contracting office may request a deviation verbally, through normal
acquisition channels, but is required to confirm the request in writing
as soon as possible.
(b) A deviation request
shall clearly and precisely set forth the:
(1) Nature of the needed
deviation;
(2) Identification of
the FAR or HHSAR citation from which the deviation is needed;
(3) Circumstances under
which the deviation would be used;
(4) Intended effect of
the deviation;
(5) Period or applicability;
(6) Reasons which will
contribute to complete understanding and support of the requested deviation.
A copy of pertinent background papers such as a contractor's request should
accompany the deviation request.; and
(7) Suggested wording
for the deviation (if applicable).
Subpart 301.6--Career Development, Contracting Authority, and Responsibilities
301.602 Contracting officers.
301.602-3 Ratification of unauthorized commitments.
(b) Policy. (1) The Government
is not bound by agreements or contractual commitments made to prospective
contractors by persons to whom contracting authority has not been delegated.
However, execution of otherwise proper contracts made by individuals without
contracting authority, or by contracting officers in excess of the limits
of their delegated authority, may be later ratified. The ratification
must be in the form of a written document clearly stating that ratification
of a previously unauthorized act is intended and must be signed by the
head of the contracting activity (HCA).
[[Page 4222]]
(2) The HCA is the official
authorized to ratify an unauthorized commitment (but see paragraph (b)(3)
of this section).
(3) Ratification authority
for actions up to $25,000 may be redelegated by the HCA to the chief of
the contracting office (CCO). No other redelegations are authorized.
(c) Limitations. (5) The
concurrence of legal counsel concerning the payment issue is optional.
(e) Procedures. (1) The
individual who made the unauthorized contractual commitment shall furnish
the reviewing contracting officer all records and documents concerning
the commitment and a complete written statement of facts, including, but
not limited to: a statement as to why the contracting office was not used,
a statement as to why the proposed contractor was selected, a list of
other sources considered, a description of work to be performed or products
to be furnished, the estimated or agreed contract price, a citation of
the appropriation available, and a statement whether the contractor has
commenced performance.
(2) The contracting officer
will review the submitted material, and prepare the ratification document
if he/she determines that the commitment may be ratifiable. The contracting
officer shall forward the ratification document and the submitted material
to the HCA or CCO with any comments or information which should be considered
in evaluation of the request for ratification. If legal review is desirable,
the HCA or CCO will coordinate the request for ratification with the Office
of General Counsel, Business and Administrative Law Division.
(3) If ratification is
authorized by the HCA or CCO, the file will be returned, along with the
ratification document, to the contracting officer for issuance of a purchase
order or contract, as appropriate.
301.603 Selection, appointment, and termination of appointment.
301.603-1 General.
(a) The appointment and
termination of appointment of contracting officers shall be made by the
head of the contracting activity (HCA). This authority is not delegable.
(b) The contracting officer
appointment document for personnel in the GS-1101, 1102, and 1105 series,
as well as personnel in any other series who will obligate the Government
to the expenditure of funds in excess of the micro-purchase threshold,
shall be the Standard Form (SF)--1402, Certificate of Appointment. The
HCA may determine an alternative appointment document for appointments
at or below that threshold. Changes to appointments shall be made by issuing
a new appointment document. Each appointment document shall be prepared
and maintained in accordance with FAR 1.603-1 and shall state the limits
of the individual's authority.
(c) An individual must
be certified at the appropriate level under the HHS Acquisition Certification
Program as a prerequisite to being appointed as a contracting officer
with authority to obligate funds in excess of the micro-purchase threshold
(see 301.603-3(a)). The HCA will determine and require appropriate training
for individuals appointed as contracting officers at lower dollar levels.
An individual shall be appointed as a contracting officer only in instances
where a valid organizational need can be demonstrated. Factors to be considered
in assessing the need for an appointment of a contracting officer include
volume of actions, complexity of work, and structure of the organization.
301.603-2 Selection.
Nominations for appointment
of contracting officers shall be submitted to the HCA through appropriate
organizational channels for review. The nomination package, which is usually
initiated by the prospective contracting officer's immediate supervisor,
shall normally include the nominee's current personal qualifications statement
or job history, including the information required by FAR 1.603-2, a copy
of his/her most recent performance appraisal, and a copy of the certificate
issued under the HHS Acquisition Certification Program indicating the
nominee's current certification level, if applicable. The HCA will determine
the documentation required, consistent with FAR 1.603-2, when the resulting
appointment and authority will not exceed the micro-purchase threshold.
301.603-3 Appointment.
(a) Contracting officer
appointments shall be made at levels commensurate with nominees' certification
levels as follows:
(1) Level I--Purchasing
Agent--Required for all personnel in the GS-1102 and 1105 series having
signature authority for simplified acquisitions, including orders from
GSA sources over the micro-purchase threshold.
(2) Level II--Acquisition
Official--Required for all personnel in the GS-1102 series. Sufficient
for delegation of contracting officer authority up to $500,000.
(3) Level III--Senior
Acquisition Official--Required for all personnel in the GS-1102 series
for delegation of contracting officer authority above $500,000.
(4) Level IV--Acquisition
Manager--Required for delegation of pre-
award review and approval authority as specified in subpart 304.71.
(b) If it is essential
to appoint an individual who does not fully meet the certification requirements
of this section for the contracting officer authority sought, an interim
appointment may be granted by the HCA. Interim appointments may not exceed
one (1) year in total, and shall not be granted unless the individual
can meet the certification requirements within one year from the date
of appointment. If the certification requirements are not met by that
date, the appointment will automatically terminate and cannot be renewed.
301.603-4 Termination.
Termination of contracting
officer appointments shall be accomplished in accordance with FAR 1.603-4.
301.603-70 Delegation of contracting officer responsibilities.
(a) Contracting officer
responsibilities which do not involve the obligation (or deobligation)
of funds or result in establishing or modifying contractual provisions
may be delegated by the contracting officer by means of a written memorandum
which clearly delineates the delegation and its limits.
(b) Contracting officers
may designate individuals as ordering officials to make purchases or place
orders under blanket purchase agreements, indefinite delivery contracts,
or other pre-established mechanisms. Ordering officials, including those
under NIH's DELPRO, are not contracting officers.
(c) Project officers are
required to complete the training specified in 307.170, while ordering
officials and others should receive sufficient instruction from the contracting
officer to ensure the appropriate exercise of the responsibilities and
knowledge of their limitations.
PART 302--DEFINITIONS OF WORDS AND TERMS
Subpart 302.1--Definitions
Sec.
302.101 Definitions.
Subpart 302.2--Definitions Clause
302.201 Contract clause.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
[[Page 4223]]
Subpart 302.1--Definitions
302.101 Definitions.
Chief of the contracting
office (CCO) is a mid-level management official in charge of a contracting
office who controls and oversees the daily contracting operation of an
Operating Division (OPDIV) or major component of an OPDIV. The CCO is
subordinate to the head of the contracting activity, and is located at
a management level above other contracting personnel, usually as a branch
chief or division director.
Head of the agency or
agency head, unless otherwise specified, means the head of the Operating
Division (OPDIV) for ACF, AHRQ, HCFA, PSC, CDCP, FDA, HRSA, IHS, NIH,
and SAMHSA, or the Assistant Secretary for Management and Budget (ASMB)
for the Office of the Secretary (OS).
Head of the contracting
activity (HCA) is defined in terms of certain organizational positions
within the Office of Grants and Acquisition Management (OGAM), Administration
for Children and Families (ACF), Agency for Healthcare Research and Quality
(AHRQ), Health Care Financing Administration (HCFA), Program Support Center
(PSC), Centers for Disease Control and Prevention (CDCP), Food and Drug
Administration (FDA), Health Resources and Services Administration (HRSA),
Indian Health Service (IHS), National Institutes of Health (NIH), and
Substance Abuse and Metal Health Services Administration (SAMHSA), as
follows:
OGAM-OS--Director, Office of Acquisition Management
ACF--Director, Division of Acquisition Management
AHRQ--Director, Division of Contracts Management
HCFA--Director, Acquisition and Grants Group
PSC--Director, Division of Acquisition Management
CDCP--Director, Procurement and Grants Office
FDA--Director, Policy, Evaluation and Support Staff, Office of Facilities,
Acquisition, and Central Services
HRSA--Director, Division of Grants and Procurement Management
IHS--Director, Division of Acquisitions and Grants Management
NIH--Director, Office of Acquisition Management and Policy
SAMHSA--Director, Division of Contracts Management
In addition, the Deputy
Assistant Secretary for Grants and Acquisition Management (DASGAM) is
designated as an HCA. Each HCA is responsible for conducting an effective
and efficient acquisition program. Adequate controls shall be established
to assure compliance with applicable laws, regulations, procedures, and
the dictates of good management practices. Periodic reviews shall be conducted
and evaluated by qualified personnel, preferably assigned to positions
other than in the contracting office being reviewed, to determine the
extent of adherence to prescribed policies and regulations, and to detect
a need for guidance and/or training. The HCA shall be certified, or be
certifiable, at Level IV of the HHS Acquisition Certification Program.
Individuals appointed as HCA's who do not meet the Level IV requirements
shall have one year from the date of appointment to obtain Level IV certification.
The heads of contracting activities may redelegate their HCA authorities
to the extent that redelegation is not prohibited by the terms of their
respective delegations of authority, by law, by the Federal Acquisition
Regulation, by the HHS Acquisition Regulation, or by other regulations.
However, HCA and other contracting approvals and authorities shall not
be redelegated below the levels specified in the HHS Acquisition Regulation
or, in the absence of coverage in the HHS Acquisition Regulation, the
Federal Acquisition Regulation. To ensure proper control of redelegated
acquisition authorities, HCA's shall maintain a file containing successive
delegations of HCA authority through and including the contracting officer
level. Personnel delegated responsibility for acquisition functions must
possess a level of experience, training, and ability commensurate with
the complexity and magnitude of the acquisition actions involved.
Subpart 302.2--Definitions clause
302.201 Contract clause.
The FAR clause, Definitions,
at 52.202-1 shall be used as prescribed in FAR 2.201, except as follows:
(a) Paragraph (a) at 352.202-1
shall be used in place of paragraph (a) of the FAR clause.
(b) Paragraph (h), or
its alternate, at 352.202-1 shall be added to the end of the FAR clause.
Use paragraph (h) when a fixed-priced contract is anticipated; use the
alternate to paragraph (h) when a cost-reimbursement contract is anticipated.
This is an authorized deviation.
PART 303--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
Subpart 303.1--Safeguards
Sec.
303.101 Standards of conduct.
303.101-3 Agency regulations.
Subpart 303.2--Contract Gratuities to Government Personnel
303.203 Reporting suspected violations of the Gratuities clause.
Subpart 303.3--Reports of Suspected Antitrust Violations
303.303 Reporting suspected antitrust violations.
Subpart 303.4--Contingent Fees
303.405 Misrepresentations or violations of the Covenant Against Contingent
Fees.
Subpart 303.6--Contracts With Government Employees or Organizations Owned
or Controlled by Them
303.602 Exceptions.
Subpart 303.7--Voiding and Rescinding Contracts
303.704 Policy.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 303.1--Safeguards
301.101 Standards of conduct.
303.101-3 Agency regulations.
The Department of Health
and Human Services' Standards of Conduct are prescribed in 45 CFR part
73.
Subpart 303.2--Contractor Gratuities to Government Personnel
303.203 Reporting suspected violations of the Gratuities clause.
Departmental personnel
shall report suspected violations of the Gratuities clause in accordance
with subpart M, Reporting Violations, of 45 CFR part 73. Refer to subpart
B, Gifts from Outside Sources, (5 CFR 2635.201) for an explanation regarding
what is prohibited and what is permitted.
Subpart 303.3--Reports of Suspected Antitrust Violations
303.303 Reporting suspected antitrust violations.
A copy of each report
of suspected antitrust violations submitted to the Attorney General by
the HCA shall also be submitted to the Director, Office of Acquisition
Management.
Subpart 303.4--Contingent Fees
303.405 Misrepresentations or violations of the Covenant Against Contingent
Fees.
(c) Reports shall be made
promptly to the contracting officer.
(d)(4) Suspected fraudulent
or criminal matters to be reported to the Department of Justice shall
be prepared in letter format and forwarded through acquisition channels
to the head of the contracting activity for signature. The letter must
contain all pertinent facts
[[Page 4224]]
and background information considered by the contracting officer and chief
of the contracting office that led to the decision that fraudulent or
criminal matters may be present. A copy of the signed letter shall be
sent to the Director, Office of Acquisition Management.
Subpart 303.6--Contracts With Government Employees or Organizations Owned
or Controlled by Them
303.602 Exceptions.
Approval of an exception
to the policy stated in FAR 3.601 shall be made by the HCA (not delegable).
Subpart 303.7--Voiding and Rescinding Contracts
303.704 Policy.
For purposes of implementing
FAR subpart 3.7, the authorities granted to the "agency head or designee"
shall be exercised by the HCA (not delegable).
PART 304--ADMINISTRATIVE MATTERS
Subpart 304.6--Contract Reporting
Sec.
304.602 Federal Procurement Data System.
Subpart 304.8--Government Contract Files
304.804-70 Contract closeout audits.
Subpart 304.70--Acquisition Instrument Identification Numbering System
304.7000 Scope of subpart.
304.7001 Numbering acquisitions.
Subpart 304.71--Review and Approval of Proposed Contract Awards
304.7100 Policy.
304.7101 Procedures.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 304.6--Contracting Reporting
304.602 Federal Procurement Data System (FPDS).
The Departmental Contracts
Information System (DCIS) represents the Department's implementation of
the FPDS. All departmental contracting activities are required to participate
in the DCIS and follow the procedures stated in the Enhanced Departmental
Contracts Information System Manual and amendments to it. The HCA (not
delegable) shall ensure that all required contract information is collected,
submitted, and received into the DCIS on or before the 15th of each month
for all appropriate contract and contract modifications award of the prior
month.
Subpart 304.8--Government Contract Files
304.804-70 Contract closeout audits.
(a) Contracting officers
shall rely, to the maximum extent possible, on non-Federal single audits
to close physically completed cost-reimbursement contracts with colleges
and universities, hospitals, non-profit firms, and State and local governments.
In addition, where appropriate, a sample of these contractors may be selected
for audit, in accordance with the decision-making process set forth in
the following paragraph (b).
(b) Contracting officers
shall request contract closeout audits on physically completed, cost-reimbursement,
for-profit contracts in accordance with the following:
(1) Decisions on: The
need for and allocation of contract audit resources and services; the
selection of contracts or contractors to be audited; the identification
of the audit agency to perform the audit; and the type or scope of closeout
audit to be conducted, shall be made by the Office of Inspector General
(OIG) and Office of Grants and Acquisition Management, in consultation
with the Department's Contract Audit Users Work Group. These decisions
shall be based upon the needs of the customer, risk analysis, return on
investment, and the availability of audit resources. When an audit is
warranted prior to closing a contract, the contracting officer shall submit
the audit request to the OIG's Office of Audit via the appropriate OPDIV
representative on the Contract Audit Users Work Group.
(2) Except where a contracting
officer suspects misrepresentation or fraud, contract closeout field audits
shall not be requested if the cost of performance is likely to exceed
the potential cost recovery. Contracts that are not selected for a field
audit may be closed on the basis of a desk review, subject to any later
on-site audit findings. The release executed by the contractor shall contain
the following statement:
The Contractor agrees,
pursuant to the clause in this contract entitled "Allowable Cost"
or "Allowable Cost and Fixed Fee" (as appropriate), that the
amount of any sustained audit exceptions resulting from any audit made
after final payment shall be refunded to the Government."
Subpart 304.70--Acquisition Instrument Identification Numbering System
304.7000 Scope of subpart.
This subpart prescribes
policy and procedures for assigning identifying numbers to contracts and
related instruments, including solicitation documents, purchase orders,
and delivery orders. The HCA (not delegable) is responsible for establishing
the numbering system within the OPDIV.
304.7001 Numbering acquisitions.
(a) Acquisitions which
require numbering. The following acquisitions shall be numbered in accordance
with the system prescribed in paragraphs (b) and (c) of this section:
(1) Contracts, including
letter contracts and task orders under basic ordering agreements, which
involve the payment of $2,500 or more for the acquisition of personal
property or nonpersonal services. (The number assigned to a letter contract
shall be assigned to the superseding definitized contract).
(2) Contracts which involve
the payment of $2,000 or more for construction (including renovation or
alteration).
(3) Contracts which involve
more than one payment regardless of amount.
(4) Requests for proposals
and invitations for bids.
(5) Requests for quotations.
(6) Basic ordering agreements.
(b) Numbering system for
contracts. All contracts which require numbering (paragraphs (a)(1) through
(3) of this section) shall be assigned a number consisting of the following:
(1) The three digit identification
code assigned to the contracting office by the Office of Grants and Acquisition
Management (OGAM).
(2) A two digit fiscal
year designation; and
(3) A four digit serial
number. For example, the initial contract executed by the Office of Acquisition
Management, OS, for fiscal year 1996 would be numbered 100-96-0001. While
it is required that a different series of four digit serial numbers be
used for each fiscal year, serial numbers assigned need not be sequential.
(c) Numbering system for
other acquisitions. The HCA is responsible for developing a numbering
system for the acquisitions other than contracts listed in paragraphs,
(a)(4) through (a)(6) of this section, and any other types of acquisitions
that may be used.
(d) Assignment of identification
codes. Each contracting office of the Department shall be assigned a three
digit identification code by the OGAM. Requests for the assignment of
codes for newly established contracting offices shall be submitted by
the headquarters acquisition staff office of the contracting activity
to the OGAM. A listing of the
[[Page 4225]]
contracting office identification codes currently in use is contained
in the Enhanced Departmental Contracts Information System Manual.
Subpart 304.71--Review and Approval of Proposed Contract Awards
304.7100 Policy.
This subpart requires
each HCA (not delegable) to establish review and approval procedures for
proposed contracts actions to ensure that:
(a) Contract awards are
in conformance with law, established policies and procedures, and sound
business practices;
(b) Contractual documents
properly reflect the mutual understanding of the parties; and
(c) The contracting officer
is informed of deficiencies and items of questionable acceptability, and
corrective action is taken.
304.7101 Procedures.
(a) All contractual documents,
regardless of dollar value, are to be reviewed by the contracting officer
prior to award.
(b) The HCA is responsible
for establishing review and approval procedures and designating acquisition
officials to serve as reviewers. Each HCA is responsible for determining
the criterion (criteria) to be used in determining which contracts are
to be reviewed, and that a sampling of proposed contracts not included
in the "to be reviewed" group are reviewed and approved.
(c) Officials assigned
responsibility for review and approval of contract actions must possess
qualifications in the field of acquisition commensurate with the level
of review performed, and, at a minimum, possess those acquisition skills
expected of a contracting officer. However, if any official is to serve
as the contracting officer and sign the contractual document, the review
and approval function shall be performed by an appropriate official at
least one level above.
PART 305--PUBLICIZING CONTRACT ACTIONS
Subpart 305.2--Synopsis of Proposed Contract Actions
Sec.
305.202 Exceptions.
Subpart 305.3--Synopsis of Contract Awards
305.303 Announcement of contract awards.
Subpart 305.5--Paid Advertisements
305.502 Authority.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 305.2--Synopsis of Proposed Contract Actions
305.202 Exceptions.
(b) When a contracting
office believes that it has a situation where advance notice is not appropriate
or reasonable, it shall prepare a memorandum citing all pertinent facts
and details and send it, through normal acquisition channels, to the Deputy
Assistant Secretary for Grants and Acquisition Management (DASGAM) requesting
relief from synopsizing. The DASGAM shall review the request and decide
whether an exception to synopsizing is appropriate or reasonable. If it
is, the DASGAM shall take the necessary coordinating actions required
by FAR 5.202 (b). Whatever the decision is on the request, the DASGAM
shall promptly notify the contracting office when a determination has
been made.
Subpart 305.3--Synopses of Contract Awards
305.303 Announcement of contract awards.
(a) Public announcement.
Any contract, contract modification, or delivery order in the amount of
$3 million or more shall be reported by the contracting officer to the
Office of the Deputy Assistant Secretary for Legislation (Congressional
Liaison), Room 406G, Hubert H. Humphrey Building. Notification shall be
accomplished by providing a copy of the contract or award document face
page to the referenced office prior to the day of award, or in sufficient
time to allow for an announcement to be made by 5 p.m. Washington, DC
time on the day of award.
Subpart 305.5--Paid Advertisements
305.502 Authority.
The contracting officer
is authorized to publish advertisements, notices, and notices that proposals
are being sought in newspapers and periodicals in accordance with the
requirements and conditions referenced in FAR subpart 5.5.
PART 306--COMPETITION REQUIREMENTS
Subpart 306.2--Full and Open Competition After Exclusion of Sources
Sec.
306.202 Establishing or maintaining alternative sources.
Subpart 306.3--Other Than Full and Open Competition
306.302 Circumstances permitting other than full and open competition.
306.302-1 Only one responsible source and no other supplies or services
will satisfy agency requirements.
306.302-7 Public interest.
306.303 Justification.
306.303-1 Requirements
306.303-2 Content.
306.304 Approval of the justification.
Subpart 306.5--Competition Advocates
306.501 Requirement.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 306.2--Full and Open Competition After Exclusion of Sources
306.202 Establishing or maintaining alternative sources.
(a) The reference to the
agency head in FAR 6.202 (a) shall mean the appropriate competition advocate
cited in 306.501.
(b)(1) The required determination
and findings (D&F) shall be prepared by the contracting officer based
on the data provided by program personnel, and shall be signed by the
appropriate competition advocate. The D&F signatory is not delegable.
Subpart 306.3--Other Than Full and Open Competition
306.302 Circumstances permitting other than full and open competition.
306.302-1 Only one responsible source and no other supplies or services
will satisfy agency requirements.
(a) (2) (ii) Follow-on
contracts for the continuation of major research and development studies
on long-term social and health programs, major research studies, or clinical
trials may be deemed to be available only from the original source when
it is likely that award to any other source would result in unacceptable
delays in fulfilling the Department's or OPDIV's requirements.
(b) Application. (4) When
the head of the program office has determined that a specific item of
technical equipment or parts must be obtained to meet the activity's program
responsibility to test and evaluate certain kinds and types of products,
and only one source is available. (This criterion is limited to testing
and evaluation purposes only and may not be used for initial outfitting
or repetitive acquisitions. Project officers should support the use of
this criterion with citations from their agency's legislation and the
technical rationale for the item of equipment required.)
[[Page 4226]]
306.302-7 Public interest.
(a) Authority. (2) Agency
head, in this instance, means the Secretary.
(c) Limitations. An "approval
package" must be prepared by the contracting officer and staffed
through departmental acquisition channels to the Secretary. The package
shall include a determination and findings for the Secretary to sign that
contains all pertinent information to support justification for exercising
the exemption to competition, and a letter for the Secretary to sign notifying
Congress of the determination to award a contract under the authority
of 41 U.S.C. 253(c)(7).
306.303 Justifications.
306.303-1 Requirements.
(b) Preliminary arrangements
or agreements with the proposed contractor shall have no effect on the
rationale used to support an acquisition for other than full and open
competition.
(f) When a program office
desires to obtain certain goods or services by contract without full and
open competition, it shall, at the time of forwarding the requisition
or request for contract, furnish the contracting office a justification
explaining why full and open competition is not feasible. All justifications
shall be initially reviewed by the contracting officer.
(1) Justifications in
excess of the simplified acquisition threshold shall be in the form of
a separate, self-contained document, prepared in accordance with FAR 6.303
and 306.303, and called a "JOFOC" (Justification for Other Than
Full and Open Competition). Justifications at or below the simplified
acquisition threshold may be in the form of a paragraph or paragraphs
contained in the requisition or request for contract.
(2) Justifications, whether
over or under the simplified acquisition threshold, shall fully describe
what is to be acquired, offer reasons which go beyond inconvenience, and
explain why it is not feasible to obtain competition. The justifications
shall be supported by verifiable facts rather than mere opinions. Documentation
in the justification should be sufficient to permit an individual with
technical competence in the area to follow the rationale.
306.303-2 Content.
(a)(1) The program office
and name, address, and telephone number of the project officer shall also
be included.
(2) This item shall include
project identification such as the authorizing program legislation, to
include citations or other internal program identification data such as
title, contract number, etc.
(3) The description may
be in the form of a statement of work, purchase description, or specification.
A statement is to be included to explain whether the acquisition is an
entity in itself, whether it is one in a series, or part of a related
group of acquisitions.
(c) Each JOFOC shall conclude
with at least signature lines for the project officer, project officer's
immediate supervisor, contracting officer, and approving official.
306.304 Approval of the justification.
(a)(2) The competition
advocates are listed in 306.501. This authority is not delegable.
(3) The competition advocate
shall exercise this approval authority, except where the individual designated
as the competition advocate does not meet the requirements of FAR 6.304
(a)(3)(ii). This authority is not delegable.
(4) The senior procurement
executive of the Department is the Assistant Secretary for Management
and Budget.
(c) A class justification
shall be processed the same as an individual justification.
Subpart 306.5--Competition Advocates
306.501 Requirement.
The Department's competition
advocate is the Deputy Assistant Secretary for Grants and Acquisition
Management. The competition advocates for the Department's primary contracting
officers are as follows:
ACF--Director, Office of Management Services
HCFA--Director, Office of Internal Customer Support
OS--Deputy Assistant Secretary for Grants and Acquisition Management
PSC--Director, Administrative Operations Service
AHRQ--Executive Officer
CDCP--Director, Office of Program Support
FDA--Director, Office of Facilities, Acquisition, and Central Services
HRSA--Associate Administrator for Operations and Management
IHS--Director, Office of Management and Support
NIH--(R&D)--Director, Office of Extramural Research (Other than R&D)--Director,
Office of Intramural Research
SAMHSA--Associate Administrator for Management
PART 307--ACQUISITION PLANNING
Subpart 307.1--Acquisition Plans
Sec.
307.104 General procedures.
307.105 Contents of written acquisition plans.
307.170 Program training requirements.
307.170-1 Policy exceptions.
307.170-2 Training course prerequisites.
Subpart 307.3--Contractor Versus Government Performance
307.302 General.
307.303 Determining availability of private commercial sources.
307.304 Procedures.
307.307 Appeals.
Subpart 307.70--Considerations in Selecting an Award Instrument
307.7000 Scope of subpart.
307.7001 Distinction between acquisition and assistance.
307.7002 Procedures.
Subpart 307.71--Requests for Contract
307.7100 Scope of subpart.
307.7101 General.
307.7102 Procedures.
307.7103 Responsibilities.
307.7104 Transmittal.
307.7105 Format and content.
307.7106 Statement of work.
307.7107 Review.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 307.1--Acquisition Planning
307.104 General procedures.
(d) Each contracting activity
shall prepare an Annual Acquisition Plan (AAP). The AAP is a macro plan,
containing a list of anticipated contract actions over the simplified
acquisition threshold and their associated funding, as well as the aggregate
planned dollars for simplified acquisitions by quarter, developed for
each fiscal year. The AAP shall conform to reasonable budget expectations
and shall be reviewed at least quarterly and modified as appropriate.
The chief of the contracting office (CCO) shall obtain this information
from the program planning/budget office of the contracting activity and
use the AAP to provide necessary reports and monitor the workload of the
contracting office. For contract actions, the plan shall contain, at a
minimum:
(1) A brief description
(descriptive title, perhaps one or two sentences if necessary);
(2) Estimated award amount;
(3) Requested award date;
(4) Name and phone number
of contact person (usually the project officer);
(5) Other information
required for OPDIV needs.
(e) Once the AAP is obtained,
the contracting officer/contract specialist shall initiate discussions
with the assigned project officer for each planned negotiated acquisition
over $100,000 except for:
(1) Acquisitions made
under interagency agreements, and
[[Page 4227]]
(2) Contract modifications
which exercise options, make changes authorized by the Changes clause,
or add funds to an incrementally funded contract. (The HCA may prescribe
procedures for contract actions not covered by this subpart.)
(f) The purpose of the
discussions between the contracting and project officers is to develop
an individual acquisition planning schedule and to address the things
that will need to be covered in the request for contract (RFC), including
clearances, acquisition strategy, sources, etc. The project officer must
either have a statement of work (SOW) ready at this time or must discuss
in more detail the nature of the services/supplies that will be required.
(g) Standard lead-times
for processing various types of acquisitions and deadlines for submission
of acceptable RFCs (that is, RFCs which include all required elements
such as clearances, funding documents, and an acceptable SOW) for award
in a given fiscal year shall be established by the HCA or designee not
lower than the CCO.
(h) The outcome of the
discussions referenced in paragraph (f) of this section between the project
officer and the contracting officer/
contracting specialist will be an agreement concerning the dates of significant
transaction-specific acquisition milestones, including the date of submission
of the RFC to the contracting officer. This milestone schedule document
will be prepared with those dates and will be signed by the project officer
and the contracting officer. The milestones cannot be revised except by
mutual agreement of these same individuals. If the planning schedule indicates
the need to obtain approval of a Justification for Other than Full and
Open Competition, the CCO must sign the milestone agreement. This document
shall be retained in the contract file. All other considerations that
will affect the acquisition (technical, business, management) shall be
addressed in the RFC (see 307.71).
307.105 Contents of written acquisition plans.
The written acquisition
plan required by FAR 7.105 must be contained in the request for contract,
as specified in subpart 307.71, and is the final product of the planning
process.
307.170 Program training requirements.
(i) All program personnel
selected to serve as project officers for HHS contracts shall have successfully
completed either the Department's appropriate "Basic Project Officer"
course, or an equivalent course (see paragraph (c) of this section).
(b) At least fifty percent
of the HHS program personnel performing the function of technical proposal
evaluator on a technical evaluation team or panel for any competitively
solicited HHS contract shall have successfully completed the appropriate
"Basic Project Officer" course, or an equivalent course (see
paragraph (c) of this section). This requirement applies to the initial
technical proposal evaluation and any subsequent technical evaluations
that may be required.
(c) Determination of course
equivalency shall be made by the HCA (not delegable) of the cognizant
contracting activity. The contracting officer is responsible for ensuring
that the project officer and technical proposal evaluators have successfully
completed the required training discussed in 307.170-2.
307.170-1 Policy exceptions.
In the event there is
an urgent requirement for a specific individual to serve as a project
officer and that individual has not successfully completed the prerequisite
training course, the HCA (not delegable) may waive the training requirement
and authorize the individual to perform the project duties, provided that:
(a) The individual first
meets with the cognizant contracting officer to review the DHHS Project
Officers' Contracting Handbook," and to discuss the important aspects
of the contracting--program office relationship as appropriate to the
circumstances; and
(b) The individual attends
the next scheduled and appropriate "Basic Project Officer" course.
307.170-2 Training course prerequisites.
(a) Project officers.
(1) Newly appointed project officers, and project officers with less than
three years experience and no previous related training, are required
to take the appropriate "Basic Project Officer" course. (The
grade level for project officers attending the course should be GS-7 and
above.) All project officers are encouraged to take the appropriate "Writing
Statements of Work" course.
(2) Project officers with
more than three years experience, and project officers with less than
three years experience who have successfully completed the appropriate
basic course, are qualified (and encouraged) to take the "Advanced
Project Officer" course.
(3) Additional information
on prerequisites for attendance of these courses may be found in the "DHHS
Acquisition Training and Certification Program Handbook."
(b) Technical proposal
evaluators. Technical proposal evaluators, regardless of experience, are
required to take the appropriate "Basic Project Officer" course
or its equivalent. Upon successful completion of the basic course, it
is recommended that they take the appropriate "Advanced Project Officer"
course. Peer and objective reviewers are excluded from these requirements.
Subpart 307.3--Contractor Versus Government Performance
307.302 General.
(a) General Administration
Manual (GAM) Chapter 18-10, Commercial-
Industrial Activities of the Department of Health and Human Services Providing
Products or Services for Government Use, assigns responsibilities for
making method-of-performance decisions (contract vs. in-house performance)
to various management levels within the Department depending on the dollar
amount of capital investment or annual operating costs. It also requires
that each operating division (OPDIV) and staff division (STAFFDIV) designate
a "Commercial-
Industrial Control Officer" (CICO) to be responsible for ensuring
compliance with the requirements of the Chapter.
307.303 Determining availability of private commercial sources.
In accordance with the
provisions of GAM Chapter 18-10, OPDIVs and STAFFDIVs must prepare and
maintain a complete inventory of all individual commercial or industrial
activities. They must also conduct periodic reviews of each activity and
contract in the inventory to determine if the existing performance, in-house
or by contract, continues to be in accordance with the policy guidelines
of GAM Chapter 18-10.
307.304 Procedures.
Contracting officers shall
ensure that no acquisition action involving a commercial-industrial activity
is initiated unless it is in compliance with the requirements of GAM Chapter
18-10. The contracting officer must check each request for contract expected
to result in a contract in excess of $100,000 to ensure that it contains
a statement as to whether the proposed contract is or is not subject to
review under GAM Chapter 18-10 requirements. If the contracting officer
has any questions regarding the determination of applicability or nonapplicability,
or if the required statement is missing, the
[[Page 4228]]
program office submitting the request for contract should be contacted
and the situation rectified. If the issue cannot be resolved with the
program office, the contracting office shall refer the matter to the CICO
for a final determination. The HCA is responsible for ensuring that contracting
activities are in full compliance with FAR Subpart 7.3.
307.307 Appeals.
The review and appeals
procedure discussed in FAR 7.307 are addressed in GAM Chapter 18-10.
Subpart 307.70--Considerations in Selecting an Award Instrument
307.7000 Scope of subpart.
This subpart provides
guidance on the appropriate selection of award instruments consistent
with 31 U.S.C. 6301-6308. This subpart explains the use of the contract
as the award instrument for acquisition relationships, and the grant or
cooperative agreement as the instrument for assistance relationships.
This subpart provides guidance for determining whether to use the acquisition
or assistance process to fulfill program needs.
307.7001 Distinction between acquisition and assistance.
(a) 31 U.S.C. 6301-6308
requires the use of contracts to acquire property or services for the
direct benefit or use of the Government and grants or cooperative agreements
to transfer money, property, services, or anything of value to recipients
to accomplish a public purpose of support or stimulation authorized by
Federal statute.
(b) A contract is to be
used as the legal instrument to reflect a relationship between the Federal
Government and a recipient whenever:
(1) The principal purpose
of the instrument is the acquisition, by purchase, lease, or barter, of
property or services for the direct benefit or use of the Federal Government;
or
(2) The Department determines
in a specific instance that the use of a type of contract is appropriate.
That is, it is determined in a certain situation that specific needs can
be satisfied best by using the acquisition process. However, this authority
does not permit circumventing the criteria for use of acquisition or assistance
instruments. Use of this authority is restricted to extraordinary circumstances
and only with the prior approval of the Deputy Assistant Secretary for
Grants and Acquisition Management (DASGAM).
(c) A grant or cooperative
agreement is to be used as the legal instrument to reflect a relationship
between the Federal Government and a recipient whenever the principal
purpose of the relationship is the transfer of money, property, services,
or anything of value to the recipient to accomplish a public purpose of
support or stimulation authorized by Federal statute.
(1) A grant is the legal
instrument to be used when no substantial involvement is anticipated between
the Department and the recipient during performance of the contemplated
activity.
(2) A cooperative agreement
is the legal instrument to be used when substantial involvement is anticipated
between the Department and the recipient during performance of the contemplated
activity.
(d) As a general rule,
contracts are to be used for the following purposes:
(1) Evaluation (including
research of an evaluative nature) of the performance of Government programs
or projects or grantee activity initiated by the funding agency for its
direct benefit or use.
(2) Technical assistance
rendered to the Government, or on behalf of the Government, to any third
party, including those receiving grants or cooperative agreements.
(3) Surveys, studies,
and research which provide specific information desired by the Government
for its direct activities, or for dissemination to the public.
(4) Consulting services
or professional services of all kinds if provided to the Government or,
on behalf of the Government, to any third party.
(5) Training projects
where the Government selects the individuals or specific groups whose
members are to be trained or specifies the content of the curriculum (not
applicable to fellowship awards.)
(6) Planning for Government
use.
(7) Production of publications
or audiovisual materials required primarily for the conduct of the direct
operations of the Government.
(8) Design or development
of items for Government use or pursuant to agency definition or specifications.
(9) Conferences conducted
on behalf of the Government.
(10) Generation of management
information or other data for Government use.
307.7002 Procedures.
(a) OPDIV program
officials should use existing budget and program planning procedures to
propose new activities and major changes in ongoing programs. It is the
responsibility of these program officials to meet with the HCA and the
principal grants management official, or their designees, to distinguish
the relationships and determine whether award is to be made through the
acquisition process or assistance process. This determination should be
made prior to the time when the annual acquisition plan is reviewed and
approved so that the plan will reflect all known proposed contract actions.
The cognizant contracting officer will confirm the appropriateness of
the use of the contract instrument when reviewing the request for contract.
(b) Shifts from one award
instrument to another must be fully documented in the appropriate files
to show a fundamental change in program purpose that unequivocally justifies
the rationale for the shift.
(c) OPDIVs must ensure
that the choice of instrument is determined in accordance with 31 U.S.C.
6301-6308 and applicable departmental policies. If, however, there are
major individual transactions or programs which contain elements of both
acquisition and assistance in such a way that they cannot be characterized
as having a principal purpose of one or the other, guidance should be
obtained from the DASGAM, through normal channels, before proceeding with
a determination.
(d) Any public notice,
program announcement, solicitation, or request for applications or proposals
must indicate whether the intended relationship will be one of acquisition
or assistance and specify the award instrument to be used.
Subpart 307.71--Requests for Contract
307.7100 Scope of subpart.
This subpart prescribes
the format and contents of the request for contract (RFC) and provides
procedures for its preparation and submission.
307.7101 General.
The program office's preparation
of the RFC and submission to the contracting office completes the presolicitation
phase of the acquisition planning process and commences the solicitation
phase. The RFC is the formal document which initiates the preparation
of the solicitation by the contracting office and sets the acquisition
process in motion. It is the result of the planning by the project officer
and contracting officer and contains much of the pertinent information
necessary for the development of a sound, comprehensive solicitation.
307.7102 Procedures.
The program office should
submit the RFC to the contracting office no later than the date agreed
to by the
[[Page 4229]]
contracting officer and the project officer in the milestone schedule
(see 307.104(h)), unless a revised due date has been established by mutual
agreement.
307.7103 Responsibilities.
(a) It is the responsibility
of the project officer to prepare the RFC so that it complies with the
requirements of this subpart and any OPDIV guidance issued in accordance
with this subpart.
(b) Prior to the submission
of the RFC to the contracting office, the head of the program office sponsoring
the project shall review the RFC to ensure that all required information
is provided in the prescribed format, and a technical review of the statement
of work has been made. The level and extent of the technical review is
to be commensurate with the estimated cost, importance, and complexity
of the proposed acquisition, and must be thorough enough to ensure that
vague and ambiguous language is eliminated, the statement of work is structured
by phases or tasks, if appropriate, and methods are available for assessing
the contractor's technical, cost, and delivery performance.
307.7104 Transmittal.
The RFC must be conveyed
to the contracting office by use of a covering memorandum or other form
of transmittal. The transmittal document must be signed by the head of
the sponsoring program office and include both a statement attesting to
the conclusiveness of the review described in 307.7103(b) and a list identifying
all attachments to the RFC.
307.7105 Format and content.
The Department does not
prescribe a standard format for the RFC. A format similar to what is in
this section is recommended. However, any document or group of documents
will be acceptable as an RFC as long as all of the required information
(paragraph (a) of this section), and as much of the optional information
(paragraph (b) of this section) as is relevant, is included.
(a) The RFC must include:
(1) Purpose of the contract.
A brief, general description of the requirement, including the citation
of the legislation which authorizes the program or project, and a statement
as to the intended purpose/use of the proposed contract.
(2) Period of performance.
The number of months (or other time period) required for total performance
and, if applicable, for each phase of work indicated in the statement
of work, as well as the proposed starting date.
(3) Estimated cost and
funds citation. An estimate of the total cost of the proposed contract
and, if applicable, the estimate for each phase indicated in the statement
of work. The project officer must provide a cost breakdown of all contributing
cost factors, an estimate of the technical staff hours, direct material,
subcontracting, travel, etc., and may consult with contracting and cost
advisory personnel in developing this information. This section must include
the certification of funds availability for the proposed acquisition,
along with the appropriation and accounting information citations. When
funds for the proposed acquisition are not currently available for obligation
but are anticipated, a statement of intent to commit funds from the financial
management officer shall be included in lieu of the certification of funds
availability. (Contracts cannot be awarded unless funds are available,
but see FAR 32.703-2).
(4) Specification, purchase
description, or statement or work. A description of the work to be performed
that may be in the form of a specification, purchase description, or statement
of work. Guidance concerning the statement of work and its contents is
contained in 307.7106. Use of the specification is primarily limited to
supply or service contracts where the material end item or service to
be delivered is well defined by the Government. To the maximum extent
possible, requirements should be defined as performance-based statements
of work that focus on outcomes or results. If the RFC for a service contract
is not utilizing a performance-based statement of work, with associated
measures and a quality surveillance plan, the rationale for this determination
must be documented. If a performance-
based service contract is utilized, the RFC must detail the performance
standards that must be met, the quality surveillance plan that will be
implemented and the performance incentives to be used, if applicable.
(5) Schedule of deliverables/reporting
requirements. A description of what is to be delivered, including, if
applicable, technical and financial progress reports and any final report,
and the required date of delivery for each deliverable. Reporting requirements
should be tailored to the instant acquisition and should not be unnecessarily
extensive or detailed. All delivery and reporting requirements shall include
the quantities, the place of delivery, and time of delivery.
(6) Sources for solicitation.
A list of known potential sources by name, size, type of ownership, and
mailing address. The project officer is encouraged to use trade and professional
journals and publications and conduct a thorough market research to identify
new prospective sources to supplement the list of known sources. Efforts
to identify set-aside possibilities, e.g., 8(a), HUBZone, and small business,
and efforts to identify sources such as small disadvantaged and women-owned
small businesses must be documented.
(7) Project officer and
alternate. The project officer's name, title, organization, mailing address,
and telephone number, along with the same data for the project officer's
alternate, and a statement that these individuals have completed the Department's
project officer training course (see 307.l70)
(b) The RFC must include,
if applicable to the acquisition:
(1) Background and need.
The background, history, and necessity for the proposed contract. This
section is to include prior, present, and planned efforts by the program
office in the same or related areas, and a description of efforts by other
departmental activities and Federal agencies in the same or related program
areas, if known. In addition, specific project information, such as the
relevance or contribution to overall program objectives, reasons for the
need, priority, and project overlap are to be provided.
(2) Reference materials.
A list, by title and description, of study reports, plans, drawings, and
other data to be made available to prospective offerors for use in preparation
of proposals and/or the contractor for use in performance of the contract.
The project officer must indicate whether this material is currently available
or when it will be available, and how it may be accessed by potential
offerors.
(3) Technical evaluation
criteria and instructions. Technical evaluation criteria, which have been
developed based on the requirements of the specific project, and any instructions
and information which will assist in the preparation of prospective offerors'
technical proposals. Evaluation factors may include understanding of the
problem, technical approach, experience, personnel, facilities, etc. Criteria
areas discussed in the statement of work and the relative order of importance
or weights assigned to each of these areas for technical evaluation purposes
must be identified.
(4) Special program clearances
or approvals. Any required clearance or approval. The following special
program clearances or approvals should be reviewed for applicability to
each
[[Page 4230]]
acquisition. The ones which are applicable should be addressed during
the planning discussions between the project officer and contracting officer/contract
specialist (see 307.104(f)) and immediate action should be initiated by
the project officer to obtain the necessary clearances or approvals. Comprehensive
checklists of these and any OPDIV special approvals, clearances, and requirements
shall be provided for reference purposes to program offices by the servicing
contracting activity. If the approval or clearance has been requested
and is being processed at the time of RFC submission, a footnote to this
effect, including all pertinent details, must be included in this section.
(i) Commercial activities.
(OMB Circular No. A-76). A request for contract (RFC) must contain a statement
as to whether the proposed solicitation is or is not to be used as part
of an OMB Circular No. A-
76 cost comparison. (See General Administration Manual (GAM) Chapter 18-10;
FAR subpart 7.3, subpart 307.3; OMB Circular No. A-76.)
(ii) Printing. The acquisition
of printing and high volume duplicating by contract is prohibited unless
it is authorized by the Joint Committee on Printing of the U.S. Congress.
Procedures to be followed are contained in the "Government Printing
and Binding Regulations" and the HHS Printing Management Manual and
FAR subpart 8.8.
(iii) Paperwork Reduction
Act. Under the Paperwork Reduction Act of 1995, a Federal agency shall
not collect information or sponsor the collection of information from
ten or more persons (other than Federal employees acting within the scope
of their employment) unless, in advance, the agency has submitted a request
for Office of Management and Budget (OMB) review, to the OMB, and the
OMB has approved the proposed collection of information. Procedures for
the approval may be obtained by contacting the OPDIV reports clearance
officer. (See 5 CFR part 1320).
(iv) Publications. All
projects that will result in contracts which include publications development
(print products, electronic bulletin boards, posting on the internet)
require review and approval by the Office of the Assistant Secretary for
Public Affairs (OASPA). Form HHS-
615, Publication Planning and Clearance Request, must be forwarded to
OASPA through the OPDIV public affairs officer. Publications are defined
in Chapter 5-00-15 of the Public Affairs Management Manual.
(v) Public affairs services.
Projects for the acquisition of public affairs services in excess of $5,000
must be submitted to the Office of the Assistant Secretary for Public
Affairs (OASPA) for review and approval on Form HHS-524, Request for Public
Affairs Services Contract.
(vi) Audiovisual. All
projects which will result in contracts which include audiovisuals, regardless
of the audio, video, or audiovisual medium employed, require review and
approval by the Office of the Assistant Secretary for Public Affairs (OASPA).
Form HHS-524A, Publication Planning and Clearance Request, must be forwarded
to OASPA through the OPDIV public affairs officer. Audiovisuals are defined
in chapter 6-00-15 of the Public Affairs Management Manual.
(vii) Privacy Act (5 U.S.C.
552a). Whenever the Department contracts for the design, development,
operation, or maintenance of a system of records on individuals on behalf
of the Department to accomplish a departmental function, the Privacy Act
is applicable. The program official, after consultation with the activity's
Privacy Act Coordinator and the Office of General Counsel, as necessary,
shall include a statement in the request for contract as to the applicability
of the Act. Whenever an acquisition is subject to the Act, the program
official prepares a "system notice" and has it published in
the Federal Register. (See HHS Privacy Act regulation, 45 CFR part 5b;
FAR subpart 24.1 and subpart 324.1.)
(viii) Foreign research.
All foreign research contract projects to be conducted in a foreign country
and financed by HHS funds (U.S. dollars) must have clearance by the Department
of State with respect to consistency with foreign policy objectives. This
clearance should be obtained prior to negotiation. Procedures for obtaining
this clearance are set forth in the HHS General Administration Manual,
Chapter 20-60.
(5) Identification and
disposition of data. Identification of the data expected to be generated
by the acquisition and an indication of whether the data are to be delivered
to the Department or to be retained by the contractor is required. The
project officer must also include information relative to the use, maintenance,
disclosure, and disposition of data. The project officer must include
a statement as to whether or not another acquisition, based upon the data
generated by the proposed acquisition, is anticipated.
(6) Government property.
If known, the type of Government property, individual items, and quantities
of Government property to be furnished to, or allowed to be acquired by,
the resultant contractor should be indicated. The project officer must
specify when the Government property is to be made available.
(7) Special terms and
conditions. Any suggested special terms and conditions not already covered
in the statement of work or the applicable contract general provisions
is required.
(8) Justification for
other than full and open competition. If the proposed acquisition is to
be awarded using other than full and open competition, a justification
prepared in accordance with FAR subpart 6.3 and subpart 306.3 is required.
307.7106 Statement of work.
(a) General. A statement
of work (SOW) differs from a specification and purchase description primarily
in that it describes work or services to be performed in reaching an end
result rather than a detailed, well defined description or specification
of the end product. The SOW may enumerate or describe the methods (statistical,
clinical, laboratory, etc.) that will be used. However, it is preferable
for the offeror to propose the method of performing the work. The SOW
should specify the desired results, functions, or end items without telling
the offeror what has to be done to accomplish those results unless the
method of performance is critical or required for the successful performance
of the contract. The SOW should be clear and concise and must completely
define the responsibilities of the Government and the contractor. The
SOW should be worded so as to make more than one interpretation virtually
impossible because it has to be read and interpreted by persons of varied
backgrounds, such as attorneys, contracting personnel, cost estimators,
accountants, scientists, educators, functional specialists, etc. The SOW
must clearly define the obligations of both the contractor and the Government
so as to protect the interests of both. Ambiguous statements of work can
create unsatisfactory performance, delays, and disputes, and can result
in higher costs.
(b) Term (level of effort)
vs. completion work statement. Careful distinctions must be drawn between
term (level of effort) SOWs, which essentially require the furnishing
of technical effort and which may include a report thereof, and completion
type work statements, which require development of tangible items designed
to meet specific performance and/or design characteristics. (See FAR 16.306(d)
for distinction).
[[Page 4231]]
(1) Term (or level of
effort). A term or level of effort type SOW is appropriate for research
where one seeks to discover the feasibility of later development, or to
gather general information. A term or level of effort type SOW may only
specify that some number of labor-hours be expended on a particular course
of research, or that a certain number of tests be run, without reference
to any intended conclusion.
(2) Completion. A completion
type SOW is appropriate to development work where the feasibility of producing
an end item is already known. A completion type SOW may describe what
is to be achieved through the contracted effort, such as development of
new methods, new end items, or other tangible results.
(c) Phasing. Individual
research, development, or demonstration projects frequently lie well beyond
the present state of the art and entail procedures and techniques of great
complexity and difficulty. Under these circumstances, a contractor, no
matter how carefully selected, may be unable to deliver the desired result.
Moreover, the job of evaluating the contractor's progress is often difficult.
Such a contract is frequently phased and often divided into stages of
accomplishment, each of which must be completed and approved before the
contractor may proceed to the next. Phasing makes it necessary to develop
methods and controls, including reporting requirements for each phase
of the contract and criteria for evaluation of the report submitted, that
will provide, at the earliest possible time, appropriate data for making
decisions relative to future phases. A phased contract may include stages
of accomplishment such as research, development, and demonstration. Within
each phase, there may be a number of tasks which should be included in
the SOW. When phases of work can be identified, the SOW will provide for
phasing and the request for proposals will require the submission of proposed
costs by phases. The resultant contract will reflect costs by phases,
require the contractor to identify incurred costs by phases, establish
delivery schedules by phase, and require the written acceptance of each
phase. The provisions of the Limitation of Cost clause shall apply to
the estimated cost of each phase. Contractors shall not be allowed to
incur costs for phases which are dependent upon successful completion
of earlier phases until written acceptance of the prior work is obtained
from the contracting officer.
(d) Elements of the SOW.
The elements of the SOW will vary with the objective, complexity, size,
and nature of the acquisition. In general, it should cover the following
matters as appropriate.
(1) A general description
of the required objectives and desired results. Initially, a broad, nontechnical
statement of the nature of the work to be performed. This should summarize
the actions to be performed by the contractor and the results that the
Government expects.
(2) Background information
helpful to a clear understanding of the requirements and how they evolved.
Include a brief historical summary as appropriate and the relationship
to overall program objectives.
(3) A detailed description
of the technical requirements. A comprehensive description of the work
to be performed to provide whatever details are necessary for prospective
offerors to submit meaningful proposals.
(4) Subordinate tasks
or types of work. A listing of the various tasks or types of work (it
may be desirable in some cases to indicate that this is not all-inclusive).
The degree of task breakout is directly dependent on the size and complexity
of the work to be performed and the logical groupings. A single cohesive
task should not be broken out merely to conform to a format. Indicate
whether the tasks are sequential or concurrent for offeror planning purposes.
(5) Reference material.
All reference material to be used in the conduct of the project that tells
how the work is to be carried out must be identified. Applicability should
be explained, and a statement made as to where the material can be obtained.
(6) Level of effort. When
a level of effort is required, the number and type of personnel required
should be stated. If known, the type and degree of expertise should be
specified.
(7) Special requirements.
(as applicable). An unusual or special contractual requirement, which
would impact on contract performance, should be included as a separate
section.
(8) Deliverables reporting
requirements. All deliverables and/or reports must be clearly and completely
described.
307.7107 Review.
Upon receipt of the RFC,
the contracting officer shall review its contents to ensure that all pertinent
information has been provided by the program office and that it includes
an acceptable SOW. If pertinent information is missing or the SOW is inadequate,
the contracting officer shall obtain or clarify the information as soon
as possible so that the acquisition schedule can be met. If the program
office delays furnishing the information or clarification, the contracting
officer should notify the head of the sponsoring program office, in writing,
of the possible slippage in the acquisition schedule and the need for
an expeditious remedy. The contracting officer should also notify the
chief of the contracting office. A program office's or project officer's
continued failure to adhere to agreed on milestones should also be reported
to the head of the contracting activity.
PART 309--CONTRACTOR QUALIFICATIONS
Subpart 309.4--Debarment, Suspension, and Ineligibility
Sec.
309.403 Definitions.
309.404 List of Parties Excluded from Federal Procurement and Nonprocurement
Programs.
309.405 Effect of listing.
309.406 Debarment.
309.406-3 Procedures.
309.407 Suspension.
309.407-3 Procedures.
309.470 Reporting of suspected causes of debarment, suspension, or the
taking of evasive actions.
309.470-1 Situations where reports are required.
309.470-2 Contents of reports.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 309.4--Debarment, Suspension, and Ineligibility
309.403 Definitions.
Acquiring agency's head
or designee, as used in the FAR, shall mean, unless otherwise stated in
this subpart, the head of the contracting activity. Acting in the capacity
of the acquiring agency's head, the head of the contracting activity may
make the required justifications or determinations, and take the necessary
actions, specified in FAR 9.405, 9.406 and 9.407 for his or her respective
activity, but only after obtaining the written approval of the debarring
or suspending official, as the case may be.
Debarring official means
the Assistant Secretary for Management and Budget, or his/her designee.
Initiating official means
either the contracting officer, the head of the contracting activity,
the Deputy Assistant Secretary for Grants and Acquisition Management,
or the Inspector General.
Suspending official means
the Assistant Secretary for Management and Budget, or his/her designee.
[[Page 4232]]
309.404 List of Parties Excluded from Federal Procurement and Nonprocurement
Programs.
(c) The Office of Grants
and Acquisition Management (OGAM) shall perform the actions required by
FAR 9.404(c).
(4) OGAM shall maintain
all documentation submitted by the initiating official recommending the
debarment or suspension action and all correspondence and other pertinent
documentation generated during the OGAM review.
309.405 Effect of listing.
(a) The head of the contracting
activity (HCA) (not delegable) may, with the written concurrence of the
debarring or suspending official, make the determinations referenced in
FAR 9.405(a), regarding contracts for their respective activities.
(1) If a contracting officer
considers it necessary to award a contract, or consent to a subcontract
with a debarred or suspended contractor, the contracting officer shall
prepare a determination, including all pertinent documentation, and submit
it through acquisition channels to the head of the contracting activity.
The documentation must include the date by which approval is required
and a compelling reason for the proposed action. Some examples of circumstances
that may constitute a compelling reason for the award to, or consent to
a subcontract with, a debarred or suspended contractor include:
(i) The property or services
to be acquired are available only from the listed contractor;
(ii) The urgency of the
requirement dictates that the Department deal with the listed contractor;
or
(iii) There are other
compelling reasons which require business dealings with the listed contractor.
(2) If the HCA decides
to approve the requested action, he/she shall request the concurrence
of the debarring or suspending official and, if given, shall inform the
contracting officer in writing of the decision within the required time
period.
309.406 Debarment.
309.406-3 Procedures.
(a) Investigation and
referral. Whenever an apparent cause for debarment becomes known to an
initiating official, that person shall prepare a report incorporating
the information required by 309.470-2, if known, and forward it through
appropriate channels with a written recommendation, to the debarring official.
Contracting officers shall forward their reports in accordance with 309.470-1.
The debarring official shall initiate an investigation through such means
as he/she deems appropriate.
(b) Decisionmaking process.
The debarring official shall review the results of the investigation,
if any, and make a written determination whether or not debarment procedures
are to be commenced. A copy of the determination shall be promptly sent
through appropriate channels to the initiating official, and the contracting
officer, if necessary. If the debarring official determines to commence
debarment procedures, he/
she shall, after consultation with the Office of the General Counsel,
notify the contractor in accordance with FAR 9.406-3(c). If the proposed
action is not based on a conviction or judgement and the contractor's
submission in response to the notice raises a genuine dispute over facts
material to the proposed debarment, the debarring official shall arrange
for fact-finding hearings and take the necessary action specified in FAR
9.406-3(b)(2). The debarring official shall also ensure that written findings
of facts are prepared, and shall base the debarment decisions on the facts
as found, after considering information and argument submitted by the
contractor and any other information in the administrative record. The
Office of the General Counsel shall represent the Department at any fact-finding
hearing and may present witnesses for HHS and question any witnesses presented
by the contractor.
309.407 Suspension.
309.407-3 Procedures.
(a) Investigation and
referral. Whenever an apparent cause for suspension becomes known to an
initiating official, that person shall prepare a report incorporating
the information required by 309.470-2, if known, and forward it through
appropriate channels, with a written recommendation, to the suspending
official. Contracting officers shall forward their reports in accordance
with 309.470-1. The suspending official shall initiate an investigation
through such means as he/she deems appropriate.
(b) Decisionmaking process.
The suspending official shall review the results of the investigation,
if any, and make a written determination whether or not suspension should
be imposed. A copy of this determination shall be promptly sent through
appropriate channels to the initiating official and the contracting officer,
if necessary. If the suspending official determines to impose suspension,
he/she shall, after consultation with the Office of the General Counsel,
notify the contractor in accordance with FAR 9.407-3(c). If the action
is not based on an indictment, and, subject to the provisions of FAR 9.407-3(b)(2),
the contractor's submission in response to the notice raises a genuine
dispute over facts material to the suspension, the suspending official
shall, after suspension has been imposed, arrange for fact-finding hearings
and take the necessary actions specified in FAR 9.407-3(b)(2).
309.470 Reporting of suspected causes for debarment or suspension, or
the taking of evasive actions.
309.470-1 Situations where reports are required.
A report incorporating
the information required by 309.470-2 shall be forwarded, in duplicate,
by the contracting officer through acquisition channels to OGAM when:
(a) A contractor has committed,
or is suspected of having committed, any of the acts described in FAR
9.406-2 or FAR 9.407-2; or
(b) A contractor is suspected
of attempting to evade the prohibitions of debarment or suspension imposed
under this subject, or any other comparable regulation, by changes of
address, multiple addresses, formation of new companies, or by other devices.
309.470-2 Contents of reports.
Each report prepared under
309.470-1 shall be coordinated with the Office of the General Counsel
and shall include the following information, where available:
(a) Name and address of
contractor.
(b) Name of the principal
officers, partners, owners, or managers.
(c) All known affiliates,
subsidiaries, or parent firms, and the nature of the affiliation.
(d) Description of the
contract or contracts concerned, including the contract number, and office
identifying numbers or symbols, the amount of each contract, the amount
paid the contractor and the amount still due, and the percentage of work
completed and to be completed.
(e) The status of vouchers.
(f) Whether contract funds
have been assigned pursuant to the Assignment of Claims Act, as amended,
(31 U.S.C. 3727, 41 U.S.C. 15), and, if so assigned, the name and address
of the assignee and a copy of the assignment.
(g) Whether any other
contracts are outstanding with the contractor or any affiliates, and,
if so, the amount of the contracts, whether these funds have
[[Page 4233]]
been assigned pursuant to the Assignment of Claims Act, as amended, (31
U.S.C. 3727, 41 U.S.C. 15), and the amounts paid or due on the contracts.
(h) A complete summary
of all available pertinent evidence.
(i) A recommendation as
to the continuation of current contracts.
(j) An estimate of damages,
if any, sustained by the Government as a result of the action of the contractor,
including an explanation of the method used in making the estimate.
(k) The comments and recommendations
of the contracting officer and statements regarding whether the contractor
should be suspended or debarred, whether any limitations should be applied
to the action, and the period of any proposed debarment.
(l) As an enclosure, a
copy of the contract(s) or pertinent excerpts therefrom, appropriate exhibits,
testimony or statements of witnesses, copies of assignments, and other
relevant documentation or a written summary of any information for which
documentation is not available.
PART 313--SIMPLIFIED ACQUISITION PROCEDURES
Subpart 313.3--Simplified Acquisition Methods
Sec.
313.301 Governmentwide commercial purchase card.
313.303 Blanket purchase agreements (BPAs).
313.303-5 Purchases under BPAs.
313.305 Imprest funds and third party drafts.
313.305-1 General.
313.306 SF 44, Purchase Order--Invoice--Voucher.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 313.3--Simplified Acquisition Methods.
313.301 Governmentwide commercial purchase card.
(b) The Department has
issued general guidance concerning the use of governmentwide commercial
purchase cards, and has authorized the OPDIVs to establish procedures
for the use, administrative and management controls, and training necessary
to comply with FAR 13.301.
313.303 Blanket Purchase Agreements (BPAs).
313.303-5 Purchases under BPAs.
(e)(5) Delivery documents,
invoices, etc., signed by the Government employee receiving the item or
service will be forwarded to the fiscal office or other paying office
as designated by the OPDIV. Payment will be made on the basis of the signed
document, invoice, etc. Contracting offices will ensure that established
procedures allowing for availability of funds are in effect prior to placement
of orders.
313.305 Imprest funds and third party drafts.
313.305-1 General.
Requests to establish
imprest funds shall be made to the responsible fiscal office. At larger
activities where the cashier may not be conveniently located near the
purchasing office, a Class C Cashier may be installed in the purchasing
office. Documentation of cash purchases shall be in accordance with instructions
contained in the HHS Voucher Audit Manual Part 1, Chapter 1-10.
313.306 SF 44, Purchase Order--Invoice--Voucher.
(d) Since the Standard
Form (SF) 44 is an accountable form, a record shall be maintained of serial
numbers of the form, to whom issued, and date issued. SF 44's shall be
kept under adequate lock and key to prevent unauthorized use. A reservation
of funds shall be established to cover total anticipated expenditures
prior to use of the SF 44.
PART 314--SEALED BIDDING
Subpart 314.2--Solicitation of Bids
Sec.
314.202 General rules for solicitation of bids.
314.202-7 Facsimile bids.
314.213 Annual submission of representations and certifications.
Subpart 314.4--Opening of Bids and Award of Contract
314.404 Rejection of bids.
314.404-1 Cancellation of invitations after opening.
314.407 Mistakes in bids.
314.407-3 Other mistakes disclosed before award.
314.407-4 Mistakes after award.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 314.2--Solicitation of Bids
314.202 General rules for solicitation of bids.
314.202-7 Facsimile bids.
If the
head of the contracting activity (HCA) (not delegable) has determined
that the contracting activity will allow use of facsimile bids and proposals,
the HCA shall prescribe internal procedures, in accordance with the FAR,
to ensure uniform processing and control.
314.213 Annual submission of representations and certifications.
Each HCA (not delegable)
shall determine whether the contracting activity will allow use of the
annual submission of representations and certifications by bidders.
Subpart 314.4--Opening of Bids and Award of Contract
314.404 Rejection of bids.
314.404-1 Cancellation of invitations after opening.
The chief of the contracting
office (CCO) (not delegable) shall make the determinations required to
be made by the agency head in FAR 14.404-1.
314.407 Mistakes in bids.
314.407-3 Other mistakes disclosed before award.
(e) Authority has been
delegated to the Departmental Protest Control Officer, Office of Acquisition
Management, Office of Grants and Acquisition Management, to make administrative
determinations in connection with mistakes in bid alleged after opening
and before award. This authority may not be redelegated.
(f) Each proposed determination
shall have the concurrence of the Chief, Business Law Branch, Business
and Administrative Law Division, Office of General Counsel.
(i) Doubtful cases shall
not be submitted by the contracting officer directly to the Comptroller
General, but shall be submitted to the Departmental Protest Control Officer.
314.407-4 Mistakes after award.
(c) Authority has been
delegated to the Departmental Protest Control Officer to make administrative
determinations in connection with mistakes in bid alleged after award.
This authority may not be redelegated.
(d) Each proposed determination
shall have the concurrence of the Chief, Business Law Branch, Business
and Administrative Law Division, Office of the General Counsel.
PART 315--CONTRACTING BY NEGOTIATION
Subpart 315.2--Solicitation and Receipt of Proposals and Information
Sec.
315.204 Contract format.
315.204-5 Part IV--Representations and instructions.
315.208 Submission, modification, revision, and withdrawal of proposals.
315.209 Solicitation provisions and contract clauses.
[[Page 4234]]
Subpart 315.3--Source Selection
315.305 Proposal evaluation.
315.306 Exchanges with offerors after receipt of proposals.
315.307 Proposal revisions.
315.370 Finalization of details with the selected source.
315.371 Contract preparation and award.
315.372 Preparation of negotiation memorandum.
Subpart 315.4--Contract Pricing
315.404 Proposal analysis.
315.404-2 Information to support proposal analysis.
315.404-4 Profit.
Subpart 315.6--Unsolicited Proposals
315.605 Content of unsolicited proposals.
315.606 Agency procedures.
315.606-1 Receipt and initial review.
315.609 Limited use of data.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 315.2--Solicitation and Receipt of Proposals and Information
315.204 Contract format.
315.204-5 Part IV--Representations and instructions.
(a) Section K, Representations,
certifications, and other statements of offerors.
(1) This section shall
begin with the following and continue with the applicable representations
and certifications:
To Be Completed by the
Offeror: (The Representations and Certifications must be executed by an
individual authorized to bind the offeror.) The offeror makes the following
Representations and Certifications as part of its proposal (check or complete
all appropriate boxes or blanks on the following pages).
----------------------------------------------------------------------
(Name of Offeror)
----------------------------------------------------------------------
(RFP No.)
----------------------------------------------------------------------
(Signature of Authorized Individual)
----------------------------------------------------------------------
(Date)
----------------------------------------------------------------------
(Typed Name of Authorized Individual)
Note: The penalty for
making false statements in offers is prescribed in 18 U.S.C. 1001.
(c) Section M, Evaluation
factors for award.
(1) General. (i) The evaluation
factors must be developed by the project officer and submitted to the
contracting officer in the request for contract (RFC) for inclusion in
the request for proposal (RFP). Development of these factors and the assignment
of the relative importance or weight to each require the exercise of judgment
on a case-by-case basis because they must be tailored to the requirements
of the individual acquisition. Since the factors will serve as a standard
against which all proposals will be evaluated, it is imperative that they
be chosen carefully to emphasize those considered to be critical in the
selection of a contractor.
(ii) The finalized evaluation
factors cannot be changed except by a formal amendment to the RFP issued
by the contracting officer. No factors other than those set forth in the
RFP shall be used in the evaluation of proposals.
(2) Review of evaluation
factors.
(i) The evaluation factors
should be reviewed by the contracting officer in terms of the work statement.
This review is not intended to dictate technical requirements to the program
office or project officer, but rather to ensure that the evaluation factors
are clear, concise, and fair so that all potential offerors are fully
aware of the bases for proposal evaluation and are given an equal opportunity
to compete.
(ii) The project officer
and the contracting officer should then review the evaluation factors
together to ascertain the following:
(A) The factors are described
in sufficient detail to provide the offerors (and evaluators) with a total
understanding of the factors to be involved in the evaluation process;
(B) The factors address
the key programmatic concerns which the offerors must be aware of in preparing
proposals;
(C) The factors are specifically
applicable to the instant acquisition and are not merely restatements
of factors from previous acquisitions which are not relevant to this acquisition;
and
(D) The factors are selected
to represent only the significant areas of importance which must be emphasized
rather than a multitude of factors. (All factors tend to lose importance
if too many are included. Using too many factors will prove as detrimental
as using too few.)
(3) Examples of topics
that form a basis for evaluation factors. Typical examples of topics that
form a basis for the development of evaluation factors are listed in the
following paragraphs. These examples are intended to assist in the development
of actual evaluation factors for a specific acquisition and should only
be used if they are applicable to that acquisition. They are not to be
construed as actual examples of evaluation factors to be included in the
RFP.
(i) Understanding of the
problem and statement of work:
(ii) Method of accomplishing
the objectives and intent of the statement of work;
(iii) Soundness of the
scientific or technical approach for executing the requirements of the
statement of work (to include, when applicable, preliminary layouts, sketches,
diagrams, other graphic representations, calculations, curves, and other
data necessary for presentation, substantiation, justification, or understanding
of the approach);
(iv) Special technical
factors, such as experience or pertinent novel ideas in the specific branch
of science or technology involved;
(v) Feasibility and/or
practicality of successfully accomplishing the requirements (to include
a statement and discussion of anticipated major difficulties and problem
areas and recommended approaches for their resolution);
(vi) Availability of required
special research, test, and other equipment or facilities;
(vii) Managerial capability
(ability to achieve delivery or performance requirements as demonstrated
by the proposed use of management and other personnel resources, and to
successfully manage the project, including subcontractor and/or consultant
efforts, if applicable, as evidenced by the management plan and demonstrated
by previous experience);
(viii) Availability, qualifications,
experience, education, and competence of professional, technical, and
other personnel, to include proposed subcontractors and consultants (as
evidenced by resumes, endorsements, and explanations of previous efforts);
(ix) Soundness of the
proposed staff time or labor hours, propriety of personnel classifications
(professional, technical, others), necessity for type and quantity of
material and facilities proposed, validity of proposed subcontracting,
and necessity of proposed travel;
(x) Quality of offeror's
past performance on recent projects of similar size and scope; and
(xi) Extent of proposed
participation of small disadvantaged business concerns in performance
of the contract.
315.208 Submission, modification, revision, and withdrawal of proposals.
(b) When the head of the
contracting activity (HCA) for a health agency determines that certain
classes of biomedical or behavioral research and development acquisitions
should be subject to conditions other than those specified in FAR 52.215-1(c)(3),
the HCA may authorize the use of the provision at 352.215-70 in addition
to the provision at FAR 52.215-1. This is an authorized deviation.
[[Page 4235]]
(2) When the provision
at 352.215-70 is included in the solicitation and a proposal is received
after the exact time specified for receipt, the contracting officer, with
the assistance of cost and technical personnel, shall make a written determination
as to whether the proposal meets the requirements of the provision at
352.215-70 and, therefore, can be considered.
315.209 Solicitation provisions and contract clauses.
(a) Paragraph (e) of the
provision at 352.215-1 shall be used in place of that specified at FAR
52.215-1(e). This is an authorized deviation.
(g) If the head of the
contracting activity (HCA)(not delegable) has determined that the contracting
activity will allow the use of the annual submission of representations
and certifications by offerors, the provisions of FAR 14.213 shall be
followed.
Subpart 315.3--Source Selection
315.305 Proposal evaluation.
(a)(1) Cost or price evaluation.
The contracting officer shall evaluate business proposals adhering to
the requirements for cost or price analysis included in FAR 15.404. The
contracting officer must determine the extent of analysis in each case
depending on the amount of the proposal, the technical complexity, and
related cost or price. The contracting officer should request the project
officer to analyze items such as the number of labor hours proposed for
various labor categories; the mix of labor hours and categories of labor
in relation to the technical requirements of the project; the kinds and
quantities of material, equipment, and supplies; types, numbers and hours/days
of proposed consultants; logic of proposed subcontracting; analysis of
the travel proposed including number of trips, locations, purpose, and
travelers; and kinds and quantities of information technology. The project
officer shall provide his/her opinion as to whether these elements are
necessary and reasonable for efficient contract performance. Exceptions
to proposed elements shall be supported by adequate rationale to allow
for effective negotiations or award if discussions are not conducted.
The contracting officer should also request the assistance of a cost/price
analyst when considered necessary. In all cases, the negotiation memorandum
must include the rationale used in determining that the price or cost
is fair and reasonable.
(2) Past performance evaluation.
When evaluating past performance,
the contracting officer is responsible for conducting reference checks
to obtain information concerning the performance history of offerors.
The contracting officer may require the assistance of the project officer
as well as other Government technical personnel in performing this function.
(3) Technical evaluation.
(i) Technical evaluation
plan.
(A) A technical evaluation
plan may be required by the contracting officer, at his/her discretion,
when an acquisition is sufficiently complex as to warrant a formal plan.
(B) The technical evaluation
plan should include at least the following:
(1) A list of recommended
technical evaluation panel members, their organizations, a list of their
major consulting clients (if applicable), their qualifications, and curricula
vitae (if applicable);
(2) A justification for
using non-Government technical evaluation panel members. (Justification
is not required if non-Government evaluators will be used in accordance
with standard contracting activity procedures or policies);
(3) A statement that there
is no apparent or actual conflict of interest regarding any recommended
panel member;
(4) A copy of each rating
sheet, approved by the contracting officer, to be used to assure consistency
with the evaluation criteria; and
(5) A brief description
of the general evaluation approach.
(C) The technical evaluation
plan must be signed by an official within the program office in a position
at least one level above the project officer, or in accordance with contracting
activity procedures.
(D) The technical evaluation
plan should be submitted to the contracting officer for review and approval
before the solicitation is issued. The contracting officer shall make
sure that the significant factors and subfactors relating to the evaluation
are reflected in the evaluation criteria when conducting the review of
the plan.
(ii) Technical evaluation
panel.
(A) General. (1) A technical
evaluation panel is required for all acquisitions subject to this subpart
which are expected to exceed $500,000 and in which technical evaluation
is considered a key element in the award decision. The contracting officer
has the discretion to require a technical evaluation panel for acquisitions
not exceeding $500,000 based on the complexity of the acquisition.
(2) The technical evaluation
process requires careful consideration regarding the size, composition,
expertise, and function of the technical evaluation panel. The efforts
of the panel can result in the success or failure of the acquisition.
(B) Role of the project
officer. (1) The project officer is the contracting officer's technical
representative for the acquisition action. The project officer may be
a voting member of the technical evaluation panel, and may also serve
as the chairperson of the panel, unless he/she is prohibited by law or
contracting activity procedures to do so.
(2) The project officer
is responsible for recommending panel members who are knowledgeable in
the technical aspects of the acquisition and who are competent to identify
strengths and weaknesses of the various proposals. The program training
requirements specified in 307.170 must be adhered to when selecting prospective
panel members (government employees).
(3) The project officer
shall ensure that persons possessing expertise and experience in addressing
issues relative to sex, race, national origin, and handicapped discrimination
are included as panel members in acquisitions which address those issues.
The intent is to balance the composition of the panel so that qualified
and concerned individuals may provide insight to other panel members regarding
ideas for, and approaches to be taken in, the evaluation of proposals.
(4) The project officer
is to submit the recommended list of panel members to an official within
the program office in a position at least one level above the project
officer, or in accordance with contracting activity procedures. This official
will review the recommendations and select the chairperson.
(5) The project officer
shall arrange for adequate and secure working space for the panel.
(C) Role of the contracting
officer. (1) The term "contracting officer," as used in this
subpart, may be the contracting officer or his/her designated representative
within the contracting office.
(2) The contracting officer
shall not serve as a member of the technical evaluation panel but should
be available to:
(i) Address the initial
meeting of the technical evaluation panel;
(ii) Provide assistance
to the evaluators as required; and
(iii) Ensure that the
scores adequately reflect the written technical report comments.
(D) Conflict of interest.
(1) If a panel member has an actual or apparent conflict of interest related
to a proposal
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under evaluation, he/she shall be removed from the panel and replaced
with another evaluator. If a suitable replacement is not available, the
panel shall perform the review without a replacement.
(2) For the purposes of
this subpart, conflicts of interest are defined in the Standards of Ethical
Conduct for Employees of the Executive Branch (5 CFR part 2635), Supplemental
Standards of Ethical Conduct for Employees of the Department of Health
and Human Services (5 CFR part 5501), and the Procurement Integrity Act.
For outside evaluators serving on the technical evaluation panel, see
paragraph (a)(3)(ii)(F) of this section.
(E) Continuity of evaluation
process. (1) The technical evaluation panel is responsible for evaluating
the original proposals, making recommendations to the chairperson regarding
weaknesses and deficiencies of proposals, and, if required by the contracting
officer, assisting the contracting officer during communications and discussions,
and reviewing supplemental, revised and/or final proposal revisions. To
the extent possible, the same evaluators should be available throughout
the entire evaluation and selection process to ensure continuity and consistency
in the treatment of proposals. The following are examples of circumstances
when it would not be necessary for the technical evaluation panel to evaluate
revised proposals submitted during the acquisition:
(i) The answers to questions
do not have a substantial impact on the proposal;
(ii) Final proposal revisions
are not materially different from the original proposals; or
(iii) The rankings of
the offerors are not affected because the revisions to the proposals are
relatively minor.
(2) The chairperson, with
the concurrence of the contracting officer, may decide not to have the
panel evaluate the revised proposals. Whenever this decision is made,
it must be fully documented by the chairperson and approved by the contracting
officer.
(3) When technical evaluation
panel meetings are considered necessary by the contracting officer, the
attendance of evaluators is mandatory. When the chairperson determines
that an evaluator's failure to attend the meetings is prejudicial to the
evaluation, the chairperson shall remove and/or replace the individual
after discussing the situation with the contracting officer and obtaining
his/her concurrence and the approval of the official responsible for appointing
the panel members.
(4) Whenever continuity
of the evaluation process is not possible, and either new evaluators are
selected or a reduced panel is decided upon, each proposal which is being
reviewed at any stage of the acquisition shall be reviewed at that stage
by all members of the revised panel unless it is impractical to do so
because of the receipt of an unusually large number of proposals.
(F) Use of outside evaluators.
(1) The National Institutes of Health (NIH) and the Substance Abuse and
Mental Health Services Administration (SAMHSA) are required to have a
peer review of research and development contracts in accordance with Public
Law 93-352 as amended by Public Law 94-63; 42 U.S.C. 289 a and 42 U.S.C.
290aa-3 respectively. This legislation requires peer review of projects
and proposals, and not more than one-fourth of the members of a peer review
group may be officers or employees of the United States. NIH and SAMHSA
are therefore exempt from the provisions of 315.305(a)(3)(ii) to the extent
that 42 U.S.C. 289a and 290aa-3 apply. Conflicts of interest are addressed
at 42 CFR part 52h. Other agencies subject to statutory scientific peer
review requirements are also exempt from the requirements of paragraph
(a)(3)(ii) of this section to the extent that these requirements are inconsistent
with their legislative requirements.
(2) In general, decisions
to disclose proposals outside the Government for evaluation purposes shall
be made by the official responsible for appointing panel members for the
acquisition, after consultation with the contracting officer and in accordance
with operating division procedures. The decision to disclose either a
solicited or unsolicited proposal outside the Government for the purpose
of obtaining an evaluation shall take into consideration the avoidance
of organizational conflicts of interest and any competitive relationship
between the submitter of the proposal and the prospective evaluator(s).
(3) When it is determined
to disclose a solicited proposal outside the Government for evaluation
purposes, the following or similar conditions shall be included in the
written agreement with evaluator(s) prior to disclosure:
Conditions for Evaluating Proposals
The evaluator agrees to
use the data (trade secrets, business data, and technical data) contained
in the proposal only for evaluation purposes.
The foregoing requirement
does not apply to data obtained from another source without restriction.
Any notice or legend placed
on the proposal by either the Department or the submitter of the proposal
shall be applied to any reproduction or abstract provided to the evaluator
or made by the evaluator. Upon completion of the evaluation, the evaluator
shall return the Government furnished copy of the proposal or abstract,
and all copies thereof, to the Departmental office which initially furnished
the proposal for evaluation.
Unless authorized by the
Department's initiating office, the evaluator shall not contact the submitter
of the proposal concerning any aspects of its contents.
The evaluator is obligated
to obtain commitments from its employees and subcontractors, as necessary,
to effect the purposes of these conditions.
(iii) Receipt of proposals.
(A) After the closing
date set by the solicitation for the receipt of proposals, the contracting
officer will use a transmittal memorandum to forward the technical proposals
to the project officer or chairperson for evaluation. The business proposals
will be retained by the contracting officer for evaluation.
(B) The transmittal memorandum
shall include at least the following:
(1) A list of the names
of the organizations submitting proposals;
(2) A reference to the
need to preserve the integrity of the source selection process;
(3) A statement that only
the contracting officer is to conduct discussions.
(4) A requirement for
a technical evaluation report in accordance with paragraph (a)(3)(vi)
of this section; and
(5) The establishment
of a date for receipt of the technical evaluation report.
(iv) Convening the technical
evaluation panel.
(A) Normally, the technical
evaluation panel will convene to evaluate the proposals. However, there
may be situations when the contracting officer determines that it is not
feasible for the panel to convene. Whenever this decision is made, care
must be taken to assure that the technical review is closely monitored
to produce acceptable results.
(B) When a panel is convened,
the chairperson is responsible for the control of the technical proposals
provided to him/her by the contracting officer for use during the evaluation
process. The chairperson will generally distribute the technical proposals
prior to the initial panel meeting and will establish procedures for securing
the proposals whenever they are not being evaluated to insure their confidentiality.
After the evaluation is complete, all proposals must be returned to the
contracting officer by the chairperson.
(C) The contracting officer
shall address the initial meeting of the panel and state the basic rules
for conducting
[[Page 4237]]
the evaluation. The contracting officer shall provide written guidance
to the panel if he/she is unable to attend the initial panel meeting.
The guidance should include:
(1) Explanation of conflicts
of interest;
(2) The necessity to read
and understand the solicitation, especially the statement of work and
evaluation criteria, prior to reading the proposals;
(3) The need for evaluators
to restrict the review to only the solicitation and the contents of the
technical proposals;
(4) The need for each
evaluator to review all the proposals;
(5) The need to watch
for ambiguities, inconsistencies, errors, and deficiencies which should
be surfaced during the evaluation process;
(6) An explanation of
the evaluation process and what will be expected of the evaluators throughout
the process;
(7) The need for the evaluators
to be aware of the requirement to have complete written documentation
of the individual strengths and weaknesses which affect the scoring of
the proposals; and
(8) An instruction directing
the evaluators that, until the award is made, information concerning the
acquisition must not be disclosed to any person not directly involved
in the evaluation process.
(v) Rating and ranking
of proposals. The evaluators will individually read each proposal, describe
tentative strengths and weaknesses, and independently develop preliminary
scores in relation to each evaluation factor set forth in the solicitation.
After this has been accomplished, the evaluators shall discuss in detail
the individual strengths and weakness described by each evaluator and,
if possible, arrive at a common understanding of the major strengths and
weaknesses and the potential for correcting each offeror's weakness(es).
Each evaluator will score each proposal, and then the technical evaluation
panel will collectively rank the proposals. Generally, ranking will be
determined by adding the numerical scores assigned to the evaluation factors
and finding the average for each offeror. The evaluators should then identify
whether each proposal is acceptable or unacceptable. Predetermined cutoff
scores shall not be employed.
(vi) Technical evaluation
report. A technical evaluation report shall be prepared and furnished
to the contracting officer by the chairperson and maintained as a permanent
record in the contract file. The report must reflect the ranking of the
proposals and identify each proposal as acceptable or unacceptable. The
report must also include a narrative evaluation specifying the strengths
and weaknesses of each proposal, a copy of each signed rating sheet, and
any reservations, qualifications, or areas to be addressed that might
bear upon the selection of sources for negotiation and award. Concrete
technical reasons supporting a determination of unacceptability with regard
to any proposal must be included. The report should also include specific
points and questions which are to be raised in discussions or negotiations.
315.306 Exchanges with offerors after receipt of proposals.
(d) Exchanges with offerors
after establishment of the competitive range. The contracting officer
and project officer should discuss the uncertainties and/or deficiencies
that are included in the technical evaluation report for each proposal
in the competitive range. Technical questions should be developed by the
project officer and/or the technical evaluation panel and should be included
in the technical evaluation report. The management, past performance and
cost or price questions should be prepared by the contracting officer
with assistance from the project officer and/or panel as required. The
method of requesting offerors in the competitive range to submit the additional
information will vary depending on the complexity of the questions, the
extent of additional information requested, the time needed to analyze
the responses, and the time frame for making the award. However, to the
extent practicable, all questions and answers should be in writing. Each
offeror in the competitive range shall be given an equitable period of
time for preparation of responses to questions to the extent practicable.
The questions should be developed so as to disclose the ambiguities, uncertainties,
and deficiencies of the offeror.
315.307 Proposal revisions.
(b) Final proposal revisions
are subject to a final evaluation of price or cost and other salient factors
by the contracting officer and project officer with assistance from a
cost/price analyst, and an evaluation of technical factors by the technical
evaluation panel, as necessary. Proposals may be technically rescored
and reranked by the technical evaluation panel and a technical evaluation
report prepared. To the extent practicable, the evaluation shall be performed
by the same evaluators who reviewed the original proposals. A final evaluation
of past performance will be made by the contracting officer and project
officer. The technical evaluation panel may be involved in the final evaluation
of past performance if the panel is comprised solely of Government personnel.
315.370 Finalization of details with the selected source.
(a) After selection of
the successful proposal, finalization of details with the selected offeror
may be conducted if deemed necessary. However, no factor which could have
any effect on the selection process may be introduced after the common
cutoff date for receipt of final proposal revisions. The finalization
process shall not in any way prejudice the competitive interest or rights
of the unsuccessful offerors. Finalization of details with the selected
offeror shall be restricted to definitizing the final agreement on terms
and conditions, assuming none of these factors were involved in the selection
process.
(b) Caution must be exercised
by the contracting officer to insure that the finalization process is
not used to change the requirements contained in the solicitation, nor
to make any other changes which would impact on the source selection decision.
Whenever a material change occurs in the requirements, the competition
must be reopened and all offerors submitting final proposal revisions
must be given an opportunity to resubmit proposals based on the revised
requirements. Whenever there is a question as to whether a change is material,
the contracting officer should obtain the advice of technical personnel
and legal counsel before reopening the competition. Significant changes
in the offeror's cost proposal may also necessitate a reopening of competition
if the changes alter the factors involved in the original selection process.
(c) Should finalization
details beyond those specified in paragraph (a) of this section be required
for any reason, discussions must be reopened with all offerors submitting
final proposal revisions.
(d) Upon finalization
of details, the contracting officer should obtain a confirmation letter
from the successful offeror which includes any revisions to the technical
proposal, the agreed to price or cost, and, as applicable, a certificate
of current cost or pricing data.
315.371 Contract preparation and award.
(a) The contracting officer
must perform the following actions after finalization details have been
completed:
[[Page 4238]]
(1) Prepare the negotiation
memorandum in accordance with 315.372;
(2) Prepare the contract
containing all agreed to terms and conditions and clauses required by
law or regulation;
(3) Include in the contract
file the pertinent documents referenced in FAR 4.803; and
(4) Obtain the appropriate
approval of the proposed contract award(s) in accordance with subpart
304.71 and contracting activity procedures.
(b) After receiving the
required approvals, the contract should be transmitted to the prospective
contractor for signature. The prospective contractor must be informed
that the contract is not effective until accepted by the contracting officer.
(c) The contract shall
not be issued until the finance office certifies that the funds are available
for obligation.
315.372 Preparation of negotiation memorandum.
The negotiation memorandum
or summary of negotiations is a complete record of all actions leading
to award of a contract and is prepared by the contract negotiator to support
the source selection decision discussed in FAR 15.308. It should be in
sufficient detail to explain and support the rationale, judgments, and
authorities upon which all actions were predicated. The memorandum will
document the negotiation process and reflect the negotiator's actions,
skills, and judgments in concluding a satisfactory agreement for the Government.
Negotiation memorandums shall contain discussion of the following or a
statement of nonapplicability; however, information already contained
in the contract file need not be reiterated. A reference to the document
which contains the required information is acceptable.
(a) Description of articles
and services and period of performance. A description of articles and
services, quantity, unit price, total contract amount, and period of contract
performance should be set forth ( if Supplemental Agreement--show previous
contract amount as revised, as well as information with respect to the
period of performance).
(b) Acquisition planning.
Summarize or reference any acquisition planning activities that have taken
place.
(c) Synopsis of acquisition.
A statement as to whether the acquisition has or has not been publicized
in accordance with FAR Subpart 5.2. A brief statement of explanation should
be included with reference to the specific basis for exemption under the
FAR, if applicable.
(d) Contract type. Provide
sufficient detail to support the type of contractual instrument recommended
for the acquisition. If the contract is a cost-sharing type, explain the
essential cost-sharing features.
(e) Extent of competition.
The extent to which full and open competition was solicited and obtained
must be discussed. The discussion shall include the date of solicitation,
sources solicited, and solicitation results. If a late proposal was received,
discuss whether or not the late proposal was evaluated and the rationale
for the decision.
(f) Technical evaluation.
Summarize or reference the results presented in the technical evaluation
report.
(g) Business evaluation.
Summarize or reference results presented in the business report.
(h) Past performance.
Summarize or reference results of past performance evaluation and reference
checks.
(i) Competitive range
(if applicable). Describe how the competitive range was determined and
state the offerors who were included in the competitive range and the
ones who were not.
(j) Cost breakdown and
analysis. Include a complete cost breakdown together with the negotiator's
analysis of the estimated cost by individual cost elements. The negotiator's
analysis should contain information such as:
(1) A comparison of cost
factors proposed in the instant case with actual factors used in earlier
contracts, using the same cost centers of the same supplier or cost centers
of other sources having recent contracts for the same or similar item.
(2) Any pertinent Government-conducted
audit of the proposed contractor's record of any pertinent cost advisory
report.
(3) Any pertinent technical
evaluation inputs as to necessity, allocability and reasonableness of
labor, material and other direct expenses.
(4) Any other pertinent
information to fully support the basis for and rationale of the cost analysis.
(5) If the contract is
an incentive type, discuss all elements of profit and fee structure.
(6) A justification of
the reasonableness of the proposed contractor's estimated profit or fixed
fee, considering the requirements of FAR 15.404-4 and HHSAR 315.404-4.
(k) Cost realism. Describe
the cost realism analysis performed on proposals.
(l) Government-furnished
property and Government-provided facilities. With respect to Government-furnished
or Government-provided facilities, equipment, tooling, or other property,
include the following:
(1) Where no property
is to be provided, a statement to that effect.
(2) Where property is
to be provided, a full description, the estimated dollar value, the basis
of price comparison with competitors, and the basis of rental charge,
if rental is involved.
(3) Where the furnishing
of any property or the extent has not been determined and is left open
for future resolution, a detailed explanation.
(m) Negotiations. Include
a statement as to the date and place negotiations were conducted, and
identify members of both the Government and contractor negotiating teams
by area of responsibility. Include negotiation details relative to the
statement of work, terms and conditions, and special provisions. The results
of cost or price negotiations must include the information required by
FAR 31.109 and 15.406-3. In addition, if cost or pricing data was required
to be submitted, the negotiation record must also contain the extent to
which the contracting officer relied upon the factual cost or pricing
data submitted and used in negotiating the cost or price.
(n) Other considerations.
Include coverage of areas such as:
(1) Financial data with
respect to a contractor's capacity and stability.
(2) Determination of contractor
responsibility.
(3) Details as to why
the method of payment, such as progress payment, advance payment, etc.,
is necessary. Also cite any required D & F's.
(4) Information with respect
to obtaining of a certificate of current cost or pricing data.
(5) Other required special
approvals.
(6) If the contract represents
an extension of previous work, the status of funds and performance under
the prior contract(s) should be reflected. Also, a determination should
be made that the Government has obtained enough actual or potential value
from the work previously performed to warrant continuation with the same
contractor. (Project officer should furnish the necessary information.)
(7) If the contract was
awarded by full and open competition, state where the unsuccessful offerors'
proposals are filed.
(8) State that equal opportunity
provisions of the proposed contract have been explained to the contractor,
and it is aware of its responsibilities. Also state whether or not a clearance
is required.
[[Page 4239]]
(9) If the contract is
for services, a statement must be made, in accordance with FAR 37.103,
that the services to be acquired are nonpersonal in nature.
(o) Terms and conditions.
Identify the general and special clauses and conditions that are contained
in the contract, such as option arrangements, incremental funding, anticipatory
costs, deviations from standard clauses, etc. The basis and rationale
for inclusion of any special terms and conditions must be stated and,
where applicable, the document which granted approval for its use identified.
(p) Recommendation. A
brief statement setting forth the recommendations for award.
(q) Signature. The memorandum
must be signed by the contract negotiator who prepared the memorandum.
Subpart 315.4--Contract Pricing
315.404 Proposal analysis.
315.404-2 Information to support proposal analysis.
(a)(2) When some or all
information sufficient to determine the reasonableness of the proposed
cost or price is already available or can be obtained by phone from the
cognizant audit agency, contracting officers may request less-than-complete
field pricing support (specifying in the request the information needed)
or may waive in writing the requirement for audit and field pricing support
by documenting the file to indicate what information is to be used instead
of the audit report and the field pricing report.
(3) When initiating audit
and field pricing support, the contracting officer shall do so by sending
a request to the cognizant administrative contracting officer (ACO), with
an information copy to the cognizant audit office. When field pricing
support is not available, the contracting officer shall initiate an audit
by sending, in accordance with agency procedures, two (2) copies of the
request to the OIG Office of Audits' Regional Audit Director. In both
cases, the contracting officer shall, in the request:
(i) Prescribe the extent
of the support needed;
(ii) State the specific
areas for which input is required;
(iii)Include the information
necessary to perform the review (such as the offeror's proposal and the
applicable portions of the solicitation, particularly those describing
requirements and delivery schedules);
(iv) Provide the complete
address of the location of the offeror's financial records that support
the proposal;
(v) Identify the office
having audit responsibility if other than the HHS Regional Audit Office;
and
(vi) Specify a due date
for receipt of a verbal report to be followed by a written audit report.
(If the time available is not adequate to permit satisfactory coverage
of the proposal, the auditor shall so advise the contracting officer and
indicate the additional time needed.) One copy of the audit request letter
that was submitted to the Regional Audit Director and a complete copy
of the contract price proposal shall be submitted to OIG/OA/DAC. Whenever,
an audit review has been conducted by the Office of Audits, two (2) copies
of the memorandum of negotiation shall be forwarded to OIG/OA/DAC by the
contracting officer.
315.404-4 Profit.
(b) Policy. (1) The structured
approach for determining profit or fee (hereafter referred to as profit)
provides contracting officers with a technique that will ensure consideration
of the relative value of the appropriate profit factors described in paragraph
(d) of this section in the establishment of a profit objective for the
conduct of negotiations. The contracting officer's analysis of these profit
factors is based on information available to him/her prior to negotiations.
The information is furnished in proposals, audit data, assessment reports,
preaward surveys and the like. The structured approach also provides a
basis for documentation of this objective, including an explanation of
any significant departure from this objective in reaching an agreement.
The extent of documentation should be directly related to the dollar value
and complexity of the proposed acquisition. Additionally, the negotiation
process does not require agreement on either estimated cost elements or
profit elements. The profit objective is a part of an overall negotiation
objective which, as a going-in objective, bears a distinct relationship
to the cost objective and any proposed sharing arrangement. Since profit
is merely one of several interrelated variables, the Government negotiator
generally should not complete the profit negotiation without simultaneously
agreeing on the other variables. Specific agreement on the exact weights
or values of the individual profit factors is not required and should
not be attempted.
(ii) The profit-analysis
factors set forth at FAR 15.404-4(d) shall be used for establishing profit
objectives under the following listed circumstances. Generally, it is
expected that this method will be supported in a manner similar to that
used in the structured approach (profit factor breakdown and documentation
of the profit objective); however, factors within FAR 15.404-4(d) considered
inapplicable to the acquisition will be excluded from the profit objective.
(A) Contracts not expected
to exceed $100,000;
(B) Architect-engineer
contracts;
(C) Management contracts
for operations and/or maintenance of Government facilities;
(D) Construction contracts;
(E) Contracts primarily
requiring delivery of material supplies by subcontractors;
(F) Termination settlements;
and
(G) Cost-plus-award-fee
contracts (However, contracting officers may find it advantageous to perform
a structured profit analysis as an aid in arriving at an appropriate fee
arrangement). Other exceptions may be made in the negotiation of contracts
having unusual pricing situations, but shall be justified in writing by
the contracting officer in situations where the structured approach is
determined to be unsuitable.
(c) Contracting officer
responsibilities. A profit objective is that part of the estimated contract
price objective or value which, in the judgment of the contracting officer,
constitutes an appropriate amount of profit for the acquisition being
considered. This objective should realistically reflect the total overall
task to be performed and the requirements placed on the contractor. Development
of a profit objective should not begin until a thorough review of proposed
contract work has been made; a review of all available knowledge regarding
the contractor pursuant to FAR subpart 9.1, including audit data, preaward
survey reports and financial statements, as appropriate, has been conducted;
and an analysis of the contractor's cost estimate and comparison with
the Government's estimate or projection of cost has been made.
(d) Profit--analysis factors
(1) Common factors. The following factors shall be considered in all cases
in which profit is to be negotiated. The weight ranges listed after each
factor shall be used in all instances where the structured approach is
used.
------------------------------------------------------------------------
Profit factors Weight ranges (in percent)
------------------------------------------------------------------------
Contractor effort:
Material acquisition................. 1 to 5.
Direct labor......................... 4 to 15.
Overhead............................. 4 to 9.
General management (G&A)............. 4 to 8.
[[Page 4240]]
Other costs.......................... 1 to 5.
Other factors:
Cost risk............................ 0 to 7.
Investment........................... -2 to +2.
Performance.......................... -1 to +1.
Socioeconomic programs............... -.5 to +.5.
Special situations...................
------------------------------------------------------------------------
(i) Under the structured
approach, the contracting officer shall first measure "Contractor Effort"
by the assignment of a profit percentage within the designated weight ranges
to each element of contract cost recognized by the contracting officer.
The amount calculated for the cost of money for facilities capital is not
to be included for the computation of profit as part of the cost base. The
suggested categories under "Contractor Effort" are for reference
purposes only. Often individual proposals will be in a different format,
but since these categories are broad and basic, they provide sufficient
guidance to evaluate all other items of cost.
(ii) After computing a total
dollar profit for "Contractor Effort," the contracting officer
shall then calculate the specific profit dollars assigned for cost risk,
investment, performance, socioeconomic programs, and special situations.
This is accomplished by multiplying the total Government Cost Objective,
exclusive of any cost of money for facilities capital, by the specific weight
assigned to the elements within the "Other Factors" category.
Form HHS-674, Structured Approach Profit/Fee Objective, should be used,
as appropriate, to facilitate the calculation of this profit objective.
Form HHS-674 is illustrated in 353.370-674.
(iii) In making a judgment
of the value of each factor, the contracting officer should be governed
by the definition, description, and purpose of the factors together with
considerations for evaluating them.
(iv) The structured approach
was designed for arriving at profit objectives for other than nonprofit
organizations. However, if appropriate adjustments are made to reflect differences
between profit and nonprofit organizations, the structured approach can
be used as a basis for arriving at profit objectives for nonprofit organizations.
Therefore, the structured approach, as modified in paragraph (d)(1)(iv)(B)
of this section, shall be used to establish profit objectives for nonprofit
organizations.
(A) For purposes of this
section, nonprofit organizations are defined as those business entities
organized and operated exclusively for charitable, scientific, or educational
purposes, no part of the net earnings of which inure to the benefit of any
private shareholder or individual, and which are exempt from Federal income
taxation under Section 501 of the Internal Revenue Code.
(B) For contracts with nonprofit
organizations where profit is involved, an adjustment of up to 3 percentage
points will be subtracted from the total profit objective percentage. In
developing this adjustment, it will be necessary to consider the following
factors;
(1) Tax position benefits;
(2) Granting of financing
through advance payments; and
(3) Other pertinent factors
which may work to either the advantage or disadvantage of the contractor
in its position as a nonprofit organization.
(2) Contractor effort. Contractor
effort is a measure of how much the contractor is expected to contribute
to the overall effort necessary to meet the contract performance requirement
in an efficient manner. This factor, which is apart from the contractor's
responsibility for contract performance, takes into account what resources
are necessary and what the contractor must do to accomplish a conversion
of ideas and material into the final service or product called for in the
contract. This is a recognition that within a given performance output,
or within a given sales dollar figure, necessary efforts on the part of
individual contractors can vary widely in both value and quantity, and that
the profit objective should reflect the extent and nature of the contractor's
contribution to total performance. A major consideration, particularly in
connection with experimental, developmental, or research work, is the difficulty
or complexity of the work to be performed, and the unusual demands of the
contract, such as whether the project involves a new approach unrelated
to existing technology and/or equipment or only refinements to these items.
The evaluation of this factor requires an analysis of the cost content of
the proposed contract as follows:
(i) Material acquisition.
(Subcontracted items, purchased parts, and other material.) Analysis of
these cost items shall include an evaluation of the managerial and technical
effort necessary to obtain the required subcontracted items, purchased parts,
material or services. The contracting officer shall determine whether the
contractor will obtain the items or services by routine order from readily
available sources or by detailed subcontracts for which the prime contractor
will be required to develop complex specifications. Consideration shall
also be given to the managerial and technical efforts necessary for the
prime contractor to select subcontractors and to perform subcontract administration
functions. In application of this criterion, it should be recognized that
the contribution of the prime contractor to its purchasing program may be
substantial. Normally, the lowest unadjusted weight for direct material
is 2 percent. A weighting of less than 2 percent would be appropriate only
in unusual circumstances when there is a minimal contribution by the contractor.
(ii) Direct labor. (Professional,
service, manufacturing and other labor). Analysis of the various labor categories
of the cost content of the contract should include evaluation of the comparative
quality and quantity of professional and semiprofessional talents, manufacturing
and service skills, and experience to be employed. In evaluating professional
and semiprofessional labor for the purpose of assigning profit dollars,
consideration should be given to the amount of notable scientific talent
or unusual or scarce talent needed in contrast to nonprofessional effort.
The assessment should consider the contribution this talent will provide
toward the achievement of contract objectives. Since nonprofessional labor
is relatively plentiful and rather easily obtained by the contractor and
is less critical to the successful performance of contract objectives, it
cannot be weighted nearly as high as professional or semiprofessional labor.
Service contract labor should be evaluated in a like manner by assigning
higher weights to engineering or professional type skills required for contract
performance. Similarly, the variety of manufacturing and other categories
of labor skills required and the contractor's manpower resources for meeting
these requirements should be considered. For purposes of evaluation, categories
of labor (i.e., quality control, receiving and inspection, etc.) which do
not fall within the definition for professional, service or manufacturing
labor may be categorized as appropriate. However, the same evaluation considerations
as outlined in this paragraph will be applied.
(iii) Overhead and general
management (G&A). (A) Analysis of these overhead items of cost should include
the evaluation of the makeup of these expenses and how much they contribute
to contract performance. To the extent practicable, analysis should include
a determination of the amount of labor within these overhead pools and how
this labor should be treated if it were considered as direct labor under
[[Page 4241]]
the contract. The allocable labor elements should be given the same profit
considerations that they would receive if they were treated as direct labor.
The other elements of these overhead pools should be evaluated to determine
whether they are routine expenses, such as utilities and maintenance, and
hence given lesser profit consideration, or whether they are significant
contributing elements. The composite of the individual determinations in
relation to the elements of the overhead pools will be the profit consideration
given the pools as a whole. The procedure for assigning relative values
to these overhead expenses differs from the method used in assigning values
of the direct labor. The upper and lower limits assignable to the direct
labor are absolute. In the case of overhead expenses, individual expenses
may be assigned values outside the range as long as the composite ratio
is within the range.
(B) It is not necessary
that the contractor's accounting system break down overhead expenses within
the classifications of research overhead, other overhead pools, and general
administrative expenses, unless dictated otherwise by Cost Accounting Standards
(CAS). The contractor whose accounting system reflects only one overhead
rate on all direct labor need not change its system (if CAS exempt) to correspond
with these classifications. The contracting officer, in an evaluation of
such a contractor's overhead rate, could break out the applicable sections
of the composite rate which could be classified as research overhead, other
overhead pools, and general and administrative expenses, and follow the
appropriate evaluation technique.
(C) Management problems
surface in various degrees and the management expertise exercised to solve
them should be considered as an element of profit. For example, a contract
for a new program for research or an item which is on the cutting edge of
the state of the art will cause more problems and require more managerial
time and abilities of a higher order than a follow-on contract. If new contracts
create more problems and require a higher profit weight, follow-ons should
be adjusted downward because many of the problems should have been solved.
In any event, an evaluation should be made of the underlying managerial
effort involved on a case-by-case basis.
(D) It may not be necessary
for the contracting officer to make a separate profit evaluation of overhead
expenses in connection with each acquisition action for substantially the
same project with the same contractor. Where an analysis of the profit weight
to be assigned to the overhead pool has been made, that weight assigned
may be used for future acquisitions with the same contractor until there
is a change in the cost composition of the overhead pool or the contract
circumstances, or the factors discussed in paragraph (d)(2)(iii)(C) of this
section are involved.
(iv) Other costs. Analysis
of this factor should include all other direct costs associated with contractor
performance (e.g., travel and relocation, direct support, and consultants).
Analysis of these items of cost should include, the significance of the
cost of contract performance, nature of the cost, and how much they contribute
to contract performance. Normally, travel costs require minimal administrative
effort by the contractor and, therefore, usually receive a weight no greater
than 1%. Also, the contractor may designate individuals as "consultants"
but in reality these individuals may be obtained by the contractor to supplement
its workforce in the performance of routine duties required by contract.
These costs would normally receive a minimum weight. However, there will
be instances when the contractor may be required to locate and obtain the
services of consultants having expertise in fields such as medicine or human
services. In these instances, the contractor will be required to expend
greater managerial and technical effort to obtain these services and, consequently,
the costs should receive a much greater weight.
(3) Other factors (i) Contract
cost risk. The contract type employed basically determines the degree of
cost risk assumed by the contractor. For example, where a portion of the
risk has been shifted to the Government through cost-reimbursement provisions,
unusual contingency provisions, or other risk-reducing measures, the amount
of profit should be less than where the contractor assumes all the risk.
(A) In developing the prenegotiation
profit objective, the contracting officer will need to consider the type
of contract anticipated to be negotiated and the contractor risk associated
therewith when selecting the position in the weight range for profit that
is appropriate for the risk to be borne by the contractor. This factor should
be one of the most important in arriving at prenegotiation profit objective.
Evaluation of this risk requires a determination of the degree of cost responsibility
the contractor assumes; the reliability of the cost estimates in relation
to the task assumed; and the complexity of the task assumed by the contractor.
This factor is specifically limited to the risk of contract costs. Thus,
risks on the part of the contractor such as reputation, losing a commercial
market, risk of losing potential profits in other fields, or any risk which
falls on the contracting office, such as the risk of not acquiring a satisfactory
report, are not within the scope of this factor.
(B) The first and basic
determination of the degree of cost responsibility assumed by the contractor
is related to the sharing of total risk of contract cost by the Government
and the contractor through the selection of contract type. The extremes
are a cost-plus-a-
fixed-fee contract requiring the contractor to use its best efforts to perform
a task and a firm fixed-price contract for a service or a complex item.
A cost-plus-a-fixed-fee contract would reflect a minimum assumption of cost
responsibility, whereas a firm-fixed-price contract would reflect a complete
assumption of cost responsibility. Where proper contract selection has been
made, the regard for risk by contract type would usually fall into the following
percentage ranges:
------------------------------------------------------------------------
Percent
------------------------------------------------------------------------
Cost-reimbursement type contracts............................. 0-3
Fixed-price type contracts.................................... 2-7
------------------------------------------------------------------------
(C) The second determination
is that of the reliability of the cost estimates. Sound price negotiation
requires well-defined contract objectives and reliable cost estimates. Prior
experience assists the contractor in preparing reliable cost estimates on
new acquisitions for similar related efforts. An excessive cost estimate
reduces the possibility that the cost of performance will exceed the contract
price, thereby reducing the contractor's assumption of contract cost risk.
(D) The third determination
is that of the difficulty of the contractor's task. The contractor's task
can be difficult or easy, regardless of the type of contract.
(E) Contractors are likely
to assume greater cost risk only if contracting officers objectively analyze
the risk incident to proposed contracts and are willing to compensate contractors
for it. Generally, a cost-plus-fixed fee contract will not justify a reward
for risk in excess of 0.5 percent, nor will a firm fixed-price contract
justify a reward of less than the minimum in the structured approach. Where
proper contract-type selection has been made, the reward for risk, by contract
type, will usually fall into the following percentage ranges:
(1) Type of contract and
percentage ranges for profit objectives developed by using the structured
approach for
[[Page 4242]]
research and development and manufacturing contracts:
------------------------------------------------------------------------
Percent
------------------------------------------------------------------------
Cost-Plus-fixed fee....................... 0 to 0.5
Cost-plus-incentive fee:
With cost incentive only................ 1 to 2
With multiple incentives................ 1.5 to 3
Fixed-price-incentive:
With cost incentive only................ 2 to 4
With multiple incentives................ 3 to 5
Prospective price redetermination....... 3 to 5
Firm fixed-price........................ 5 to 7
------------------------------------------------------------------------
(2) Type of contract and
percentage ranges for profit objectives developed by using the structured
approach for service contracts:
------------------------------------------------------------------------
Percent
------------------------------------------------------------------------
Cost-plus-fixed-fee....................... 0 to 0.5
Cost-plus-incentive fee................... 1 to 2
Fixed-price incentive..................... 2 to 3
Firm fixed-price.......................... 3 to 4
------------------------------------------------------------------------
(F) These ranges may not
be appropriate for all acquisitions. For instance, a fixed-price-incentive
contract that is closely priced with a low ceiling price and high incentive
share may be tantamount to a firm fixed-price contract. In this situation,
the contracting officer may determine that a basis exists for high confidence
in the reasonableness of the estimate and that little opportunity exists
for cost reduction without extraordinary efforts. On the other hand, a
contract with a high ceiling and low incentive formula can be considered
to contain cost-plus incentive-fee contract features. In this situation,
the contracting officer may determine that the Government is retaining
much of the contract cost responsibility and that the risk assumed by
the contractor is minimal. Similarly, if a cost-plus-incentive-fee contract
includes an unlimited downward (negative) fee adjustment on cost control,
it could be comparable to a fixed-price-incentive contract. In such a
pricing environment, the contracting officer may determine that the Government
has transferred a greater amount of cost responsibility to the contractor
than is typical under a normal cost-plus-incentive-fee contract.
(G) The contractor's subcontracting
program may have a significant impact on the contractor's acceptance or
risk under a contract form. It could cause risk to increase or decrease
in terms of both cost and performance. This consideration should be a
part of the contracting officer's overall evaluation in selecting a factor
to apply for cost risk. It may be determined, for instance, that the prime
contractor has effectively transferred real cost risk to a subcontractor
and the contract cost risk evaluation may, as a result, be below the range
which would otherwise apply for the contract type being proposed. The
contract cost risk evaluation should not be lowered, however, merely on
the basis that a substantial portion of the contract costs represents
subcontracts without any substantial transfer of contractor's risk.
(H) In making a contract
cost risk evaluation in an acquisition action that involves definitization
of a letter contract, unpriced change orders, and unpriced orders under
basic ordering agreements, consideration should be given to the effect
on total contract cost risk as a result of having partial performance
before definitization. Under some circumstances it may be reasoned that
the total amount of cost risk has been effectively reduced. Under other
circumstances it may be apparent that the contractor's cost risk remained
substantially unchanged. To be equitable, the determination of profit
weight for application to the total of all recognized costs, both those
incurred and those yet to be expended, must be made with consideration
to all attendant circumstances--not just the portion of costs incurred
or percentage of work completed prior to definitization.
(I) Time and material
and labor hour contracts will be considered to be cost-plus-a-fixed-fee
contracts for the purpose of establishing profit weights unless otherwise
exempt under paragraph (b)(1)(ii) of this section in the evaluation of
the contractor's assumption of contract cost risk.
(ii) Investment. HHS encourages
its contractors to perform their contracts with the minimum of financial,
facilities, or other assistance from the Government. As such, it is the
purpose of this factor to encourage the contractor to acquire and use
its own resources to the maximum extent possible. The evaluation of this
factor should include an analysis of the following:
(A) Facilities. (Including
equipment). To evaluate how this factor contributes to the profit objective
requires knowledge of the level of facilities utilization needed for contract
performance, the source and financing of the required facilities, and
the overall cost effectiveness of the facilities offered. Contractors
who furnish their own facilities which significantly contribute to lower
total contract costs should be provided with additional profit. On the
other hand, contractors who rely on the Government to provide or finance
needed facilities should receive a corresponding reduction in profit.
Cases between these examples should be evaluated on their merits with
either positive or negative adjustments, as appropriate, in profit being
made. However, where a highly facilitized contractor is to perform a contract
which does not benefit from this facilitization or where a contractor's
use of its facilities has a minimum cost impact on the contract, profit
need not be adjusted. When applicable, the prospective contractor's computation
of facilities capital cost of money for pricing purposed under CAS 414
can help the contracting officer identify the level of facilities investment
to be employed in contract performance.
(B) Payments. In analyzing
this factor, consideration should be given to the frequency of payments
by the Government to the contractor. The key to this weighting is to give
proper consideration to the impact the contract will have on the contractor's
cash flow. Generally, negative consideration should be given for advance
payments and payments more frequent than monthly with maximum reduction
being given as the contractor's working capital approaches zero. Positive
consideration should be given for payments less frequent than monthly
with additional consideration given for a capital turn-over rate on the
contract which is less than the contractor's or the industry's normal
capital turn-over rate.
(iii) Performance. (Cost-control
and other past accomplishments.) The contractor's past performance should
be evaluated in such areas as quality of service or product, meeting performance
schedules, efficiency in cost control (including need for and reasonableness
of cost incurred), accuracy and reliability of previous cost estimates,
degree of cooperation by the contractor (both business and technical),
timely processing of changes and compliance with other contractual provisions,
and management of subcontract programs. Where a contractor has consistently
achieved excellent results in these areas in comparison with other contractors
in similar circumstances, this performance merits a proportionately greater
opportunity for profit. Conversely, a poor record in this regard should
be reflected in determining what constitutes a fair and reasonable profit.
(iv) Federal socioeconomic
programs. This factor, which may apply to special circumstances or particular
acquisitions, relates to the extent of a contractor's successful participation
in Government sponsored programs such as small business, small disadvantaged
business, women-owned small business, and energy conservation efforts.
The contractor's policies and procedures which energetically support
[[Page 4243]]
Government socioeconomic programs and achieve successful results should
be given positive considerations. Conversely, failure or unwillingness
on the part of the contractor to support Government socioeconomic programs
should be viewed as evidence of poor performance for the purpose of establishing
a profit objective.
(v) Special situations
(A) Inventive and developmental contributions. The extent and nature of
contractor-initiated and financed independent development should be considered
in developing the profit objective, provided that the contracting officer
has made a determination that the effort will benefit the contract. The
importance of the development in furthering health and human services
purposes, the demonstrable initiative in determining the need and application
of the development, the extent of the contractor's cost risk, and whether
the development cost was recovered directly or indirectly from Government
sources should be weighed.
(B) Unusual pricing agreements.
Occasionally, unusual contract pricing arrangements are made with the
contractor wherein it agrees to cost ceilings, e.g., a ceiling on overhead
rates for conditions other than those discussed at FAR 42.707. In these
circumstances, the contractor should receive favorable consideration in
developing the profit objective.
(C) Negative factors.
Special situations need not be limited to those which only increase profit
levels. A negative consideration may be appropriate when the contractor
is expected to obtain spin-off-
benefits as a direct result of the contract (e.g., products or services
with commercial application).
(4) Facilities capital
cost of money. When facilities capital cost of money (cost of capital
committed to facilities) is included as an item of cost in the contractor's
proposal, a reduction in the profit objective shall be made in an amount
equal to the amount of facilities capital cost of money allowed in accordance
with the Facilities Capital Cost-of Money Cost Principal. If the contractor
does not propose this cost, a provision must be inserted in the contract
that facilities capital cost of money is not an allowable cost.
Subpart 315.6--Unsolicited Proposals
315.605 Content of unsolicited proposals.
(d) Certification by offeror--To
ensure against contacts between Department employees and prospective offerors
which would exceed the limits of advance guidance set forth in FAR 15.604
resulting in an unfair advantage to an offeror, the contracting officer
shall ensure that the following certification is furnished to the prospective
offeror and the executed certification is included as part of the resultant
unsolicited proposal:
Unsolicited Proposal
Certification by Offeror
This is to certify, to
the best of my knowledge and belief, that:
(a) This proposal has
not been prepared under Government supervision.
(b) The methods and approaches
stated in the proposal were developed by this offeror.
(c) Any contact with employees
of the Department of Health and Human Services has been within the limits
of appropriate advance guidance set forth in FAR 15.604.
(d) No prior commitments
were received from departmental employees regarding acceptance of this
proposal.
Date:------------------------------------------------------------------
Organization:----------------------------------------------------------
Name:------------------------------------------------------------------
Title:-----------------------------------------------------------------
(This certification shall be signed by a responsible official of the proposing
organization or a person authorized to contractually obligate the organization.)
315.606 Agency procedures.
(a) The HCA is responsible
for establishing procedures to comply with FAR 15.606(a).
(b) The HCA or his/her
designee shall be the point of contract for coordinating the receipt and
handling of unsolicited proposals.
315.606-1 Receipt and initial review.
(d) An unsolicited proposal
shall not be refused consideration merely because it was initially submitted
as a grant application. However, contracts shall not be awarded on the
basis of unsolicited proposals which have been rejected for grant support
on the grounds that they lack scientific merit.
315.609 Limited use of data.
The legend, Use and Disclosure
of Data, prescribed in FAR 15.609(a) is to be used by the offeror to restrict
the use of data for evaluation purposes only. However, data contained
within the unsolicited proposal may have to be disclosed as a result of
a request submitted pursuant to the Freedom of Information Act. Because
of this possibility, the following notice shall be furnished to all prospective
offerors of unsolicited proposals whenever the legend is provided in accordance
with FAR 15.604(a)(7):
The Government will attempt
to comply with the "Use and Disclosure of Data" legend.
However, the Government
may not be able to withhold a record (data, document, etc.) nor deny access
to a record requested by an individual (the public) when an obligation
is imposed on the Government under the Freedom of Information Act, 5 U.S.C.
552, as amended. The Government determination to withhold or disclose
a record will be based upon the particular circumstances involving the
record in question and whether the record may be exempted from disclosure
under the Freedom of Information Act. Records which the offeror considers
to be trade secrets and commercial or financial information and privileged
or confidential must be identified by the offeror as indicated in the
referenced legend.
PART 316--TYPES OF CONTRACTS
Subpart 316.3--Cost-Reimbursement Contracts
Sec.
316.307 Contract clauses.
Subpart 316.6--Time-and-Materials, Labor-Hour, and Letter Contracts
316.603 Letter contracts.
316.603-3 Limitations.
316.603-70 Information to be furnished when requesting authority to issue
a letter contract.
316.603-71 Approval for modifications to letter contracts.
Subpart 316.7--Agreements
316.770 Unauthorized types of agreements.
316.770-1 Letter of intent.
316.770-2 Memorandums of understanding.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 316.3--Cost-Reimbursement Contracts
316.307 Contract clauses.
(a) If the contract is
with a hospital (profit or nonprofit) for research and development, modify
the "Allowable Cost and Payment" clause at FAR 52.216-7 by deleting
from paragraph (a) the words "Subpart 31.2 of the Federal Acquisition
Regulation (FAR)" and substituting "45 CFR Part 74 Appendix
E."
(j) The contracting officer
shall insert the clause at 352.216-72, Additional Cost Principles, in
all solicitations and resultant cost-
reimbursement contracts.
Subpart 316.6--Time-and-Materials, Labor-Hour, and Letter Contracts
316.603 Letter contracts.
316.603-3 Limitations.
An official one level
above the contracting officer shall execute the prescribed written statement.
[[Page 4244]]
316.603-70 Information to be furnished when requesting authority to issue
a letter contract.
The following information
should be included by the contracting officer in any memorandum requesting
approval to issue a letter contract:
(a) Name and address of
proposed contractor.
(b) Location where contract
is to be performed.
(c) Contract number, including
modification number, if possible.
(d) Brief description
of work and services to be performed.
(e) Performance or delivery
schedule.
(f) Amount of letter contract.
(g) Estimated total amount
of definitized contract.
(h) Type of definitive
contract to be executed (fixed price, cost-
reimbursement, etc.)
(i) Statement of the necessity
and advantage to the Government of the use of the proposed letter contract.
(j) Statement of percentage
of the estimated cost that the obligation of funds represents. In rare
instances where the obligation represents 50 percent or more of the proposed
estimated cost of the acquisition, a justification for that obligation
must be included which would indicate the basis and necessity for the
obligation (e.g., the contractor requires a large initial outlay of funds
for major subcontract awards or an extensive purchase of materials to
meet an urgent delivery requirement). In every case, documentation must
assure that the amount to be obligated is not in excess of an amount reasonably
required to perform the work.
(k) Period of effectiveness
of a proposed letter contract. If more than 180 days, complete justification
must be given.
(l) Statement of any substantive
matters that need to be resolved.
316.603-71 Approval for modifications to letter contracts.
All letter contract modifications
(amendments) must be approved one level above the contracting officer.
Request for authority to issue letter contract modifications shall be
processed in the same manner as requests for authority to issue letter
contracts and shall include the following:
(a) Name and address of
the contractor.
(b) Description of work
and services.
(c) Date original request
was approved and indicate approving official.
(d) Letter contract number
and date issued.
(e) Complete justification
as to why the letter contract cannot be definitized at this time.
(f) Complete justification
as to why the level of funding must be increased.
(g) Complete justification
as to why the period of effectiveness is increased beyond 180 days, if
applicable.
(h) If the funding of
the letter contract is to be increased to more than 50 percent of the
estimated cost of the acquisition, the information required by 316.603-70(j)
must be included.
Subpart 316.7--Agreements
316.770 Unauthorized types of agreements.
316.770-1 Letters of intent.
A letter of intent is
an informal unauthorized agreement between the Government and a prospective
contractor which indicates that products or services will be produced
after completion of funding and/
or other contractual formalities. Letters of intent are often solicited
by prospective contractors or may be originated by Government personnel.
Letters of intent are not authorized by the FAR and are prohibited for
use by Department personnel.
316.770-2 Memorandums of understanding.
A "memorandum of
understanding" is an unauthorized agreement, usually drafted during
the course of negotiations, to modify mandatory FAR and HHSAR provisions
in such a manner as to make them more acceptable to a prospective contractor.
It may be used to bind the contracting officer in attempting to exercise
rights given the Government under the contract, or may contain other matters
directly contrary to the language of the solicitation or prospective contractual
document. Use of memorandums of understanding is not authorized. Any change
in a solicitation or contract shall be made by amendment or modification
to that document. When a change to a prescribed contract clause is considered
necessary, a deviation shall be requested.
PART 317--SPECIAL CONTRACTING METHODS
Subpart 317.2--Options
Sec.
317.201 Definition.
Subpart 317.71--Supply and Service Acquisitions Under the Government Employees
Training Act.
317.7100 Scope of subpart.
317.7101 Applicable regulations.
317.7102 Acquisition of training.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 317.2--Options
317.201 Definitions.
An option must:
(a) Identify the supplies
or services as a discrete option quantity in addition to the basic quantity
of supplies or services to be delivered under the initial contract award;
(b) Establish a price
or specify a method of calculation which will make the price certain;
(c) Be agreed to and included
in the initial contract award; and
(d) Permit the Government
the right to exercise the option unilaterally.
Subpart 317.71--Supply and Service Acquisitions Under the Government Employees
Training Act
317.7100 Scope of subpart.
This subpart provides
alternate methods for obtaining training under the Government Employees
Training Act (GETA), 5 U.S.C. Chapter 41.
317.7101 Applicable regulations.
Basic policy, standards,
and delegations of authority to approve training are contained in HHS
Personnel Manual Instruction 410-1.
317.7102 Acquisition of training.
(a) Off-the-shelf training,
whether for individuals or for groups of employees, shall be acquired
under the GETA by officials delegated authority in HHS Transmittal 95.5,
Personnel Manual (3/30/95).
(b) Training must be acquired
through the contracting office if there are costs for training course
development or for modification of off-the-shelf training courses.
PART 319--SMALL BUSINESS PROGRAMS
Subpart 319.2--Policies
Sec.
319.201 General policy.
Subpart 319.5--Set-Asides for Small Business
319.501 General.
319.506 Withdrawing or modifying set-asides.
Subpart 319.7--Subcontracting with Small Business, Small Disadvantaged
Business and Women-Owned Small Business Concerns
319.705 Responsibilities of the contracting officer under the subcontracting
assistance program.
319.705-5 Awards involving subcontracting plans.
[[Page 4245]]
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 319.2--Policies
319.201 General policy.
(d) The functional management
responsibilities for the Department's Small Business Program, (small,
HUBZone, small disadvantaged, and women-owned small business programs)
are delegated to the Director of the Office of Small and Disadvantaged
Business Utilization (OSDBU).
(e) (1) The Department's
Small Business Program shall be carried out by appointed small business
specialists (SBS) at the OPDIV Level. Appointments, and termination of
appointments, shall be made in writing by the head of the OPDIV after
consultation and concurrence by the Director, OSDBU. The small business
specialist shall be responsible directly to the appointing authority and
shall be at an organizational level outside the direct acquisition chain
of command, i.e., should report directly to the head of the OPDIV or designee.
The Director, OSDBU will exercise functional management authority over
small business specialists regarding the small business programs.
(2) The head of each OPDIV
shall appoint a qualified full-time small business specialist (SBS) in
the following activities: Administration for Children and Families (ACF),
Agency for Healthcare Research and Quality (AHRQ), Health Care Financing
Administration (HCFA), Substance Abuse and Mental Health Services Administration
(SAMHSA), Food and Drug Administration (FDA), Health Resources and Services
Administration (HRSA), Indian Health Service (IHS), National Institutes
of Health (NIH), Centers for Disease Control and Prevention (CDCP), and
Program Support Center (PSC). A SBS shall also be appointed for the Office
of the Secretary (OS). As deemed necessary, additional small business
specialists may be appointed in larger contracting activities. When the
volume of contracting does not warrant assignment of a full-time SBS,
an individual shall be appointed as the specialist on a part-time basis.
The responsibilities of this assignment shall take precedence over other
responsibilities.
Subpart 319.5--Set-Asides For Small Business
319.501 General.
(d) Subsequent to the
contracting officer's recommendation on Form HHS653, Small Business Set-Aside
Review Form, the SBS shall review each proposed acquisition and either
concur or non-concur with the contracting officer's recommendation. If
the contracting officer disapproves the SBS's set-aside recommendation,
the reasons must be documented on the Form HHS-653, and the form placed
in the contract file. The contracting officer will make the final determination
as to whether the proposed acquisition will be set-aside or not.
319.506 Withdrawing or modifying set-asides.
(d) Immediately upon notice
from the contracting officer, the SBS shall provide telephone notification
regarding all set-aside withdrawals to the OSDBU Director.
Subpart 319.7--Subcontracting with Small Business, Small Disadvantaged
Business and Women-Owned Small Business Concerns
319.705 Responsibilities of the contracting officer under the subcontracting
assistance program.
319.705-5 Awards involving subcontracting plans.
(a)(3) The SBA PCR shall
be allowed a period of one to five working days to review the contract
award package, depending upon the circumstances and complexity of the
individual acquisition.
PART 323--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE
Subpart 323.70--Safety and Health
Sec.
323.7000 Scope of subpart.
323.7001 Policy.
323.7002 Actions required.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 323.70--Safety and Health
323.7000 Scope of subpart.
This subpart prescribes
the use of a safety and health clause in contracts involving hazardous
materials or operations, and provides procedures for administering safety
and health provisions.
323.7001 Policy.
Various statutes and regulations
(e.g. Walsh-Healy Act; Service Contract Act) require adherence to minimum
safety and health standards by contractors engaged in potentially hazardous
work. The guidance contained in FAR subpart 23.3 shall be used for hazardous
materials as the primary reference. When the guidance is judged insufficient
or does not meet the safety and health situation in the instant acquisition,
this subpart shall be followed.
323.7002 Actions required.
(a) Contracting activities.
Contracting activities shall use the clause set forth in 352.223-70, or
a clause reading substantially the same, in prospective contracts and
subcontracts involving hazardous materials or operations for the following:
(1) Services or products;
(2) Research, development,
or test projects;
(3) Transportation of
hazardous materials; and
(4) Construction, including
construction of facilities on the contractor's premises.
(b) Safety officers. OPDIV
safety officers shall advise and assist initiators of acquisition requests
and contracting officers in:
(1) Determining whether
safety and health provisions should be included in a prospective contract;
(2) Evaluating a prospective
contractor's safety and health programs; and
(3) Conducting post-award
reviews and surveillance to the extent deemed necessary.
(c) Initiators. Initiators
of acquisition requests for items described in paragraph (a) of this section
shall:
(1) During the preparation
of a request for contract, and in the solicitation, ensure that hazardous
materials and operations to be used in the performance of the contract
are clearly identified; and
(2) During the period
of performance:
(i) Apprise the contracting
office of any noncompliance with safety and health provisions identified
in the contract; and
(ii) Cooperate with the
safety officer in conducting review and surveillance activities.
PART 324--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
Subpart 324.1--Protection of Individual Privacy
Sec.
324.100 Scope of subpart.
324.102 General.
324.103 Procedures.
Subpart 324.2--Freedom of Information Act
324.202 Policy.
Subpart 324.70--Confidentiality of Information
324.7001 General.
324.7002 Policy.
324.7003 Applicability.
324.7004 Required clause.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
[[Page 4246]]
Subpart 324.1--Protection of Individual Privacy
324.100 Scope of subpart.
This subpart implements
45 CFR Part 5b, Privacy Act Regulations, and FAR Subpart 24.1, Protection
of Individual Privacy, which implements the Privacy Act of 1974 (Public
Law 93-579, December 31, 1974; 5 U.S.C. 552a) and OMB Circular No. A-108,
July 9, 1975.
324.102 General.
(a) It is the Department's
policy to protect the privacy of individuals to the maximum possible extent
while permitting the exchange of records required to fulfill the Department's
administrative and program responsibilities and its responsibilities for
disclosing records to which the general public is entitled under the Freedom
of Information Act (5 U.S.C. 552). The Privacy Act of 1974 and the Department's
implementation under 45 CFR part 5b apply "when an agency provides
by a contract for the operation by or on behalf of the agency of a system
of records to accomplish any agency function* * *" The key factor
is whether a departmental function is involved. Therefore, the Privacy
Act requirements apply to a departmental contract when, under the contract,
the contractor must maintain or operate a system of records to accomplish
a departmental function.
(e) The program official,
and, as necessary, the official designated as the activity's Privacy Act
Coordinator and the Office of General Counsel, shall determine the applicability
of the Act to each proposed acquisition. The program official is required
to include a statement in the request for contract indicating whether
the Privacy Act is or is not applicable to the proposed acquisition.
(f) Whenever the contracting
officer is informed that the Privacy Act is not applicable, but the resultant
contract will involve the collection of individually identifiable personal
data by the contractor, the contracting officer shall include provisions
to protect the confidentiality of the records and the privacy of individuals
identified in the records (see subpart 324.70).
324.103 Procedures.
(a) All requests for contract
shall be reviewed by the contracting officer to determine whether the
Privacy Act requirements are applicable. If applicable, the contracting
officer shall include the solicitation notification and contract clause
required by FAR 24.104 in the solicitation, and the contract clause in
the resultant contract. In addition, the contracting officer shall ensure
that the solicitation notification, contract clause, and other pertinent
information specified in this subpart are included in any contract modification
which results in the Privacy Act requirements becoming applicable to a
contract.
(b)(1) The contracting
officer shall identify the system(s) of records on individuals in solicitations,
contracts, and contract modifications to which the Privacy Act and the
implementing regulations are applicable.
(2) The contracting officer
shall include a statement in the contract notifying the contractor that
the contractor and its employees are subject to criminal penalties for
violations of the Act (5 U.S.C. 552a(i)) to the same extent as employees
of the Department. The statement shall require that the contractor assure
that each contractor employee knows the prescribed rules of conduct, and
each contractor employee is aware that he/she can be subjected to criminal
penalties for violations of the Act. The contracting officer shall provide
the contractor with a copy of the rules of conduct and other requirements
set forth in 45 CFR part 5b.
(c) The contracting officer
shall include in the contract the disposition to be made of the system(s)
of records on individuals upon completion of performance of the contract.
For example, the contract may require the contractor to completely destroy
the records, to remove personal identifiers, to turn the records over
to the Department, or to keep the records but take certain measures to
keep the records confidential and protect the individuals' privacy.
(d) Whenever an acquisition
is determined to be subject to the Privacy Act requirements, a "system
notice," prepared by the program official and describing the Department's
intent to establish a new system of records on individuals, to make modifications
to an existing system, or to disclose information in regard to an existing
system, is required to be published in the Federal Register. A copy of
the "system notice" shall be attached to the request for contract
or purchase request. If a "system notice" is not attached, the
contracting officer shall inquire about its status and shall obtain a
copy from the program official for inclusion in the contract file. If
a "system notice" has not been published in the Federal Register,
the contracting officer may proceed with the acquisition but shall not
award the contract until the "system notice" is published, and
publication is verified by the contracting officer.
Subpart 324.2--Freedom of Information Act
324.202 Policy.
(a) The Department's regulation
implementing the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended,
is set forth in 45 CFR part 5.
(b) The contracting officer,
upon receiving a FOIA request, shall follow Department and operating division
procedures. As necessary, actions should be coordinated with the cognizant
Freedom of Information (FOI) Officer and the Business and Administrative
Law Division of the Office of General Counsel. The contracting officer
must remember that only the FOI Officer has the authority to release or
deny release of records. While the contracting officer should be familiar
with the entire FOIA regulation in 45 CFR part 5, particular attention
should be focused on Secs. 5.65 and 5.66; also of interest are Secs. 5.32,
5.33, and 5.35.
Subpart 324.70--Confidentiality of Information
324.7001 General.
In performance of certain
HHS contracts, it is necessary for the contractor to generate data, or
be furnished data by the Government, which is about individuals, organizations,
or Federal programs. This subpart and the accompanying contract clause
require contractors to prudently handle disclosure of certain types of
information not subject to the Privacy Act or the HHS human subject regulations
set forth in 45 CFR part 46. This subpart and contract clause address
the kinds of data to be generated by the contractor and/or data to be
furnished by the Government that are considered confidential and how it
should be treated.
324.7002 Policy.
It is the policy of HHS
to protect personal interests of individuals, corporate interests of non-governmental
organizations, and the capacity of the Government to provide public services
when information from or about individuals, organizations, or Federal
agencies is provided to or obtained by contractors in performance of HHS
contracts. This protection depends on the contractor's recognition and
proper handling of the information. As a result, the "Confidentiality
of Information" contract clause was developed.
324.7003 Applicability.
(a) The "Confidentiality
of Information" clause, set forth in 352.224-70, should be used in
[[Page 4247]]
solicitations and resultant contracts whenever the need exists to keep
information confidential. Examples of situations where the clause may
be appropriate include:
(1) Studies performed
by the contractor which generate information or involve Government-furnished
information that is personally identifiable, such as medical records,
vital statistics, surveys, and questionnaires;
(2) Contracts which involve
the use of salary structures, wage schedules, proprietary plans or processes,
or confidential financial information of organizations other than the
contractor's; and
(3) Studies or research
which may result in preliminary or invalidated findings which, upon disclosure
to the public, might create erroneous conclusions which, if acted upon,
could threaten public health or safety.
(b) With regard to protecting
individuals, this subpart and contract clause are not meant to regulate
or control the method of selecting subjects and performing studies or
experiments involving them. These matters are dealt with in the HHS regulation
entitled "Protection of Human Subjects," 45 CFR Part 46. If
a system of records under contract, or portions thereof, is determined
to be subject to the requirements of the Privacy Act, in accordance with
FAR 24.1 and 324.1 and Title 45 CFR part 5b, the procedures cited in those
references are applicable and the Privacy Act contract clause shall be
included in the contract. If the contract also involves confidential information,
as described in this section, which is not subject to the Privacy Act,
the contract shall include the "Confidentiality of Information"
clause in addition to the Privacy Act clause.
324.7004 Required clause.
The clause set forth in
352.224-70 shall be included in any RFP and resultant contract(s) where
it has been determined that confidentiality of information provisions
may apply. Any RFP announcing the intent to include this clause in any
resultant contract(s) shall indicate, as specifically as possible, the
types of data which would be covered and requirements for handling the
data.
PART 325--FOREIGN ACQUISITION
Subpart 325.1--Buy American Act--Supplies
Sec.
325.102 Policy.
325.108 Excepted articles, materials, and supplies.
Subpart 325.3--Balance of Payments Program
325.302 Policy.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 325.1--Buy American Act--Supplies
325.102 Policy.
(b) The head of the contracting
activity (not delegable) shall make the determinations required by FAR
25.102(a)(1) through (5) and 25.102(b)(2).
325.108 Excepted articles, materials, and supplies.
(b) Articles, materials,
and supplies not listed in FAR 25.108(d) may be excepted only after a
written determination has been made by the head of the contracting activity
(not delegable). These determinations are required only in instances where
it has been determined that only suppliers of foreign source end items
shall be solicited. However, approvals and determinations covering individual
acquisitions in the following categories may be made by the contracting
officer:
(1) Acquisition of spare
and replacement parts for foreign manufactured items, if the acquisition
must be restricted to the original manufacturer or its supplier; and
(2) Acquisition of foreign
drugs when it has been determined, in writing, by the responsible program
official, that only the requested foreign drug will fulfill the requirement.
Subpart 325.3--Balance of Payments Program
325.302 Policy.
All determinations addressed
in FAR 25.302 shall be made by the head of the contracting activity (not
delegable).
PART 328--BONDS AND INSURANCE
Subpart 328.3--Insurance
Sec.
328.301 Policy.
328.311 Solicitation provision and contract clause on liability insurance
under cost-reimbursement contracts.
328.311-2 Agency solicitation provisions and contract clauses.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 328.3--Insurance
328.301 Policy.
It is Department policy
to limit the Government's reimbursement of its contractors' liability
to third persons for claims not covered by insurance in cost-reimbursement
contracts to the Limitation of Funds or Limitation of Cost clause of the
contract. In addition, the amount of the Government's reimbursement will
be limited to final judgments or settlements approved in writing by the
Government.
328.311 Solicitation provision and contract clause on liability insurance
under cost-reimbursement contracts.
328.311-2 Agency solicitation provisions and contract clauses.
The contracting officer
shall insert the clause at 352.228-7, Insurance--Liability to Third Persons,
in all solicitations and resulting cost-reimbursement contracts, in lieu
of the clause at FAR 52.228-7 required by FAR 28.311-1. This is an authorized
deviation.
PART 330--COST ACCOUNTING STANDARDS
Subpart 330.2--CAS Program Requirements
Sec.
330.201 Contract requirements.
330.201-5 Waiver.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 330.2--CAS Program Requirements
330.201 Contract requirements.
330.201-5 Waiver.
(c) The requirements of
FAR 30.201-5 shall be exercised by the Director, Office of Acquisition
Management (DOAM). Requests for waivers shall be forwarded through normal
acquisition channels to the DOAM.
PART 332--CONTRACT FINANCING
Subpart 332.4--Advance Payments for Non-Commercial Items
Sec.
332.402 General.
332.403 Applicability.
332.407 Interest.
332.409 Contracting officer action.
332.409-1 Recommendation for approval.
Subpart 332.5--Progress Payments Based on Costs
332.501 General.
332.501-2 Unusual progress payments.
Subpart 332.7--Contract Funding
332.702 Policy.
332.703 Contract funding requirements.
332.703-1 General.
332.704 Limitations of cost or funds.
332.705 Contract clauses.
332.705-2 Clauses for limitation of costs or funds.
Subpart 332.9--Prompt Payment
332.902 Definitions.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
[[Page 4248]]
Subpart 332.4--Advance Payments for Non-Commercial Items
332.402 General.
(e) The determination
that the making of an advance payment is in the public interest (see FAR
32.402(c)(1)(iii)(A)) shall be made by the respective chief of the contracting
office (CCO)(not delegable).
332.403 Applicability.
All contracts for research
work with educational institutions located in the United States shall
provide for financing by use of advance payments, in reasonable amounts,
unless otherwise prohibited by law.
332.407 Interest.
(d) The HCA (not delegable)
is authorized to make the determinations in FAR 32.407(d) and as follows.
In addition to the interest-free advance payments for the types of contracts
listed in FAR 32.407(d), advance payments without interest may be approved
for nonprofit contracts which are without fee with educational institutions
and other nonprofit organizations, whether public or private, which are
for the performance of work involving health services, educational programs,
or social service programs, including, but not limited to, programs such
as:
(1) Community health representative
services for an Indian Tribe or Band;
(2) Narcotic addict rehabilitative
services;
(3) Comprehensive health
care service program for Model Neighborhood programs;
(4) Planning and development
of health maintenance organizations;
(5) Dissemination of information
derived from educational research;
(6) Surveys or demonstrations
in the field of education;
(7) Producing or distributing
educational media for handicapped persons including captioned films for
the hearing impaired;
(8) Operation of language
or area centers;
(9) Conduct of biomedical
research and support services;
(10) Research surveys
or demonstrations involving the training and placement of health manpower
and health professionals, and dissemination of related information; and
(11) Surveys or demonstrations
in the field of social service.
332.409 Contracting officer action.
332.409-1 Recommendation for approval.
The information in FAR
32.409-1 (or FAR 32.409-2) shall be transmitted to the HCA in the form
of a briefing memorandum.
Subpart 332.5--Progress Payments Based on Cost
332.501 General.
332.501-2 Unusual progress payments.
(a)(3) The approval of
an unusual progress payment shall be made by the head of the contracting
activity (HCA)(not delegable).
Subpart 332.7--Contract Funding
332.702 Policy.
An incrementally funded
contract is a contract in which the total work effort is to be performed
over multiple time periods and funds are allotted to cover discernible
phases or increments of performance.
(a) Incremental funding
may be applied to cost-reimbursement type contracts for the acquisition
of research and development and other types of nonpersonal, nonseverable
services. It shall not be applied to contracts for construction services,
architect-engineer services, or severable services.Incremental funding
allows nonseverable cost-
reimbursement contracts, awarded for more than one year, to be funded
from succeeding fiscal years.
(b) It is departmental
policy that contracts for projects of multiple year duration be fully
funded, whenever possible, to cover the entire project. However, incrementally
funded contracts may be used when:
(1) A project, which is
part of an approved program, is anticipated to be of multiple year duration,
but funds are not currently available to cover the entire project;
(2) The project represents
a valid need for the fiscal year in which the contract is awarded and
of the succeeding fiscal years of the project's duration, during which
additional funds may be obligated by increasing the allotment to the contract;
(3) The project is so
significant to the approved program that there is reasonable assurance
that it will command a high priority for proposed appropriations to cover
the entire multiple year duration; and
(4) The statement of work
is specific and is defined by separate phases or increments so that, at
the completion of each, progress can be effectively measured.
332.703 Contract funding requirements.
332.703-1 General.
(b) The following general
guidelines are applicable to incrementally funded contracts:
(1) The estimated total
cost of the project (all planned phases or increments) is to be taken
into consideration when determining the requirements which must be met
before entering into the contract; i.e., justification for noncompetitive
acquisition, approval or award, etc.
(2) The RFP and resultant
contract are to include a statement of work which describes the total
project covering the proposed multiple year period of performance and
indicating timetables consistent with planned phases or increments and
corresponding allotments of funds.
(3) Offerors will be expected
to respond to RFPs with technical and cost proposals for the entire project
indicating distinct break-outs of the planned phases or increments, and
the multiple year period of performance.
(4) Negotiations will
be conducted based upon the total project, including all planned phases
or increments, and the multiple year period of performance.
(5) Sufficient funds must
be obligated under the basic contract to cover no less than the first
year of performance, unless the contracting officer determines it is advantageous
to the Government to fund the contract for a lesser period. In that event,
the contracting officer shall ensure that the obligated funds are sufficient
to cover a complete phase or increment of performance representing a material
and measurable part of the total project, and the contract period shall
be reduced accordingly.
(6) Because of the magnitude
of the scope of work and multiple year period of performance under an
incrementally funded contract, there is a critical need for careful program
planning. Program planning must provide for appropriate surveillance of
the contractor's performance and adequate controls to ensure that projected
funding will not impinge on the program office's ability to support, within
anticipated appropriations, other equally important contract or grant
programs.
(7) An incrementally funded
contract must contain precise requirements for progress reports to enable
the project officer to effectively monitor the contract. The project officer
should be required to prepare periodic performance evaluation reports
to facilitate the program office's ultimate decision to allot additional
funds under the contract.
[[Page 4249]]
332.704 Limitation of cost or funds.
For detailed instruction
regarding administrative actions in connection with anticipated cost overruns,
see subpart 342.71
332.705 Contract clauses.
332.705-2 Clauses for limitation of costs or funds.
(c)(1) When using the
Limitation of Funds clause (FAR 52.232-22) in the solicitation and resultant
incrementally funded contract, the contracting officer shall insert the
following legend between the clause title and the clause text:
(This clause supersedes the Limitation of Cost clause found in the General
Provisions of this contract.)
(2) The contracting officer
shall also include a clause reading substantially as that shown in 352.232-74
in the Special Provisions of the resultant incrementally funded contract.
(3) The request for proposals
must inform prospective offerors of the Department's intention to enter
into an incrementally funded contract. Therefore, the contracting officer
shall include the provision at 352.232-75 in the request for proposals
whenever the use of incremental funding is contemplated.
Subpart 332.9--Prompt Payment
332.902 Definitions.
Fiscal office means the
office responsible for: determining whether interest penalties are due
a contractor and, if so, the amount; determining whether an invoice offers
a financially advantageous discount; maintaining records for and submission
of prompt payment reports to the Deputy Assistant Secretary, Finance (DASF),
ASMB, OS; and processing payments to the Treasury Department to allow
for payment to a contractor when due. The fiscal office may fulfill the
roles of the "designated billing office" and the "designated
payment office."
PART 333--PROTESTS, DISPUTES, AND APPEALS
Subpart 333.1--Protests
Sec.
333.102 General.
333.103 Protests to the agency.
333.104 Protests to GAO.
Subpart 333.2--Disputes and Appeals
333.203 Applicability.
333.209 Suspected fraudulent claims.
333.211 Contracting officer's decision.
333.212 Contracting officer's duties upon appeal.
333.212-70 Formats.
333.213 Obligation to continue performance.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 333.1--Protests
333.102 General.
(a) Contracting officers
shall consider all protests or objections regarding the award of a contract,
whether submitted before or after award, provided the protests are filed
in a timely manner and are submitted by interested parties. To be considered
timely, protests based on alleged improprieties in any type of solicitation
which are apparent before bid opening or the closing date for receipt
of proposals shall be filed prior to bid opening or the closing date for
receipt of proposals. In the case of negotiated acquisitions, alleged
improprieties which do not exist in initial solicitations, but which are
subsequently incorporated by amendment, must be protested not later than
the next closing date for receipt of proposals following the incorporation
of the amendment. In other cases, protests shall be filed not later than
ten (10) calendar days after the basis for protest is known or should
have been known, whichever is earlier. Provided a protest has been filed
initially with the contracting officer, any subsequent protest to the
Secretary or GAO filed within ten (10) calendar days of notification of
adverse action will be considered. Written confirmation of all oral protests
shall be requested from protestants and must be timely filed.
(g)(1) The Office of Acquisition
Management (OAM) has been designated as the headquarters office to serve
as the liaison for protests lodged with GAO. Within the OAM, the Departmental
Protest Control Officer (DPCO) has been designated as the individual to
be contacted by GAO.
(2) Each contracting activity
shall designate a protest control officer to serve as an advisor to the
contracting officer and to monitor protests from the time of initial notification
until the protest has been resolved. The protest control officer should
be a senior acquisition specialist in the headquarters acquisition staff
office. In addition, contracting activities should designate similar officials
within their principal components to the extent practicable and feasible.
A copy of each appointment and termination of appointment of protest control
officers shall be forwarded to the Director, OAM.
333.103 Protests to the agency.
(f)(1) The contracting
officer is authorized to make the determination, using the criteria in
FAR 33.104(b), to award a contract notwithstanding the protest after obtaining
the concurrence of the contracting activity's protest control officer
and the Office of General Counsel--Business and Administrative Law Division
(OGC-BAL). If the protest has been lodged with the Secretary, is addressed
to the Secretary, or requests referral to the Secretary, approval shall
also be obtained from the Director, OAM before making the award.
(2) The contracting officer
shall require written confirmation of any oral protest. To be considered
timely, the written confirmation must be filed in accordance with the
applicable provisions in 333.102(a). In the following cases, written protests
received by the contracting officer before award shall be forwarded, through
acquisition channels, to the DPCO for processing. Files concerning these
protests shall be submitted in duplicate, or as otherwise specified by
the DPCO and sent in the most expeditious manner, marked "IMMEDIATE
ACTION--PROTEST BEFORE AWARD", and contain the documentation referenced
in 333.104(a)(3).
(i) The protestant requests
referral to the Secretary of Health and Human Services;
(ii) The protest is known
to have been lodged with the Comptroller General or the Secretary, or
is addressed to either; or
(iii) The contracting
officer entertains some doubt as to the proper action regarding the protest
or believes it to be in the best interest of the Government that the protest
be considered by the Secretary or the Comptroller General. Otherwise,
protests addressed to the contracting officer may be answered by the contracting
officer, with the concurrence of the contracting activity's protest control
officer and OGC-BAL.
(3) Protests received
after award shall be treated as indicated in FAR 33.103(b)(3).
333.104 Protests to GAO.
(a) General procedures.
(3) Protests lodged with GAO, whether before or after award, shall be
processed by the DPCO. Protest files shall be prepared by the contracting
office and distributed as follows: two copies to the DPCO, one copy to
the contracting activity's protest control officer, and one copy to OGC-BAL.
Files shall include the following documentation:
(i) The contracting officer's
statement of facts and circumstances, including a discussion of the merits
of the protest, and conclusions and recommendations,
[[Page 4250]]
including documentary evidence on which they are based.
(ii) A copy of the IFB
or RFP.
(iii) A copy of the abstract
of bids or proposals.
(iv) A copy of the bid
or proposal of the successful offeror to whom award has been made or is
proposed to be made.
(v) A copy of the bid
or proposal of the protestant, if any.
(vi) The current status
of award. When award has been made, this shall include whether performance
has commenced, shipment or delivery has been made, or a stop work order
has been issued.
(vii) A copy of any mutual
agreement to suspend work on a no-cost basis, when appropriate (see FAR
33.104(c)(4)).
(viii) Copies of the notice
of protest given offerors and other parties when the notice is appropriate
(see FAR 33.104(a)(2)).
(ix) A copy of the technical
evaluation report, when applicable, and a copy of each evaluator's rating
for relevant proposals.
(x) A copy of the negotiation
memorandum, when applicable.
(xi) The name and telephone
number of the person in the contracting office who may be contacted for
information relevant to the protest.
(xii) A copy of the competitive
range memorandum. and
(xiii) Any document which
is referred to in the contracting officer's statement of facts. The files
shall be assembled in an orderly manner and shall include an index of
enclosures.
(4) The DPCO is responsible
for making the necessary distributions referenced in FAR 33.104 (a)(4).
(5) The contracting officer
shall furnish the protest file containing the documentation specified
in paragraph (a)(3) of this section, except the item in paragraph (a)(3)(i),
to the DPCO within fourteen (14) calendar days from receipt of the protest.
The contracting officer shall provide the documentation required by item
(a)(3)(i) of this section to the DPCO within twenty-one (21) calendar
days from receipt of the protest. Since the statute allows only a short
time period in which to respond to protests lodged with GAO, the contracting
officer shall handle each protest on a priority basis. The DPCO shall
prepare the report and submit it and the protest file to GAO in accordance
with FAR 33.104(a)(4)(i).
(6) Since the DPCO will
furnish the report to GAO, the protestor, and other interested parties,
comments on the report from the protestor and other interested parties
will be requested to be sent to the DPCO.
(7) The Office of Acquisition
Management (OAM) has been designated as the headquarters office, and the
DPCO as the individual, that GAO should contact concerning all protests
lodged with GAO.
(b) Protests before award.
(1) To make an award notwithstanding a protest, the contracting officer
shall prepare a finding using the criteria in FAR 33.104(b)(1), have it
executed by the head of the contracting activity (HCA)(not delegable),
and forward it, along with a written request for approval to make the
award, to the Deputy Assistant Secretary for Grants and Acquisition Management
(DASGAM).
(2) If the request to
make an award notwithstanding the protest is approved by the DASGAM, the
DPCO shall notify GAO. Whether the request is approved or not, the DPCO
shall telephonically notify the contracting activity's protest control
officer of the decision of the DASGAM, and the contracting activity's
protest control officer shall immediately notify the contracting officer.
The DPCO shall confirm the decision by memorandum to the contracting activity's
protest control officer.
(4) The contracting officer
shall prepare the protest file in accordance with paragraph (a)(3) of
this section, and forward the required number of copies to the DPCO (see
paragraph (a)(5) of this section).
(c) Protests after award.
(2) If the contracting officer believes performance should be allowed
to continue notwithstanding the protest, a finding shall be prepared by
the contracting officer using the criteria in FAR 33.104(c)(2), executed
by the HCA (not delegable), and forwarded, along with a written request
for approval, to the Director, OAM. The same procedures for notification
stated in paragraph (b)(2) of this section shall be followed.
(6) The contracting officer
shall prepare the protest file in accordance with paragraph (a)(3) of
this section, and forward the required number of copies to the DPCO (see
paragraph (a)(5) of this section).
(d) Findings and notice.
The contracting officer shall perform the actions required by FAR 33.104
(d); however, notification to GAO and other interested parties shall be
made by the DPCO.
(g) Notice to GAO. The
Deputy Assistant Secretary for Grants and Acquisition Management shall
be the official to comply with the requirements of FAR 33.104 (g).
(i) Express option. When
GAO invokes the express option, the contracting officer shall prepare
the complete protest file as described in paragraph (a)(3) of this section,
to include the item in paragraph (a)(3)(i), and deliver it (hand-carry,
if necessary) to the DPCO in time to meet the submittal date established
by GAO. The DPCO will notify the contracting officer of the submittal
date after GAO has finalized its requirements.
Subpart 333.2--Disputes and Appeals
333.203 Applicability.
(c) The Armed Services
Board of Contract Appeals (ASBCA) has been designated by the Secretary
as the authorized "Board" to hear and determine disputes for
the Department.
333.209 Suspected fraudulent claims.
The contracting officer
shall submit any instance of a contractor's suspected fraudulent claim
to the Office of the Inspector General for investigation.
333.211 Contracting officer's decision.
(a)(2) The contracting
officer shall refer a proposed final decision to the Office of General
Counsel, Business and Administrative Law Division (OGC-BAL), for advice
as to the legal sufficiency and format before sending the final decision
to the contractor. The contracting officer shall provide OGC-BAL with
the pertinent documents with the submission of each proposed final decision.
(a)(4)(v) When using the
paragraph in FAR 33.211 (a)(4)(v), the contracting officer shall insert
the words "Armed Services" before each mention of the term "Board
of Contract Appeals".
(h) At any time within
the period of appeal, the contracting officer may modify or withdraw his/her
final decision. If an appeal from the final decision has been taken to
the ASBCA, the contracting officer will forward his/her recommended action
to OGC-BAL with the supplement to the contract file which supports the
recommended correction or amendment.
333.212 Contracting officer's duties upon appeal.
(a) Appeals shall be governed
by the rules set forth in the "Rules of the Armed Services Board
of Contract Appeals", or by the rules established by the U.S. Court
of Federal Claims, as appropriate.
(b) OGC-BAL is designated
as the Government Trial Attorney to represent the Government in the defense
of appeals before the ASBCA. A decision by the ASBCA will be transmitted
by the Government Trial Attorney to the
[[Page 4251]]
appropriate contracting officer for compliance in accordance with the
ASBCA's decision.
(c) If an appeal is filed
with the ASBCA, the contracting officer shall assemble a file within 30
days of receipt of an appeal, or advice that an appeal has been filed,
that consists of all documents pertinent to the appeal, including:
(1) The decision and findings
of fact from which the appeal is taken;
(2) The contract, including
specifications and pertinent modifications, plans and drawings;
(3) All correspondence
between the parties pertinent to the appeal, including the letter or letters
of claim in response to which the decision was issued;
(4) Transcripts of any
testimony taken during the course of proceedings, and affidavits or statements
of any witness on the matter in dispute made prior to the filing of the
notice of appeal with the Board; and
(5) Any additional information
considered pertinent. The contracting officer shall furnish the appeal
file to the Government Trial Attorney for review and approval. After approval,
the contracting officer shall prepare four copies of the file, one for
the ASBCA, one for the appellant, one for the Government Trial Attorney,
and one for the contracting office.
(d) At all times after
the filing of an appeal, the contracting officer shall render whatever
assistance is requested by the Government Trial Attorney. When an appeal
is set for hearing, the concerned contracting officer, acting under the
guidance of the Government Trial Attorney, shall be responsible for arranging
for the presence of Government witnesses and specified physical and documentary
evidence at both the pre-hearing conference and hearing.
(e) If a contractor which
has filed an appeal with the ASBCA elects to accept fully the decision
from which the appeal was taken, or any modification to it, and gives
written notification of acceptance to the Government Trial Attorney or
the concerned contracting officer, the Government Trial Attorney will
notify the ASBCA of the disposition of the dispute in accordance with
Rule 27 of the ASBCA.
(f) If the contractor
has elected to appeal to the U.S. Court of Federal Claims, the U.S. Department
of Justice will represent the Department. However, the contracting officer
shall still coordinate all actions through OGC-BAL.
333.212-70 Formats.
(a) The following format
is suggested for use in transmitting appeal files to the ASBCA:
Your reference:--------------------------------------------------------
(Docket No.)
(Name)
Recorder, Armed Services Board of Contract Appeals
Skyline Six
5109 Leesburg Pike
Falls Church, Virginia 22041
Dear (Name):
Transmitted herewith are
documents relative to the appeal under Contract No. ______ with the ____________
(Name of contractor)
in accordance with the procedures under Rule 4. The Government Trial Attorney
for this case is
----------------------------------------------------------------------
----------------------------------------------------------------------
(Insert Division of Business and Administrative Law, Office of General
Counsel, Department of Health and Human Services, 330 Independence Avenue,
SW., Washington, DC 20201).
The request for payment of charges resulting from the processing of this
appeal should be addressed to:
----------------------------------------------------------------------
(Insert name and address of cognizant finance office.)
----------------------------------------------------------------------
Sincerely yours,
Contracting Officer
Enclosures
(b) The following format
is suggested for use in notifying the appellant that the appeal file was
submitted to the ASBCA:
(Contractor Address)
----------------------------------------------------------------------
----------------------------------------------------------------------
Dear ______:
An appeal file has been
compiled relative to the appeal under Contract No. ______, and has been
submitted to the Armed Services Board of Contract Appeals (ASBCA). The
enclosed duplicate of the appeal file is identical to that submitted to
the Board, except that contract documents which you already have been
excluded. You may furnish or suggest any additional information deemed
pertinent to the appeal to the Armed Services Board of Contract Appeals
according to their rules.
The ASBCA will provide
you with further information concerning this appeal.
Sincerely yours,
Contracting Officer
Enclosure
333.213 Obligation to continue performance.
(a) The Disputes clause
at FAR 52.233-1 shall be used without the use of Alternate I. However,
if the contracting officer determines that the Government's interest would
be better served by use of paragraph (i) in Alternate I, he/she must request
approval for its use from the chief of the contracting office.
PART 334--MAJOR SYSTEM ACQUISITION
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
334.003 Responsibilities.
The Department's implementation
of OMB Circular No. A-109 may be found in Chapter 1-150 of the General
Administration Manual.
PART 335--RESEARCH AND DEVELOPMENT CONTRACTING
Sec.
335.070 Cost-sharing.
335.070-1 Policy.
335.070-2 Amount of cost-sharing.
335.070-3 Method of cost-sharing.
335.070-4 Contract award.
335.071 Special determinations and findings affecting research and development
contracting.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
335.070 Cost-sharing.
335.070-1 Policy.
(a) The use of cost-sharing
type contracts should be encouraged to contribute to the cost of performing
research where there is a probability that the contractor will receive
present or future benefits from participation, such as, increased technical
know-how, training to employees, acquisition of equipment, use of background
knowledge in future contracts, etc. Cost-sharing is intended to serve
the mutual interests of the Government and the performing organization
by helping to assure efficient utilization of the resources available
for the conduct of research projects and by promoting sound planning and
prudent fiscal policies by the performing organization. Encouragement
should be given to organizations to contribute to the cost of performing
research under contracts unless the contracting officer determines that
a request for cost-sharing would not be appropriate because of the following
circumstances:
(1) The particular research
objective or scope of effort for the project is specified by the Government
rather than proposed by the performing organization. This would usually
include any formal Government request for proposals for a specific project.
(2) The research effort
has only minor relevance to the non-Federal activities of the performing
organization, and the organization is proposing to undertake the research
primarily as a service to the Government.
[[Page 4252]]
(3) The organization has
little or no non-Federal sources or funds from which to make a cost contribution.
Cost-sharing should generally not be requested if cost-sharing would require
the Government to provide funds through some other means (such as fees)
to enable the organization to cost-share. It should be recognized that
those organizations which are predominantly engaged in research and development
and have little or no production or other service activities may not be
in a favorable position to make a cost contribution.
(b) The responsibility
for negotiating cost-sharing is that of the contracting office. Each research
contract file should show whether the contracting officer considered cost-sharing
appropriate for that particular contract and in what amount. If cost-sharing
was not considered appropriate, the file must indicate the factual basis
for that decision, e.g., "Because the contractor will derive no benefits
from this award that can be applied to its commercial activities, cost-
sharing is not considered appropriate." The contracting officer may
wish to coordinate with the project officer before documenting this decision.
(c) If the contracting
officer considers cost-sharing to be appropriate for a research contract
and the contractor refuses to accept this type of contract, the award
may be made without cost-
sharing, if the contracting officer concludes that payment of the full
cost of the research effort is necessary in order to obtain the services
of that particular contractor.
335.070-2 Amount of cost-sharing.
When cost-sharing is determined
to be appropriate, the following guidelines shall be utilized in determining
the amount of cost participation by the contractor.
(a) The amount of cost
participation should depend to a large extent on whether the research
effort or results are likely to enhance the performing organization's
capability, expertise, or competitive position, and the value of this
enhancement to the performing organization. It should be recognized that
those organizations which are predominantly engaged in research and development
have little or no production or other service activities and may not be
in a favorable position to derive a monetary benefit from their research
under Federal agreements. Therefore, contractor cost participation could
reasonably range from as little as 1 percent or less of the total project
cost, to more than 50 percent of the total project cost. Ultimately, the
contracting officer should bear in mind that cost-sharing is a negotiable
item. As such, the amount of cost-sharing should be proportional to the
anticipated value of the contractor's gain.
(b) If the performing
organization will not acquire title or the right to use inventions, patents,
or technical information resulting from the research project, it would
generally be appropriate to obtain less cost-sharing than in cases in
which the performer acquires these rights.
(c) A fee or profit will
usually not be paid to the performing organization if the organization
is to contribute to the cost of the research effort, but the amount of
cost-sharing may be reduced to reflect the fact that the organization
is foregoing its normal fee or profit in the research. However, if the
research is expected to be of only minor value to the performing organization
and if cost-sharing is not required by statute, it may be appropriate
for the performer to make a contribution in the form of a reduced fee
or profit rather than sharing costs of the project.
(d) The organization's
participation may be considered over the total term of the project so
that a relatively high contribution in one year may be offset by a relatively
low contribution in another.
(e) A relatively low degree
of cost-sharing may be appropriate if, in the view of the operating divisions
or their subordinate elements, an area of research requires special stimulus
in the national interest.
335.070-3 Method of cost-sharing.
Cost-sharing on individual
contracts may be accomplished either by a contribution of part or all
of one or more elements of allowable cost of the work being performed,
or by a fixed amount or stated percentage of the total allowable costs
of the project. Costs so contributed may not be charged to the Government
under any other grant or contract (including allocations to other grants
or contracts as part of any independent research and development program).
335.070-4 Contract award.
In consonance with the
Department's objectives of competition and support of the small business
program, award of contracts should not be made solely on the basis of
ability or willingness to cost-share. Awards should be made primarily
on the contractor's competence and only after adequate competition has
been obtained among large and small business organizations whenever possible.
The offeror's willingness to share costs should not be considered in the
technical evaluation process but as a business consideration, which is
secondary to selecting the best qualified source.
335.071 Special determinations and findings affecting research and development
contracting.
OPDIV heads for health
agencies shall sign individual and class determinations and findings for:
(a) Acquisition or construction
of equipment or facilities on property not owned by the United States
pursuant to 42 U.S.C. 241(a)(7); and
(b) Use of an indemnification
provision in a research contract pursuant to 42 U.S.C. 241(a)(7).
PART 342--CONTRACT ADMINISTRATION
Subpart 342.7--Indirect Cost Rates
342.705 Final indirect cost rates.
Subpart 342.70--Contract Monitoring
Sec.
342.7001 Purpose.
342.7002 Contract monitoring responsibilities.
342.7003 Withholding of contract payments.
342.7003-1 Policy.
342.7003-2 Procedures.
342.7003-3 Withholding payments.
Subpart 342.71--Administrative Actions for Cost Overruns
342.7001 Scope of subpart.
342.7101 Contract administration.
342.7101-1 General.
342.7101-2 Procedures.
342.7102 Contract modifications.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 342.7--Indirect Cost Rates
342.705 Final indirect cost rates.
The Director, Division
of Cost Allocation of the Program Support Center within the servicing
HHS regional office has been delegated the authority to establish indirect
cost rates, research patient care rates, and, as necessary, fringe benefit,
computer, and other special costing rates for use in contracts and grants
awarded to State and local governments, colleges and universities, hospitals,
and other nonprofit organizations.
Subpart 342.70--Contract Monitoring
342.7001 Purpose.
Contract monitoring is
an essential element of contract administration and the acquisition process.
This subpart describes the Department's operating concepts regarding contract
monitoring, performed jointly by the project officer and the contracting
officer, to ensure
[[Page 4253]]
that the required monitoring is performed, timely remedial action is taken
when necessary, and a determination is made that contract objectives have
been met.
342.7002 Contract monitoring responsibilities.
(a) Upon execution of
the contract, the mutual obligations of the Government and the contractor
are established by, and limited to, the written stipulations in the contract.
Unless authorized by the contracting officer, HHS personnel shall not
direct or request the contractor to assume any obligation or take any
actions not specifically required by the contract. Only the contracting
officer may impose a requirement which will result in a change to the
contract. All contract changes must be directed in writing or confirmed
in writing by the contracting officer.
(b) The contracting officer
is responsible for assuring compliance with all terms of the contract,
especially the statutory, legal, business, and regulatory provisions.
Whether or not a postaward conference is held, the contracting officer
shall inform the contractor by letter (if not already stipulated by contract
provisions) of the authorities and responsibilities of the Government
personnel with whom the contractor will be dealing throughout the life
of the contract.
(c) The contracting officer
must depend on program, technical, and other personnel for assistance
and advice in monitoring the contractor's performance, and in other areas
of postaward administration. The contracting officer must assure that
responsibilities assigned to these personnel are understood and carried
out. The individual roles and corresponding responsibilities typically
involve, but are not limited to, the following:
(1) The role of program
and technical personnel in monitoring the contract to assist or advise
the contracting officer (or act as his/her representative when so designated
by the contracting officer) in activities such as:
(i) Providing technical
monitoring during contract performance, and issuing letters to the contractor
and contracting officer relating to delivery, acceptance, or rejection
in accordance with the terms of the contract;
(ii) Assessing contractor
performance, including inspection and testing of products and evaluation
of reports and data;
(iii) Recommending necessary
changes to the schedule of work and period of performance in order to
accomplish the objectives of the contract. This shall be accomplished
by a written request to the contracting officer, together with an appropriate
justification and funds availability citation;
(iv) Reviewing invoices/vouchers
and recommending approval/
disapproval action by the contracting officer, to include comments regarding
anything unusual discovered in the review;
(v) Reviewing and recommending
approval or disapproval of subcontractors, overtime, travel, and key personnel
changes; and
(vi) Participating, as
necessary, in various phases of the contract closeout process.
(2) The role of the project
officer in performing required aspects of the contract monitoring process.
In addition to those applicable activities set forth in paragraph (c)(1)
of this section, the project officer shall:
(i) Submit periodic reports
to the contracting officer that concisely explain the status of the contract,
and include recommended actions for any problems reported. Provide the
contracting officer with written notification of evaluation and approval/disapproval
of contract deliverables and of completion of tasks or phases. The contracting
officer will, in turn, provide the contractor with written notification
of approval or disapproval unless the responsibility has been delegated
by the contracting officer, in which case the person responsible for such
action will notify the contractor and provide a copy to the contracting
officer for inclusion in the contract file;
(ii) Monitor the technical
aspects of the contractor's business and technical progress, identify
existing and potential problems that threaten performance, and immediately
inform the contracting officer of deviations from contract objectives,
or from any technical or delivery requirements, so that remedial measures
may be instituted accordingly;
(iii) Provide immediate
notification to the head of the program office responsible for the program
whenever it is determined that program objectives are not being met, together
with specific recommendations of action to be taken. A copy of the project
officer's report and recommendation shall be transmitted to the contracting
officer for appropriate action;
(iv) Submit, within 120
days after contract completion, a final assessment report to the contracting
officer. The report should include analysis of the contractor's performance,
including the contract and program objectives achieved and missed. A copy
of the final assessment report shall be forwarded to the head of the program
office responsible for the program for management review and follow-up,
as necessary; and
(v) Accompany and/or provide,
when requested, technical support to the HHS auditor in the conduct of
floor checks.
(3) The role of the contract
administrator, auditor, cost analyst, and property administrator in assisting
or advising the contracting officer in postaward administration activities
such as:
(i) Evaluation of contractor
systems and procedures, to include accounting policies and procedures,
purchasing policies and practices, property accounting and control, wage
and salary plans and rate structures, personnel policies and practices,
etc.;
(ii) Processing of disputes
under the Disputes clause and any resultant appeals;
(iii) Modification or
termination of the contract; and
(iv) Determination of
the allowability of cost charges to incentive or cost-reimbursement type
contracts and progress payments under fixed-
price contracts. This is especially important when award is made to new
organizations or those with financial weaknesses.
(d) The contracting officer
is responsible for assuring that contractor performance and contract monitoring
are carried out in conformance with contract provisions. If performance
is not satisfactory or if problems are anticipated, it is essential that
the contracting officer take immediate action to protect the Government's
rights under the contract. The contracting officer shall notify his/her
immediate supervisor of problems that cannot be resolved within contract
limitations and whenever contract or program objectives are not met. The
notification shall include a statement of action being take by the contracting
officer.
342.7003 Withholding of contract payments.
342.7003-1 Policy.
(a) All solicitations
and resultant contracts shall contain the withholding of contract payments
clause at 352.232-9, and an excusable delays clause, or a clause which
incorporates the definition of excusable delays. The excusable delays
clause at 352.249-14 shall be used when the solicitation and resultant
contract (other than purchase orders) does not contain a default or other
excusable delays clause.
(b) The transmittal letter
used to convey the contract to each contractor shall contain a notice
which highlights
[[Page 4254]]
the contractor's agreement with the withholding of contract payments clause.
(c) No contract payment
shall be made when any report required to be submitted by the contractor
is overdue, or the contractor fails to perform or deliver work or services
as required by the contract.
(d) The contracting officer
shall issue a ten-day cure notice or initiate appropriate termination
action for any failure in the contractor's performance as stated in paragraph
(c) of this section.
342.7003-2 Procedures.
(a) The contracting officer
is responsible for initiating immediate action to protect the Government's
rights whenever the contractor fails to comply with either the delivery
or reporting provisions of the contract. Compliance with the reporting
provisions includes those reports to be submitted directly to the payment
office. If such a report is not submitted on time, the contracting officer
is to be notified promptly by the payment officer.
(b) When the contract
contains a termination for default clause, the contractor's failure to
either submit any required report when due or perform or deliver services
or work when required by the contract is to be considered a default in
performance. In either circumstance, the contracting officer is to immediately
issue a formal ten-day cure notice pursuant to the default clause. The
cure notice is to follow the format prescribed in FAR 49.607 and is to
include a statement to the effect that contract payments will be withheld
if the default is not cured or is not determined to be excusable.
(1) If the default is
cured or is determined to be excusable, the contracting officer is not
to initiate the withholding action.
(2) If the default is
not determined to be excusable or a response is not received within the
allotted time, the contracting officer is to initiate withholding action
on all contract payments and is to determine whether termination for default
or other action would be in the best interest of the Government.
(c) When the contract
does not contain a termination for default clause, the contractor's failure
to either submit any required report when due or perform or deliver services
or work when required by the contract is to be considered a failure to
perform. In either circumstance, the contracting officer is to immediately
issue a written notice to the contractor specifying the failure and providing
a period of ten days, or longer period as determined necessary by the
contracting officer, in which the contractor is to cure the failure or
establish an excusable delay. The contracting officer is to include a
statement in the written notice to the effect that contract payments will
be withheld if the failure is not cured or is not determined to be excusable.
(1) If the failure is
cured or is determined to be excusable, the contracting officer is not
to initiate the withholding action.
(2) If the failure is
not determined to be excusable or a response is not received within the
allotted time, the contracting officer is to initiate withholding action
on all contract payments and is to determine whether termination for convenience
or other action would be in the best interest of the Government.
(d) The contracting officer
should consult FAR subpart 49.4 for further guidance before taking any
of the actions described in this section.
342.7003-3 Withholding payments.
(a) When making the determination
that contract payments should be withheld in accordance with the Withholding
of Contract Payments clause, the contracting officer is to immediately
notify the servicing finance office in writing of the determination to
suspend payments. The notice of suspension is to contain all elements
of information required by the payment office to properly identify the
contract and the applicable accounts involved.
(b) The contracting officer
is to immediately notify the contractor in writing that payments have
been suspended until the default or failure is cured.
(c) When the contractor
cures the default or failure, the contracting officer is to immediately
notify, in writing, all recipients of the notice of suspension that the
suspension is to be lifted and contract payments are to be resumed.
(d) When exercising actions
regarding the withholding of payment procedures, the contracting officer
must be careful not to waive any of the Government's rights when corresponding
with the contractor or when taking any other actions.
Subpart 342.71--Administrative Actions for Cost Overruns
342.7100 Scope of subpart.
This subpart sets forth
the procedures to be followed when a cost overrun is anticipated; i.e.,
the allowable actual cost of performing a cost-reimbursement type contract
is expected to exceed the total estimated cost specified in the contract.
342.7101 Contract administration.
342.7101-1 General.
Upon receipt of information
that a contractor's accumulated cost and projected expenditures will exceed
the limit of funds obligated by the contract, the contracting officer
shall coordinate immediately with the appropriate program office to determine
whether the contract should be modified or terminated. If the contracting
officer receives information from a source other than the contractor that
a cost overrun is anticipated, the contracting officer shall verify the
information with the contractor, and remind the contractor of the notification
requirements of the Limitation of Cost clause.
342.7101-2 Procedures.
(a) Upon notification
that a cost overrun is anticipated, the contracting officer shall inform
the contractor to submit a request for additional funds which is to include:
(1) Name and address of
contractor.
(2) Contract number and
expiration date.
(3) Contract item(s) and
amount(s) creating overrun.
(4) The elements of cost
which changed from the original estimate (i.e., labor, material, travel,
overhead, etc.) to be furnished in the following format:
(i) Original estimate,
(ii) Costs incurred to
date,
(iii) Estimated cost to
completion,
(iv) Revised estimate,
and
(v) Amount of adjustment.
(5) The factors responsible
for the increase, i.e., error in estimate, changed conditions, etc.
(6) The latest date by
which funds must be available for commitment to avoid contract slippage,
work stoppage, or other program impairment.
(b) When the contractor
submits a notice of an impending overrun, the contracting officer shall:
(1) Immediately advise
the appropriate program office and furnish a copy of the notice and any
other data received;
(2) Request audit or cost
advisory services, and technical support, as necessary, for evaluation
of information and data received; and
(3) Maintain continuous
follow-up with the program office to obtain a timely decision as to whether
the work under the contract should be continued and additional funds provided,
or the contract terminated. The decision of the program office must be
supported by an appropriate written statement and funding authority, or
a formal request for termination, when applicable. After a programming
and funding decision is
[[Page 4255]]
received from the program office, the contracting officer shall promptly
notify the contractor in writing that:
(i) A specified amount
of additional funds has been allotted to the contract by a contractual
instrument; or
(ii) Work will be discontinued
when the funds allotted to the contract have been exhausted, and that
any work performed after that date is at the contractor's risk; or
(iii) The Government is
considering whether additional funds should be allotted to the contract
and will notify the contractor as soon as possible, but that any work
performed after the funds then allocated to the contract have been exhausted
is at the contractor's risk. Timely, formal notification of the Government's
intention is essential in order to preclude loss of contractual rights
in the event of dispute, termination, or litigation.
(c) If program requirements
permit, contracting officers should refrain from issuing any contractual
documents which will require new work or an extension of time, pending
resolution of an overrun or additional fund request.
342.7102 Contract modifications.
(a) Modifications to contracts
containing the Limitation of Cost clause shall include either:
(1) A provision increasing
the estimated or ceiling amount referred to in the Limitation of Cost
clause of the contract and stating that the clause will thereafter apply
in respect to the increased amount; or
(2) A provision stating
that the estimated or ceiling amount referred to in the contract is not
changed by the modification and that the Limitation of Cost clause will
continue to apply with respect to the amount in effect prior to the modification.
(b) A fixed-fee provided
in a contract shall not be changed when funding a cost overrun. Changes
in fixed-fee will be made only to reflect changes in the scope of work
which justify an increase or decrease in fee.
PART 352--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 352.2--Texts of Provisions and Clauses
Sec.
352.202-1 Definitions.
352.215-1 Instructions to offerors--Competitive acquisition.
352.215-70 Late proposals and revisions.
352.216-72 Additional cost principles.
352.223-70 Safety and health.
352.224-70 Confidentiality of information.
352.228-7 Insurance--Liability to third persons.
352.232-9 Withholding of contract payments.
352.232-74 Estimated cost and fixed fee--Incrementally funded contract.
352.232-75 Incremental funding.
352.233-70 Litigation and claims.
352.242-71 Final decisions on audit findings.
352.249-14 Excusable delays.
352.270-1 Accessibility of meetings, conferences, and seminars to persons
with disabilities.
352.270-2 Indian preference.
352.270-3 Indian preference program.
352.270-4 Pricing of adjustments.
352.270-5 Key personnel.
352.270-6 Publications and publicity.
352.270-7 Paperwork Reduction Act.
352.270-8 Protection of human subjects.
352.270-9 Care of laboratory animals.
Authority: 5 U.S.C. 301,
40 U.S.C. 486(c).
Subpart 352.2--Texts of Provisions and Clauses
352.202-1 Definitions.
As prescribed in 302.201,
the FAR Definitions clause at 52.202-1 is to be used as modified:
Definitions (Jan. 2001)
(a) Substitute the following
as paragraph (a):
"(a) The term "Secretary"
or "Head of the Agency" (also called "Agency Head")
means the Secretary, Under Secretary, or any Assistant Secretary, Administrator
or Commissioner of the Department of Health and Human Services; and the
term "his/her duly authorized representative" means any person,
persons, or board authorized to act for the Secretary."
(b) Add the following
paragraph (h) or its alternate, as appropriate:
"(h) The term "Project
Officer" means the person representing the Government for the purpose
of technical monitoring of contract performance. The Project Officer is
not authorized to issue any instructions or directions which effect any
increases or decreases in the scope of work or which would result in the
increase or decrease of the price of this contract or a change in the
delivery dates or performance period of this contract."
or
Alternate:
"(h) The term "Project
Officer" means the person representing the Government for the purpose
of technical monitoring of contract performance. The Project Officer is
not authorized to issue any instructions or directions which effect any
increases or decreases in the scope of work or which would result in the
increase or decrease of the cost of this contract or a change in performance
period of this contract. In addition, the Project Officer is not authorized
to receive or act upon the Contractor's notification of a revised cost
estimate pursuant to the Limitation of Cost or Limitation of Funds clause
of this contract."
352.215-1 Instructions to offerors--Competitive acquisition.
Insert the following paragraph
(e) in place of paragraph (e) of the provision at FAR 52.215-1:
(e) Restriction on disclosure
and use of data. (1) The proposal submitted in response to this request
may contain data (trade secrets; business data, e.g., commercial information,
financial information, and cost and pricing data; and technical data)
which the offeror, including its prospective subcontractor(s), does not
want used or disclosed for any purpose other than for evaluation of the
proposal. The use and disclosure of any data may be so restricted; provided,
that the Government determines that the data is not required to be disclosed
under the Freedom of Information Act, 5 U.S.C. 552, as amended, and the
offeror marks the cover sheet of the proposal with the following legend,
specifying the particular portions of the proposal which are to be restricted
in accordance with the conditions of the legend. The Government's determination
to withhold or disclose a record will be based upon the particular circumstances
involving the record in question and whether the record may be exempted
from disclosure under the Freedom of Information Act. The legend reads:
Unless disclosure is required
by the Freedom of Information Act, 5 U.S.C. 552, as amended, (the Act)
as determined by Freedom of Information (FOI) officials of the Department
of Health and Human Services, data contained in the portions of this proposal
which have been specifically identified by page number, paragraph, etc.
by the offeror as containing restricted information shall not be used
or disclosed except for evaluation purposes.
The offeror acknowledges
that the Department may not be able to withhold a record (data, document,
etc.) nor deny access to a record requested pursuant to the Act and that
the Department's FOI officials must make that determination. The offeror
hereby agrees that the Government is not liable for disclosure if the
Department has determined that disclosure is required by the Act.
If a contract is awarded
to the offeror as a result of, or in connection with, the submission of
this proposal, the Government shall have right to use or disclose the
data to the extent provided in the contract. Proposals not resulting in
a contract remain subject to the Act.
The offeror also agrees
that the Government is not liable for disclosure or use of unmarked data
and may use or disclose the data for any purpose, including the release
of the information pursuant to requests under the Act. The data subject
to this restriction are contained in pages (insert page numbers, paragraph
designations, etc. or other identification).
(2) In addition, the offeror
should mark each page of data it wishes to restrict with the following
statement:
"Use or disclosure
of data contained on this page is subject to the restriction on the cover
sheet of this proposal or quotation."
(3) Offerors are cautioned
that proposals submitted with restrictive legends or
[[Page 4256]]
statements differing in substance from the above legend may not be considered
for award. The Government reserves the right to reject any proposal submitted
with a nonconforming legend.
352.215-70 Late proposals and revisions.
As prescribed in 315.208,
the following provision may be included in the solicitation:
Late Proposals and Revisions (Nov. 1986)
Notwithstanding the procedures
contained in FAR 52.215-1(c)(3) of the provision of this solicitation
entitled Instructions to Offerors-Competitive Acquisition, a proposal
received after the date specified for receipt may be considered if it
offers significant cost or technical advantages to the Government; and
it was received before proposals were distributed for evaluation, or within
five calendar days after the exact time specified for receipt, whichever
is earlier.
(End of provision)
352.216-72 Additional cost principles.
As prescribed in 316.307(j),
insert the following clause in all solicitations and resultant cost-reimbursement
contracts:
Additional Cost Principles (Oct. 1990)
(a) Bid and proposal costs.
(1) Bid and proposal costs are the immediate costs of preparing bids,
proposals, and applications for potential Federal and non-Federal contracts,
grants, and agreements, including the development of scientific, cost,
and other data needed to support the bids, proposals, and applications.
(2) Bid and proposal costs
of the current accounting period are allowable as indirect costs.
(3) Bid and proposal costs
of past accounting periods are unallowable in the current period. However,
if the organization's established practice is to treat these costs by
some other method, they may be accepted if they are found to be reasonable
and equitable.
(4) Bid and proposal costs
do not include independent research and development costs covered by the
following paragraph, or preaward costs covered by paragraph 38 of Attachment
B to OMB Circular A-122.
(b) Independent research
and development costs. (1) Independent research and development is research
and development conducted by an organization which is not sponsored by
Federal or non-Federal contracts, grants, or other agreements.
(2) Independent research
and development shall be allocated its proportionate share of indirect
costs on the same basis as the allocation of indirect costs to sponsored
research and development.
(3) The cost of independent
research and development, including its proportionate share of indirect
costs, are unallowable.
(End of clause)
352.223-70 Safety and health.
The following clause,
or one reading substantially the same, shall be used as prescribed in
323.7002:
Safety and Health (Jan. 2001)
(a) To help ensure the
protection of the life and health of all persons, and to help prevent
damage to property, the Contractor shall comply with all Federal, State
and local laws and regulations applicable to the work being performed
under this contract. These laws are implemented and/or enforced by the
Environmental Protection Agency, Occupational Safety and Health Administration
and other agencies at the Federal, State and local levels (Federal, State
and local regulatory/enforcement agencies).
(b) Further, the Contractor
shall take or cause to be taken additional safety measures as the Contracting
Officer, in conjunction with the project or other appropriate officers,
determines to be reasonably necessary. If compliance with these additional
safety measures results in an increase or decrease in the cost or time
required for performance of any part of work under this contract, an equitable
adjustment will be made in accordance with the applicable "Changes"
clause set forth in this contract.
(c) The Contractor shall
maintain an accurate record of, and promptly report to the Contracting
Officer, all accidents or incidents resulting in the exposure of persons
to toxic substances, hazardous materials or hazardous operations; the
injury or death of any person; and/or damage to property incidental to
work performed under the contract and all violations for which the Contractor
has been cited by any Federal, State or local regulatory/enforcement agency.
The report shall include a copy of the notice of violation and the findings
of any inquiry or inspection, and an analysis addressing the impact these
violations may have on the work remaining to be performed. The report
shall also state the required action(s), if any, to be taken to correct
any violation(s) noted by the Federal, State or local regulatory/enforcement
agency and the time frame allowed by the agency to accomplish the necessary
corrective action.
(d) If the Contractor
fails or refuses to comply with the Federal, State or local regulatory/enforcement
agency's directive(s) regarding any violation(s) and prescribed corrective
action(s), the Contracting Officer may issue an order stopping all or
part of the work until satisfactory corrective action (as approved by
the Federal, State or local regulatory/enforcement agencies) has been
taken and documented to the Contracting Officer. No part of the time lost
due to any stop work order shall be subject to a claim for extension of
time or costs or damages by the Contractor.
(e) The Contractor shall
insert the substance of this clause in each subcontract involving toxic
substances, hazardous materials, or hazardous operations. Compliance with
the provisions of this clause by subcontractors will be the responsibility
of the Contractor.
(End of Clause)
352.224-70 Confidentiality of information.
The following clause is
covered by the policy set forth in subpart 324.70 and is to be used in
accordance with the instructions set forth in 324.7004.
Confidentiality of Information (Apr. 1984)
(a) Confidential information,
as used in this clause, means information or data of a personal nature
about an individual, or proprietary information or data submitted by or
pertaining to an institution or organization.
(b) In addition to the
types of confidential information described in paragraph (a) of this clause,
information which might require special consideration with regard to the
timing of its disclosure may derive from studies or research, during which
public disclosure of preliminary unvalidated findings could create erroneous
conclusions which might threaten public health or safety if acted upon.
(c) The Contracting Officer
and the Contractor may, by mutual consent, identify elsewhere in this
contract specific information and/or categories of information which the
Government will furnish to the Contractor or that the Contractor is expected
to generate which is confidential. Similarly, the Contracting Officer
and the Contractor may, by mutual consent, identify such confidential
information from time to time during the performance of the contract.
Failure to agree will be settled pursuant to the "Disputes"
clause.
(d) If it is established
elsewhere in this contract that information to be utilized under this
contract, or a portion thereof, is subject to the Privacy Act, the Contractor
will follow the rules and procedures of disclosure set forth in the Privacy
Act of 1974, 5 U.S.C. 552a, and implementing regulations and policies,
with respect to systems of records determined to be subject to the Privacy
Act.
(e) Confidential information,
as defined in paragraph (a) of this clause, that is information or data
of a personal nature about an individual, or proprietary information or
data submitted by or pertaining to an institution or organization, shall
not be disclosed without the prior written consent of the individual,
institution, or organization.
(f) Written advance notice
of at least 45 days will be provided to the Contracting Officer of the
Contractor's intent to release findings of studies or research, which
have the possibility of adverse effects on the public or the Federal agency,
as described in paragraph (b) of this clause. If the Contracting Officer
does not pose any objections in writing within the 45-day period, the
Contractor may proceed with disclosure. Disagreements not resolved by
the Contractor and the Contracting Officer will be settled pursuant to
the "Disputes" clause.
(g) Whenever the Contractor
is uncertain with regard to the proper handling of material under the
contract, or if the material in question is subject to the Privacy Act
or is confidential information subject to the provisions of this clause,
the Contractor should obtain a written determination from the Contracting
Officer prior to any release, disclosure, dissemination, or publication.
(h) Contracting Officer
determinations will reflect the result of internal coordination with appropriate
program and legal officials.
(i) The provisions of
paragraph (e) of this clause shall not apply when the information is subject
to conflicting or overlapping
[[Page 4257]]
provisions in other Federal, State or local laws.
(End of clause)
352.228-7 Insurance--Liability to third persons.
As prescribed in 328.311-2,
contracting officers shall include the following clause in all cost-reimbursement
contracts, in lieu of the clause at FAR 52.228-7:
Insurance--Liability to Third Persons (Dec. 1991)
(a)(1) Except as provided
in paragraph (a)(2) immediately following, or in paragraph (h) of this
clause (if the clause has a paragraph (h)), the Contractor shall provide
and maintain workers' compensation, employer's liability, comprehensive
general liability (bodily injury), comprehensive automobile liability
(bodily injury and property damage) insurance, and such other insurance
as the Contracting Officer may require under this contract.
(2) The Contractor may,
with the approval of the Contracting Officer, maintain a self-insurance
program; provided that, with respect to workers' compensation, the Contractor
is qualified pursuant to statutory authority.
(3) All insurance required
by this paragraph shall be in form and amount and for those periods as
the Contracting Officer may require or approve and with insurers approved
by the Contracting Officer.
(b) The Contractor agrees
to submit for the Contracting Officer's approval, to the extent and in
the manner required by the Contracting Officer, any other insurance that
is maintained by the Contractor in connection with performance of this
contract and for which the Contractor seeks reimbursement.
(c) Except as provided
in paragraph (h) of this clause (if the clause has a paragraph (h)), the
Contractor shall be reimbursed:
(1) For that portion of
the reasonable cost of insurance allocable to this contract, and required
or approved under this clause; and
(2) For certain liabilities
(and expenses incidental to such liabilities) to third persons not compensated
by insurance or otherwise within the funds available under the Limitation
of Cost or the Limitation of Funds clause of this contract. These liabilities
must arise out of the performance of this contract, whether or not caused
by the negligence of the Contractor or the Contractor's agents, servants,
or employees, and must be represented by final judgments or settlements
approved in writing by the Government. These liabilities are for:
(i) Loss of or damage
to property (other than property owned, occupied, or used by the Contractor,
rented to the Contractor, or in the care, custody, or control of the Contractor);
or
(ii) Death or bodily injury.
(d) The Government's liability
under paragraph (c) of this clause is limited to the amounts reflected
in final judgements, or settlements approved in writing by the Government,
but in no event to exceed the funds available under the Limitation of
Cost or Limitation of Funds clause of this contract. Nothing in this contract
shall be construed as implying that, at a later date, the Government will
request, or the Congress will appropriate, funds sufficient to meet any
deficiencies.
(e) The Contractor shall
not be reimbursed for liabilities (and expenses incidental to such liabilities):
(1) For which the Contractor
is otherwise responsible under the express terms of any clause specified
in the Schedule or elsewhere in the contract:
(2) For which the Contractor
has failed to insure or to maintain insurance as required by the Contracting
Officer; or
(3) That result from willful
misconduct or lack of good faith on the part of the Contractor's directors,
officers, managers, superintendents, or other representatives who have
supervision or direction of:
(i) All or substantially
all of the Contractor's business;
(ii) All or substantially
all of the Contractor's operations at any one plant or separate location
in which this contract is being performed; or
(iii) A separate and complete
major industrial operation in connection with the performance of this
contract.
(f) The provisions of
paragraph (e) of this clause shall not restrict the right of the Contractor
to be reimbursed for the cost of insurance maintained by the Contractor
in connection with the performance of this contract, other than insurance
required in accordance with this clause; provided, that such cost is allowable
under the Allowable Cost and Payment clause of this contract.
(g) If any suit or action
is filed or any claim is made against the Contractor, the cost and expense
of which may be reimbursable to the Contractor under this contract, and
the risk of which is then uninsured or is insured for less than the amount
claimed, the Contractor shall:
(1) Immediately notify
the Contracting Officer and promptly furnish copies of all pertinent papers
received;
(2) Authorize Government
representatives to collaborate with counsel for the insurance carrier
in settling or defending the claim when the amount of the liability claimed
exceeds the amount of coverage; and
(3) Authorize Government
representatives to settle or defend the claim and to represent the Contractor
in or to take charge of any litigation, if required by the Government,
when the liability is not insured or covered by the bond. The Contractor
may, at its own expense, be associated with the Government representatives
in any such claim or litigation.
(End of clause)
Alternate I (APR 1984).
If the successful offeror represents in the offer that the offeror is
partially immune from tort liability as a State agency, add the following
paragraph (h) to the basic clause:
(h) Notwithstanding paragraphs
(a) and (c) of this clause--
(1) The Government does
not assume any liability to third persons, nor will the Government reimburse
the Contractor for its liability to third persons, with respect to loss
due to death, bodily injury, or damage to property resulting in any way
from the performance of this contract or any subcontract under this contract;
and
(2) The Contractor need
not provide or maintain insurance coverage as required by paragraph (a)
of this clause; provided, that the Contractor may obtain any insurance
coverage deemed necessary, subject to approval by the Contracting Officer
as to form, amount, and duration. The Contractor shall be reimbursed for
the cost of such insurance and, to the extent provided in paragraph (c)
of this clause, to liabilities to third persons for which the Contractor
has obtained insurance coverage as provided in this paragraph, but for
which such coverage is insufficient in amount.
(End of clause)
Alternate II (APR 1984).
If the successful offeror represents in the offer that the offeror is
totally immune from tort liability as a State agency, substitute the following
paragraphs (a) and (b) for paragraphs (a) and (b) of the basic clause:
(a) The Government does
not assume any liability to third persons, nor will the Government reimburse
the Contractor for its liability to third persons, with respect to loss
due to death, bodily injury, or damage to property resulting in any way
from the performance of this contract or any subcontract under this contract.
(b) If any suit or action
is filed, or if any claim is made against the Contractor, the cost and
expense of which may be reimbursable to the Contractor under this contract,
the Contractor shall immediately notify the Contracting Officer and promptly
furnish copies of all pertinent papers received by the Contractor. The
Contractor shall, if required by the Government, authorize Government
representatives to settle or defend the claim and to represent the Contractor
in or take charge of any litigation. The Contractor may, at its own expense,
be associated with the Government representatives in any such claims or
litigation
(End of clause)
352.232-9 Withholding of contract payments.
Insert the following clause
in all solicitations and contracts other than purchase orders:
Withholding of Contract Payments (Apr. 1984)
Notwithstanding any other
payment provisions of this contract, failure of the Contractor to submit
required reports when due or failure to perform or deliver required work,
supplies, or services, will result in the withholding of payments under
this contract unless such failure arises out of causes beyond the control,
and without the fault or negligence of the Contractor as defined by the
clause entitled "Excusable Delays" or "Default", as
applicable. The Government shall promptly notify the Contractor of its
intention to withhold payment of any invoice or voucher submitted.
(End of clause)
352.232-74 Estimated cost and fixed fee-Incrementally funded contract.
The following clause,
or one reading substantially as it, shall be included in
[[Page 4258]]
the Special Provisions of an incrementally funded contract:
Consideration-Estimated Cost and Fixed Fee (Apr. 1984)
(a) It is estimated that
the total cost to the Government for full performance of this contract
will be $______, of which the sum of $______ represents the estimated
reimbursable costs and $______ represents the fixed-fee.
(b) Total funds currently
available for payment and allotted to this contract are $______, of which
$______ represents the estimated reimbursable costs and $______ represents
the fixed-fee. For further provisions on funding, see the Limitation of
Funds clause.
(c) It is estimated that
the amount currently allotted will cover performance of Phase I which
is scheduled to be completed by (date)______.
(d) The Contracting Officer
may allot additional funds to the contract without the concurrence of
the Contractor.
(End of clause)
352.232-75 Incremental funding.
The following provision
shall be included in all requests for proposals whenever the use of incremental
funding is contemplated:
Incremental Funding (Jan. 2001)
(a) It is the Government's
intention to negotiate and award a contract using the incremental funding
concepts described in the clause entitled Limitation of Funds. Under the
clause, which will be included in the resultant contract, initial funds
will be obligated under the contract to cover the first year of performance.
Additional funds are intended to be allotted to the contract by contract
modification, up to and including the full estimated cost of the contract,
to accomplish the entire project. While it is the Government's intention
to progressively fund this contract over the entire period of performance
up to and including the full estimated cost, the Government will not be
obligated to reimburse the Contractor for costs incurred in excess of
the periodic allotments, nor will the Contractor be obligated to perform
in excess of the amount allotted.
(b) The Limitation of
Funds clause to be included in the resultant contract shall supersede
the Limitation of Cost clause found in the General Provisions.
(End of provision)
352.233-70 Litigation and claims.
Insert the following clause
in all solicitations and resultant cost-reimbursement contracts:
Litigation and Claims (Apr. 1984)
The Contractor shall give
the Contracting Officer immediate notice in writing of any action, including
any proceeding before an administrative agency, filed against the Contractor
arising out of the performance of this contract, including, but not limited
to the performance of any subcontract hereunder; and any claim against
the Contractor the cost and expense of which is allowable under the clause
entitled "Allowable Cost and Payment." Except as otherwise directed
by the Contracting Officer, the Contractor shall furnish immediately to
the Contracting Officer copies of all pertinent papers received by the
Contractor with respect to such action or claim. To the extent not in
conflict with any applicable policy of insurance, the Contractor may,
with the Contracting Officer's approval, settle any such action or claim.
If required by the Contracting Officer, the Contractor shall effect an
assignment and subrogation in favor of the Government of all the Contractor's
rights and claims (except those against the Government) arising out of
any such action or claim against the Contractor; and authorize representatives
of the Government to settle or defend any such action or claim and to
represent the Contractor in, or to take charge of, any action. If the
settlement or defense of an action or claim is undertaken by the Government,
the Contractor shall furnish all reasonable assistance in effecting a
settlement or asserting a defense. Where an action against the Contractor
is not covered by a policy of insurance, the Contractor shall, with the
approval of the Contracting Officer, proceed with the defense of the action
in good faith. The Government shall not be liable for the expense of defending
any action or for any costs resulting from the loss thereof to the extent
that the Contractor would have been compensated by insurance which was
required by law or regulation or by written direction of the Contracting
Officer, but which the Contractor failed to secure through its own fault
or negligence. In any event, unless otherwise expressly provided in this
contract, the Contractor shall not be reimbursed or indemnified by the
Government for any liability loss, cost or expense, which the Contractor
may incur or be subject to by reason of any loss, injury or damage, to
the person or to real or personal property of any third parties as may
accrue during, or arise from, the performance of this contract.
(End of clause)
352.242-71 Final decisions on audit findings.
Insert the following clause
in all solicitations and resultant cost-reimbursement contracts.
Final Decisions on Audit Findings (Apr. 1984)
For the purpose of issuing
final decisions under the Disputes clause of this contract concerning
monetary audit findings, the Contracting Officer shall be that person
with ultimate responsibility for making that decision in accordance with
Chapter 1-105, Resolution of Audit Findings, of the Department's Grants
Administration Manual.
(End of clause)
352.249-14 Excusable delays.
Insert the following clause
in all solicitations and resultant contracts other than purchase orders
which do not have either a default or excusable delays clause, as prescribed
in 342.7003-1(a):
Excusable Delays (Apr. 1984)
(a) Except with respect
to failures of subcontractors, the Contractor shall not be considered
to have failed in performance of this contract if such failure arises
out of causes beyond the control and without the fault or negligence of
the Contractor.
(b) Such causes may include,
but are not restricted to, acts of God or of the public enemy, acts of
the Government in either its sovereign or contractual capacity, fires,
floods, epidemics, quarantine restrictions, strikes, freight embargoes,
and unusually severe weather, but in every case the failure to perform
must be beyond the control and without the fault or negligence of the
Contractor. If the failure to perform is caused by the failure of a subcontractor
to perform, and if such failure arises out of causes beyond the control
of both the Contractor and subcontractor, and without the fault or negligence
of either of them, the Contractor shall not be deemed to have failed in
performance of the contract, unless: the supplies or services to be furnished
by the subcontractor were obtainable from other sources, the Contracting
Officer shall have ordered the Contractor in writing to procure such supplies
or services from such other sources, and the Contractor shall have failed
to comply reasonably with such order. Upon request of the Contractor,
the Contracting officer shall ascertain the facts and extent of such failure
and, if he/she shall determine that any failure to perform was occasioned
by any one or more of the said causes, the delivery schedule shall be
revised accordingly, subject to the rights of the Government under the
termination clause hereof. (As used in this clause, the terms "subcontractor"
and "subcontractors" mean subcontractor(s) at any tier.)
(End of clause)
352.270-1 Accessibility of meetings, conferences, and seminars to persons
with disabilities.
The following clause is
to be used in accordance with 370.102:
Accessibility of Meetings, Conferences, and Seminars to Persons with Disabilities
(Jan. 2001)
The Contractor agrees
as follows:
(a) Planning. The Contractor
will develop a plan to assure that any meeting, conference, or seminar
held pursuant to this contract will meet or exceed the minimum accessibility
standards set forth in 28 CFR 36.101-36.500 and Appendix A: ADA Accessibility
Guidelines (ADAAG). The plan shall be submitted to the project officer
for approval prior to initiating action. ( A consolidated or master plan
for contracts requiring numerous meetings, conferences, or seminars may
be submitted in lieu of separate plans.)
(b) Facilities. Any facility
to be utilized for meetings, conferences, or seminars in performance of
this contract shall be in compliance with 28 CFR 36.101-36.500 and Appendix
A. The Contractor shall determine, by an on-site inspection, that the
facility meets these requirements.
[[Page 4259]]
(1) Parking.
Parking shall be in compliance with 28 CFR 36.101-
36.500 and Appendix A.
(2) Entrances. Entrances
shall be in compliance with 28 CFR 36.101-36.500 and Appendix A.
(3) Meeting Rooms. Meeting
rooms, including seating arrangements, shall be in compliance with 28
CFR 36.101-36.500 and Appendix A. In addition, stages, speaker platforms,
etc. which are to be used by persons in wheelchairs must be accessible
by ramps or lifts. When used, the ramp may not necessarily be independently
negotiable if space does not permit. However, any slope over 1:12 must
be approved by the Project Officer and the Contractor must provide assistance
to negotiate access to the stage or platform.
(4) Restrooms. Restrooms
shall be in compliance with 28 CFR 36.101-36.500 and Appendix A.
(5) Eating Facilities.
Eating facilities in the meeting facility must also comply with 28 CFR
36.101-36.500 and Appendix A.
(6) Overnight Facilities.
If overnight accommodations are required, the facility providing the overnight
accommodations shall also comply with 28 CFR 36.101-36.500 and Appendix
A.
(7) Water Fountains. Water
fountains shall comply with 28 CFR 36.101-36.500 and Appendix A.
(8) Telephones. Public
telephones shall comply with 28 CFR 36.101-36.500 and Appendix A.
(c) Provisions of Services
for Attendees with Sensory Impairments.
(1) The Contractor, in
planning the meeting, conference, or seminar, shall include in all announcements
and other materials pertaining to the meeting, conference, or seminar
a notice indicating that services will be made available to persons with
sensory impairments attending the meeting, if requested within five (5)
days of the date of the meeting, conference, or seminar. The announcement(s)
and other material(s) shall indicate that persons with sensory impairments
may contact a specific person(s), at a specific address and phone number(s),
to make their service requirements known. The phone number(s) shall include
a telecommunication device for the deaf (TDD).
(2) The Contractor shall
provide, at no additional cost to the individual, those services required
by persons with sensory impairments to insure their complete participation
in the meeting, conference, or seminar.
(3) As a minimum, when
requested in advance, the Contractor shall provide the following services:
(i) For persons with hearing
impairments, qualified interpreters. Also, the meeting rooms will be adequately
illuminated so signing by interpreters can be easily seen.
(ii) For persons with
vision impairments, readers and/or cassette materials, as necessary, to
enable full participation. Also, meeting rooms will be adequately illuminated.
(iii) Agenda and other
conference material(s) shall be translated into a usable form for persons
with sensory impairments. Readers, braille translations, large print text,
and/or tape recordings are all acceptable. These materials shall be available
to individuals with sensory impairments upon their arrival.
(4) The Contractor is
responsible for making a reasonable effort to ascertain the number of
individuals with sensory impairments who plan to attend the meeting, conference,
or seminar. However, if it can be determined that there will be no person
with sensory impairment in attendance, the provision of those services
under paragraph (c) of this clause for the nonrepresented group, or groups,
is not required.
(End of clause)
352.270-2 Indian preference.
The following clause shall
be used as prescribed in 370.202(a):
Indian Preference (Apr. 1984)
(a) The Contractor agrees
to give preference in employment opportunities under this contract to
Indians who can perform required work, regardless of age (subject to existing
laws and regulations), sex, religion, or tribal affiliation. To the extent
feasible and consistent with the efficient performance of this contract,
the Contractor further agrees to give preference in employment and training
opportunities under this contract to Indians who are not fully qualified
to perform regardless of age (subject to existing laws and regulations),
sex, religion, or tribal affiliation. The Contractor also agrees to give
preference to Indian organizations and Indian-owned economic enterprises
in the awarding of any subcontracts to the extent feasible and consistent
with the efficient performance of this contract. The Contractor shall
maintain statistical records as are necessary to indicate compliance with
this paragraph.
(b) In connection with
the Indian employment preference requirements of this clause, the Contractor
shall provide opportunities for training incident to such employment.
Such training shall include on-the-job, classroom or apprenticeship training
which is designed to increase the vocational effectiveness of an Indian
employee.
(c) If the Contractor
is unable to fill its employment and training opportunities after giving
full consideration to Indians as required by this clause, those needs
may be satisfied by selection of persons other than Indians in accordance
with the clause of this contract entitled "Equal Opportunity."
(d) If no Indian organizations
or Indian-owned economic enterprises are available under reasonable terms
and conditions, including price, for awarding of subcontracts in connection
with the work performed under this contract, the Contractor agrees to
comply with the provisions of this contract involving utilization of small
business concerns, small disadvantaged business concerns, and women-
owned small business concerns.
(e) As used in this clause:
(1) "Indian"
means a person who is a member of an Indian Tribe. If the Contractor has
reason to doubt that a person seeking employment preference is an Indian,
the Contractor shall grant the preference but shall require the individual
to provide evidence within thirty (30) days from the Tribe concerned that
the person is a member of the Tribe.
(2) "Indian Tribe"
means an Indian Tribe, pueblo, band, nation, or other organized group
or community, including Alaska Native village or regional or village corporation
as defined in or established pursuant to the Alaska Native Claims Settlement
Act (85 Stat. 688; 43 U.S.C. 1601) which is recognized as eligible for
the special programs and services provided by the United States to Indians
because of their status as Indians.
(3) "Indian organization"
means the governing body of any Indian Tribe or entity established or
recognized by such governing body in accordance with the Indian Financing
Act of 1974 (88 Stat. 77; 25 U.S.C. 1451); and
(4) "Indian-owned
economic enterprise" means any Indian-owned commercial, industrial,
or business activity established or organized for the purpose of profit,
provided that such Indian ownership shall constitute not less than 51
percent of the enterprise, and that ownership shall encompass active operation
and control of the enterprise.
(f) The Contractor agrees
to include the provisions of this clause, including this paragraph (f)
of this clause, in each subcontract awarded at any tier under this contract.
(g) In the event of noncompliance
with this clause, the Contracting Officer may terminate the contract in
whole or in part or may impose any other sanctions authorized by law or
by other provisions of the contract.
(End of clause)
352.270-3 Indian preference program.
The following clause shall
be used as prescribed in 370.202(b):
Indian Preference Program (Apr. 1984)
(a) In addition to the
requirements of the clause of this contract entitled "Indian Preference,"
the Contractor agrees to establish and conduct an Indian preference program
which will expand opportunities for Indians to receive preference for
employment and training in connection with the work to be performed under
this contract, and which will expand the opportunities for Indian organizations
and Indian-owned economic enterprises to receive a preference in the awarding
of subcontracts. In this connection, the Contractor shall:
(1) Designate a liaison
officer who will maintain liaison with the Government and the Tribe(s)
on Indian preference matters; supervise compliance with the provisions
of this clause; and administer the Contractor's Indian preference program.
(2) Advise its recruitment
sources in writing and include a statement in all advertisements for employment
that Indian applicants will be given preference in employment and training
incident to such employment.
(3) Not more than twenty
(20) calendar days after award of the contract, post a written notice
in the Tribal office of any reservations on which or near where the work
under this contract is to be performed
[[Page 4260]]
that sets forth the Contractor's employment needs and related training
opportunities. The notice shall include the approximate numbers and types
of employees needed; the approximate dates of employment; the experience
or special skills required for employment, if any; training opportunities
available; and other pertinent information necessary to advise prospective
employees of any other employment requirements. The Contractor shall also
request the Tribe(s) on or near whose reservation(s) the work is to be
performed to provide assistance to the Contractor in filling its employment
needs and training opportunities. The Contracting Officer will advise
the Contractor of the name, location, and phone number of the Tribal officials
to contact in regard to the posting of notices and requests for Tribal
assistance.
(4) Establish and conduct
a subcontracting program which gives preference to Indian organizations
and Indian-owned economic enterprises as subcontractors and suppliers
under this contract. The Contractor shall give public notice of existing
subcontracting opportunities and, to the extent feasible and consistent
with the efficient performance of this contract, shall solicit bids or
proposals only from Indian organizations or Indian-owned economic enterprises.
The Contractor shall request assistance and information on Indian firms
qualified as suppliers or subcontractors from the Tribe(s) on or near
whose reservation(s) the work under the contract is to be performed. The
Contracting Officer will advise the Contractor of the name, location,
and phone number of the Tribal officials to be contacted in regard to
the request for assistance and information. Public notices and solicitations
for existing subcontracting opportunities shall provide an equitable opportunity
for Indian firms to submit bids or proposals by including: A clear description
of the supplies or services required, including quantities, specifications,
and delivery schedules which facilitate the participation of Indian firms;
A statement indicating that preference will be given to Indian organizations
and Indian-owned economic enterprises in accordance with section 7(b)
of Public Law 93-638 (88 Stat. 2205; 25 U.S.C. 450e(b)); Definitions for
the terms "Indian organization" and "Indian-owned economic
enterprise" as prescribed under the "Indian Preference"
clause of this contract; A statement to be completed by the bidder or
offeror that it is an Indian organization or Indian-owned economic enterprise;
and A closing date for receipt of bids or proposals which provides sufficient
time for preparation and submission of a bid or proposal. If after soliciting
bids or proposals from Indian organizations and Indian-owned economic
enterprises, no responsive bid or acceptable proposal is received, the
Contractor shall comply with the requirements of paragraph (d) of the
"Indian Preference" clause of this contract. If one or more
responsible bids or acceptable proposals are received, award shall be
made to the low responsible bidder or acceptable offeror if the price
is determined to be reasonable. If the low responsive bid or acceptable
proposal is determined to be unreasonable as to price, the Contractor
shall attempt to negotiate a reasonable price and award a subcontract.
If a reasonable price cannot be agreed upon, the Contractor shall comply
with the requirements of paragraph (d) of the "Indian Preference"
clause of this contract.
(5) Maintain written records
under this contract which indicate: The numbers of Indians seeking employment
for each employment position available under this contract; The number
and types of positions filled by Indians and non-Indians, and the total
number of Indians employed under this contract; For those positions where
there are both Indian and non-Indian applicants, and a non-Indian is selected
for employment, the reason(s) why the Indian applicant was not selected;
Actions taken to give preference to Indian organizations and Indian-owned
economic enterprises for subcontracting opportunities which exist under
this contract; Reasons why preference was not given to Indian firms as
subcontractors or suppliers for each requirement where it was determined
by the Contractor that such preference would not be consistent with the
efficient performance of the contract; and The number of Indian organizations
and Indian-owned economic enterprises contacted, and the number receiving
subcontract awards under this contract.
(6) Submit to the Contracting
Officer for approval a quarterly report which summarizes the Contractor's
Indian preference program and indicates the number and types of available
positions filled by Indians and non-Indians, and the dollar amounts of
all subcontracts awarded to Indian organizations and Indian-owned economic
enterprises, and to all other firms.
(7) Maintain records pursuant
to this clause and keep them available for review by the Government until
expiration of one (1) year after final payment under this contract, or
for such longer period as may be required by any other clause of this
contract or by applicable law or regulation.
(b) For purposes of this
clause, the following definitions of terms shall apply:
(1) The terms "Indian,"
"Indian Tribe," "Indian Organization," and "Indian-owned
economic enterprise" are defined in the clause of this contract entitled
"Indian Preference."
(2) "Indian reservation"
includes Indian reservations, public domain Indian Allotments, former
Indian reservations in Oklahoma, and land held by incorporated Native
groups, regional corporations, and village corporations under the provisions
of the Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601
et seq.)
(3) "On or near an
Indian Reservation" means on a reservation or reservations or within
that area surrounding an Indian reservation(s) where a person seeking
employment could reasonably be expected to commute to and from in the
course of a work day.
(c) Nothing in the requirements
of this clause shall be interpreted to preclude Indian Tribes from independently
developing and enforcing their own Indian preference requirements. Such
requirements must not conflict with any Federal statutory or regulatory
requirement dealing with the award and administration of contracts.
(d) The Contractor agrees
to include the provisions of this clause, including this paragraph (d),
in each subcontract awarded at any tier under this contract and to notify
the Contracting Officer of such subcontracts.
(e) In the event of noncompliance
with this clause, the Contracting Officer may terminate the contract in
whole or in part or may impose any other sanctions authorized by law or
by other provisions of the contract.
(End of clause)
352.270-4 Pricing of adjustments.
Insert the following clause
in all solicitations and resultant fixed-priced contracts other than purchase
orders.
Pricing of Adjustments (Jan. 2001)
When costs are a factor
in determination of a contract price adjustment pursuant to the "Changes"
clause or any provision of this contract, such costs shall be determined
in accordance with the applicable cost principles and procedures set forth
below:
------------------------------------------------------------------------
Principles Types of organizations
------------------------------------------------------------------------
(a) Subpart 31.2 of the Federal Commercial.
Acquisition Regulation.
(b) Subpart 31.3 of the Federal Educational.
Acquisition Regulation.
(c) Subpart 31.6 of the Federal State, local, and federally
Acquisition Regulation. recognized Indian tribal
governments.
(d) 45 CFR Part 74 Appendix E............. Hospitals (permforming
research and development
contracts only.
(e) Subpart 31.7 of the Federal Other nonprofit
Acquisition Regulation. institutions.
------------------------------------------------------------------------
(End of clause)
352.270-5 Key personnel.
Insert the following clause
in all solicitations and resultant cost-reimbursement contracts.
Key Personnel (Apr. 1984)
The personnel specified
in this contract are considered to be essential to the work being performed
hereunder. Prior to diverting any of the specified individuals to other
programs, the Contractor shall notify the Contracting Officer reasonably
in advance and shall submit justification (including proposed substitutions)
in sufficient detail to permit evaluation of the impact on the program.
No diversion shall be made by the Contractor without the written consent
of the Contracting Officer; provided, that the Contracting Officer may ratify
in writing such diversion and such ratification shall constitute the consent
of the Contracting Officer required by this clause. The contract may be
modified from time to time during the course of the contract to either add
or delete personnel, as appropriate.
(End of clause)
[[Page 4261]]
352.270-6 Publications and Publicity.
Insert the following clause
in all solicitations and resultant contracts.
Publications and Publicity (Jul. 1991)
(a) Unless otherwise specified
in this contract, the Contractor is encouraged to publish the results of
its work under this contract. A copy of each article submitted by the Contractor
for publication shall be promptly sent to the Project Officer. The Contractor
shall also inform the Project Officer when the article or other publication
is published, and furnish a copy of it as finally published.
(b) The Contractor shall
include in any publication resulting from work performed under this contract
a disclaimer reading as follows:
The content of this publication
does not necessarily reflect the views or policies of the Department of
Health and Human Services, nor does mention of trade names, commercial products,
or organizations imply endorsement by the U.S. Government."
(End of clause)
352.270-7 Paperwork Reduction Act.
Insert the following clause
in all solicitations and contracts.
Paperwork Reduction Act (Jan. 2001)
(a) In the event that it
subsequently becomes a contractual requirement to collect or record information
calling either for answers to identical questions from 10 or more persons
other than Federal employees, or information from Federal employees which
is outside the scope of their employment, for use by the Federal government
or disclosure to third parties, the Paperwork Reduction Act of 1995 (Pub.
L. 104-13) shall apply to this contract. No plan, questionnaire, interview
guide or other similar device for collecting information (whether repetitive
or single-time) may be used without first obtaining clearance from the Office
of Management and Budget (OMB). Contractors and Project Officers should
be guided by the provisions of 5 CFR Part 1320, Controlling Paperwork Burdens
on the Public, and seek the advice of the HHS operating division or Office
of the Secretary Reports Clearance Officer to determine the procedures for
acquiring OMB clearance.
(b) The Contractor shall
obtain the required OMB clearance through the Project Officer before expending
any funds or making public contracts for the collection of data. The authority
to expend funds and proceed with the collection of information shall be
in writing by the Contracting Officer. The Contractor must plan at least
120 days for OMB clearance. Excessive delays caused by the Government which
arises out of causes beyond the control and without the fault or negligence
of the Contractor will be considered in accordance with the Excusable Delays
or Default clause of this contract
(End of clause)
352.270-8 Protection of human subjects.
(a) The following provision
shall be included in solicitations expected to involve human subjects:
Notice to Offerors of Requirements of 45 CFR Part 46, Protection of Human
Subjects (Jan. 2001)
(a) Copies of the Department
of Health and Human Services (Department) regulations for the protection
of human subjects, 45 CFR Part 46, are available from the Office for Protection
from Research Risks (OPRR), National Institutes of Health, Bethesda, Maryland
20892. The regulations provide a systematic means, based on established
ethical principles, to safeguard the rights and welfare of individuals who
participate as subjects in research activities supported or conducted by
the Department.
(b) The regulations define
a human subject as a living individual about whom an investigator (whether
professional or student) conducting research obtains data through intervention
or interaction with the individual, or identifiable private information.
The regulations extend to the use of human organs, tissue, and body fluids
from individually identifiable human subjects as well as to graphic, written,
or recorded information derived from individually identifiable human subjects.
The use of autopsy materials is governed by applicable State and local law
and is not directly regulated by 45 CFR Part 46.
(c) Activities in which
the only involvement of human subjects will be in one or more of the categories
set forth in 45 CFR 46.101(b)(1-6) are exempt from coverage.
(d) Inappropriate designations
of the noninvolvement of human subjects or of exempt categories of research
in a project may result in delays in the review of a proposal. The National
Institutes of Health will make a final determination of whether the proposed
activities are covered by the regulations or are in an exempt category,
based on the information provided in the proposal. In doubtful cases, prior
consultation with OPRR, (telephone: 301-496-
7014), is recommended.
(e) In accordance with 45
CFR Part 46, prospective Contractors being considered for award shall be
required to file with OPRR an acceptable Assurance of Compliance with the
regulations, specifying review procedures and assigning responsibilities
for the protection of human subjects. The initial and continuing review
of a research project by an institutional review board shall assure that
the rights and welfare of the human subjects involved are adequately protected,
that the risks to the subjects are reasonable in relation to the potential
benefits, if any, to the subjects and the importance of the knowledge to
be gained, and that informed consent will be obtained by methods that are
adequate and appropriate. Prospective Contractors proposing research that
involves human subjects shall be contacted by OPRR and given detailed instructions
for establishing an institutional review board and filing an Assurance of
Compliance.
(f) It is recommended that
OPRR be consulted for advice or guidance concerning either regulatory requirements
or ethical issues pertaining to research involving human subjects.
(End of provision)
(b) The following clause
shall be included in solicitations and resultant contracts involving human
subjects:
Protection of Human Subjects (Jan. 2001)
(a) The Contractor agrees
that the rights and welfare of human subjects involved in research under
this contract shall be protected in accordance with 45 CFR Part 46 and with
the Contractor's current Assurance of Compliance on file with the Office
for Protection from Research Risks (OPRR), National Institutes of Health
(NIH). The Contractor further agrees to provide certification at least annually
that the Institutional Review Board has reviewed and approved the procedures,
which involve human subjects in accordance with 45 CFR Part 46 and the Assurance
of Compliance.
(b) The Contractor shall
bear full responsibility for the performance of all work and services involving
the use of human subjects under this contract in a proper manner and as
safely as is feasible. The parties hereto agree that the Contractor retains
the right to control and direct the performance of all work under this contract.
Nothing in this contract shall be deemed to constitute the Contractor or
any subcontractor, agent or employee of the Contractor, or any other person,
organization, institution, or group of any kind whatsoever, as the agent
or employee of the Government. The Contractor agrees that it has entered
into this contract and will discharge its obligations, duties, and undertakings
and the work pursuant thereto, whether requiring professional judgement
or otherwise, as an independent contractor without imputing liability on
the part of the Government for the acts of the Contractor or its employees.
(c) If at any time during
the performance of this contract, the Contracting officer determines, in
consultation with the OPRR, NIH, that the Contractor is not in compliance
with any of the requirements and/or standards stated in paragraphs (a) and
(b) above, the Contracting Officer may immediately suspend, in whole or
in part, work and further payments under this contract until the Contractor
corrects the noncompliance. Notice of the suspension may be communicated
by telephone and confirmed in writing. If the Contractor fails to complete
corrective action within the period of time designated in the Contracting
Officer's written notice of suspension, the Contracting Officer may, in
consultation with OPRR, NIH, terminate this contract in a whole or in part,
and the Contractor's name may be removed
[[Page 4262]]
form the list of those contractors with approved Health and Human Services
Human Subject Assurances.
(End of clause)
352.270-9 Care of laboratory animals.
(a) The following provision
shall be included in solicitations expected to involve vertebrate animals:
Notice to Offerors of Requirement for Adequate Assurance of Protection of
Vertebrate Animal Subjects (Sep. 1985)
The PHS Policy on Humane
Care and Use of Laboratory Animals by Awardee Institutions establishes a
number of requirements for research activities involving animals. Before
award may be made to an applicant organization, the organization shall file,
with the Office for Protection from Research Risks (OPRR), National Institutes
of Health (NIH), a written Animal Welfare Assurance which commits the organization
to comply with the provisions of the PHS Policy on Humane Care and Use of
Laboratory Animals by Awardee Institutions, the Animal Welfare Act, and
the Guide for the Care and Use of Laboratory Animals prepared by the Institute
of Laboratory Animal Resources. In accordance with the PHS Policy on Humane
Care and Use of Laboratory Animals by Awardee Institutions, applicant organizations
must establish a committee, qualified through the experience and expertise
of its members, to oversee the institution's animal program, facilities
and procedures. No award involving the use of animals shall be made unless
the Animal Welfare Assurance has been approved by OPRR. Prior to award,
the Contracting Officer will notify Contractor(s) selected for projects
that involve live vertebrate animals that an Animal Welfare Assurance is
required. The Contracting Officer will request that OPRR negotiate an acceptable
Animal Welfare Assurance with those Contractor(s). For further information,
OPRR may be contacted at NIH, Bethesda, Maryland 20892 (301-496-7041).
(End of provision)
(b) The following clause
shall be included in all solicitations and resultant contracts involving
research on vertebrate animals:
Care of Live Vertebrate Animals (Jan.2001)
(a) Before undertaking performance
of any contract involving animal related activities, the Contractor shall
register with the Secretary of Agriculture of the United States in accordance
with 7 U.S.C. 2136 and 9 CFR sections 2.25 through 2.28. The Contractor
shall furnish evidence of the registration to the Contracting Officer.
(b) The Contractor shall
acquire vertebrate animals used in research from a dealer licensed by the
Secretary of Agriculture under 7 U.S.C. 2133 and 9 CFR Sections 2.1-2.11,
or from a source that is exempt from licensing under those sections.
(c) The Contractor agrees
that the care and use of any live vertebrate animals used or intended for
use in the performance of this contract will conform with the PHS Policy
on Humane Care of Use of Laboratory Animals, the current Animal Welfare
Assurance, the Guide for the Care and Use of Laboratory Animals prepared
by the Institute of Laboratory Animal Resources and the pertinent laws and
regulations of the United States Department of Agriculture (see 7 U.S.C.
2131 et seq. and 9 CFR Subchapter A, Parts 1-4). In case of conflict between
standards, the more stringent standard shall be used.
(d) If at any time during
performance of this contract, the Contracting Officer determines, in consultation
with the Office for Protection from Research Risks (OPRR), National Institutes
of Health (NIH), that the Contractor is not in compliance with any of the
requirements and/or standards stated in paragraphs (a) through (c) above,
the Contracting Officer may immediately suspend, in whole or in part, work
and further payments under this contract until the Contractor corrects the
noncompliance. Notice of the suspension may be communicated by telephone
and confirmed in writing. If the Contractor fails to complete corrective
action within the period of time designated in the Contracting Officer's
written notice of suspension, the Contracting Officer may, in consultation
with OPRR, NIH, terminate this contract in whole or in part, and the Contractor's
name may be removed from the list of those contractors with approved PHS
Animal Welfare Assurances.
Note: Note: The Contractor
may request registration of its facility and a current listing of licensed
dealers from the Regional Office of the Animal and Plant Health Inspection
Service (APHIS), USDA, for the region in which its research facility is
located. The location of the appropriate APHIS Regional Office, as well
as information concerning this program may be obtained by contacting the
Animal Care Staff, USDA/APHIS, 4700 River Road, Riverdale, Maryland 20737.
(End of Clause)
PART 353--FORMS
Subpart 353.3--Illustrations of Forms
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 353.3--Illustrations of Forms
353.370-674 Form HHS 674, Structured Approach Profit/Fee Objective.
This form is available from
local cost advisory personnel. For copies of the form, contact the Program
Support Center at (301) 443-
6740.
PART 370--SPECIAL PROGRAMS AFFECTING ACQUISITION
Subpart 370.1--Accessibility of Meetings, Conferences, and Seminars to Persons
with Disabilities
Sec.
370.101 Policy.
370.102 Responsibilities.
Subpart 370.2--Indian Preference in Employment, Training, and Subcontracting
Opportunities
370.201 Statutory requirements.
370.202 Applicability.
370.203 Definitions.
370.204 Compliance enforcement.
370.205 Tribal preference requirements.
Subpart 370.3--Acquisitions Involving Human Subjects
370.300 Scope of subpart.
370.301 Policy.
370.302 Types of assurances.
370.303 Notice to offerors.
370.304 Contract clause.
Subpart 370.4--Acquisitions Involving the Use of Laboratory Animals
370.400 Scope of subpart.
370.401 Policy.
370.402 Assurances.
370.403 Notice to offerors.
370.404 Contract clause.
Subpart 370.5--Acquisitions Under the Buy Indian Act
370.500 Scope of subpart.
370.501 Policy.
370.502 Definitions.
370.503 Requirements.
370.504 Competition.
370.505 Responsibility determinations.
Authority: 5 U.S.C. 301;
40 U.S.C. 486(c).
Subpart 370.1--Accessibility of Meetings, Conferences, and Seminars to Persons
with Disabilities
370.101 Policy.
(a) It is the policy of
HHS that all meetings, conferences, and seminars be accessible to persons
with disabilities. For the purpose of this policy, accessibility is defined
as both physical access to meeting, conference, and seminar sites, and aids
and services to enable individuals with sensory disabilities to fully participate
in meetings, conferences, and seminars.
(b) In regard to acquisition,
the policy is applicable to all contracts where the statement of work requires
the contractor to conduct meetings, conferences, or seminars that are open
to the public or involve HHS personnel, but not to ad hoc meetings that
may be necessary or incidental to contract performance.
370.102 Responsibilities.
(a) The contracting officer
shall include the clause in 352.270-1 in every solicitation and resulting
contract when the statement of work requires the contractor to conduct meetings,
conferences, or seminars in accordance with 370.101(b).
(b) The project officer
shall be responsible for obtaining, reviewing, and approving the contractor's
plan, which is to be submitted in response to
[[Page 4263]]
paragraph (a) of the contract clause in 352.270-1. A consolidated or master
plan for contracts requiring numerous meetings, conferences, or seminars
will be acceptable. The project officer, prior to approving the plan, should
consult with the Office of Engineering Services serving the region where
the meeting, conference, or seminar is to be held, to assure that the contractor's
plan meets the accessibility requirements of the contract clause. The Office
of Engineering Services should determine the adequacy of the contractor's
plan, and notify the project officer, in writing, within ten (10) working
days of receiving the request from the project officer.
Subpart 370.2--Indian Preference in Employment, Training, and Subcontracting
Opportunities
370.201 Statutory requirements.
Section 7(b) of the Indian
Self-Determination and Education Assistance Act, Public Law 93-638, 88 Stat.
2205, 25 U.S.C. 450e(b), requires:
"Any contract, subcontract,
grant, or subgrant pursuant to this Act, the Act of April 16, 1934 (48 Stat.
596), as amended, or any other Act authorizing Federal contracts with or
grants to Indian organizations or for the benefit of Indians, shall require
that to the greatest extent feasible:
(1) Preferences and opportunities
for training and employment in connection with the administration of such
contracts or grants shall be given to Indians; and
(b) Preference in the award
of subcontracts and subgrants in connection with the administration of such
contracts or grants shall be given to Indian organizations and to Indian-owned
economic enterprises as defined in section 3 of the Indian Financing Act
of 1974 (88 Stat. 77)."
370.202 Applicability.
The Indian Preference clause
set forth in 352.270-2 and the Indian Preference Program clause set forth
in 352.270-3 have been developed to implement section 7 (b) of Public Law
93-638 for all activities of the Department. The clauses shall be used by
any affected departmental contracting activity as follows, except solicitations
issued and contracts awarded pursuant to Title I of Public Law 93-638 (25
U.S.C. 450 et seq.) are exempted:
(a) The Indian Preference
clause (352.270-2) shall be included in each solicitation and resultant
contract, regardless of dollar amount:
(1) When the contract is
to be awarded pursuant to an act specifically authorizing contracts with
Indian organizations; or
(2) Where the work to be
performed under the contract is specifically for the benefit of Indians
and is in addition to any incidental benefits which might otherwise accrue
to the general public.
(b) The Indian Preference
Program clause (352.270-3) shall be included in each solicitation and resultant
contract when:
(1) The dollar amount of
the acquisition is expected to equal or exceed $50,000 for nonconstruction
work or $100,000 for construction work;
(2) The Indian Preference
clause is to be included in the solicitation and resultant contract; and
(3) The determination is
made, prior to solicitation, that the work to be performed under the resultant
contract will take place in whole or in substantial part on or near an Indian
reservation(s). In addition, the Indian Preference Program clause may be
included in any solicitation and resultant contract below the $50,000 or
$100,000 level for nonconstruction or construction contracts, respectively,
but which meet the requirements of paragraphs (b)(2) and (3) of this section
370.202, and, in the opinion of the contracting activity, offer substantial
opportunities for Indian employment, training, and subcontracting.
370.203 Definitions.
For purposes of this subpart
370.2, the following definitions shall apply:
(a) Indian means a person
who is a member of an Indian Tribe. If the contractor has reason to doubt
that a person seeking employment preference is an Indian, the contractor
shall grant the preference but shall require the individual to provide evidence
within thirty (30) days from the Tribe concerned that the person is a member
of the Tribe.
(b) Indian Tribe means an
Indian Tribe, pueblo, band, nation, or other organized group or community,
including any Alaska Native Village or regional or village corporation as
defined in or established pursuant to the Alaska Native Claims Settlement
Act (85 Stat. 688, 43 U.S.C. 1601) which is recognized as eligible for the
special programs and services provided by the United States to Indians because
of their status as Indians.
(c) Indian organization
means the governing body of any Indian Tribe or entity established or recognized
by such governing body in accordance with the Indian Financing Act of 1974
(88 Stat. 77, 25 U.S.C. 1451).
(d) Indian-owned economic
enterprise means any Indian-owned commercial, industrial, or business activity
established or organized for the purpose of profit, provided that such Indian
ownership shall constitute not less than 51 percent of the enterprise, and
the ownership shall encompass active operation and control of the enterprise.
(e) Indian reservation includes
Indian reservations, public domain Indian allotments, former Indian reservations
in Oklahoma, and land held by incorporated Native groups, regional corporations,
and village corporations under the provisions of the Alaska Native Claims
Settlement Act (85 Stat. 688, 43 U.S.C. 1601 et seq.)
(f) On or near an Indian
Reservation means on a reservation or reservations or within that area surrounding
an Indian reservation(s) where a person seeking employment could reasonably
be expected to commute to and from in the course of a work day.
370.204 Compliance enforcement.
(a) The concerned contracting
activity shall be responsible for conducting periodic reviews to insure
contractor compliance with the requirements of the clauses set forth in
352.270-2 and 352.270-3. These reviews may be conducted with the assistance
of the Indian Tribe(s) concerned.
(b) Complaints of noncomplaince
with the requirements of the clauses set forth in 352.270-2 and 352.270-3
which are filed in writing with the contracting activity shall be promptly
investigated and resolved by the contracting officer.
370.205 Tribal preference requirements.
(a) Where the work under
a contract is to be performed on an Indian reservation, the contracting
activity may supplement the clause set forth in 352.270-3 by adding specific
Indian preference requirements of the Tribe on whose reservation the work
is to be performed. The supplemental requirements shall be jointly developed
for the contract by the contracting activity and the Tribe. Supplemental
preference requirements must represent a further implementation of the requirements
of section 7(b) of Public Law 93-638 and must be approved by the affected
program director and approved for legal sufficiency by the Business and
Administrative Law Division, OGC, or a regional attorney before being added
to a solicitation and resultant contract. Any supplemental preference requirements
to be added to the clause in 352.270-3 shall be included in the solicitation
and clearly identified in order to insure uniform understanding of the additional
requirements by all prospective bidders or offerors.
(b) Nothing in this part
shall be interpreted to preclude Tribes from independently developing and
enforcing their own tribal preference requirements. Such independently
[[Page 4264]]
developed tribal preference requirements shall not, except as provided in
paragraph (a) of this section, become a requirement in contracts covered
under this subpart 370.2, and must not conflict with any Federal statutory
or regulatory requirement concerning the award and administration of contracts.
Subpart 370.3--Acquisitions Involving Human Subjects
370.300 Scope of subpart.
This subpart applies to
all research and development activities involving human subjects conducted
under contract (see 45 CFR 46.102(d) and (f)).
370.301 Policy.
It is the policy of the
Department of Health and Human Services (DHHS) that no contract involving
human subjects shall be awarded until acceptable assurance has been given
that the activity will be subject to initial and continuing review by an
appropriate Institutional Review Board (IRB) as described in DHHS regulations
at 45 CFR 46.103. An applicable Multiple Project Assurance (MPA) or Single
Project Assurance (SPA), approved by the Office for Protection from Research
Risks (OPRR), National Institutes of Health (NIH), shall be required of
each contractor, subcontractor, or cooperating institution having responsibility
for human subjects involved in performance of the contract. The OPRR, NIH,
is responsible for negotiating assurances covering all DHHS-supported or
DHHS-conducted activities involving human subjects. Contracting officers
shall be guided by OPRR regarding nonaward or termination of a contract
due to inadequate assurance or breach of assurance for protection of human
subjects.
370.302 Types of assurances.
Assurances may be one of
two types:
(a) Multiple Project Assurance
(MPA). An MPA describes the oversight procedures applicable to all DHHS-supported
human subjects activities within an institution having a significant number
of concurrent projects. An MPA listed in OPRR's current "List of Institutions
Which Have an Approved MPA" will be considered acceptable for purposes
of this policy.
(b) Single Project Assurance
(SPA). An SPA describes the oversight procedures applicable to a single
DHHS-supported human subjects activity. SPAs may be approved in modified
form to meet unusual requirements. SPAs are not solicited from institutions
with OPRR approved MPAs. Copies of proposals selected for negotiation and
requiring one or more SPAs shall be forwarded to the Human Subjects Assurance
Branch, OPRR, NIH MSC 7507, 6100 Executive Blvd., Room 3B01, Rockville,
Maryland 20892, as early as possible so that timely action may be taken
to secure the SPA(s).
370.303 Notice to offerors.
(a) Solicitations shall
contain the notice to offerors in 352.270-
8(a) whenever contract performance is expected to involve human subjects.
(b) IRB approval of proposals
submitted by institutions having an OPRR-approved MPA should be certified
in the manner required by instructions for completion of the contract proposal;
or by completion of a DHHS Form 310, Protection of Human Subjects Assurance
Identification/Certification/Declaration; or by letter indicating the institution's
OPRR-assigned MPA number, the date of IRB review and approval, and the type
of review (convened or expedited). The date of IRB approval must not be
more than 12 months prior to the deadline for proposal submission.
(c) SPAs for contractors,
subcontractors, or cooperating institutions generally will not be requested
prior to determination that a contract proposal has been selected for negotiation.
When an SPA is submitted, it provides certification for the initial contract
period. No additional documentation is required. If the contract provides
for additional years to complete the project, the noncompetitive renewal
proposal shall be certified in the manner described in the preceding paragraph.
370.304 Contract clause.
The clause set forth in
352.270-8(b) shall be inserted in all solicitations and resultant contracts
involving human subjects.
Subpart 370.4--Acquisitions Involving the Use of Laboratory Animals
370.400 Scope of subpart.
This subpart applies to
all research, research training and biological testing activities involving
live vertebrate animals conducted under contract (see Public Health Service
Policy on Humane Care and Use of Laboratory Animals (PHS Policy), Rev. 1986,
Repr. 1996).
370.401 Policy.
(a) It is the policy of
the Department of Health and Human Services (DHHS) and the Public Health
Service agencies that no contract involving live vertebrate animals shall
be awarded until acceptable assurance has been given that the activity will
be subject to initial and continuing review by an appropriate Institutional
Animal Care and Use Committee (IACUC) as described in the PHS Policy at
IV. B. 6. and 7. An applicable Full Animal Welfare Assurance or Interinstitutional
Agreement/Assurance, approved by the Office for Protection from Research
Risks (OPRR), National Institutes of Health (NIH), shall be required of
each contractor, subcontractor, or cooperating institution having responsibility
for animal care and use involved in performance of the contract (see PHS
Policy II., IV. A., and V. B.).
(b) The OPRR, NIH, is responsible
for negotiating assurances covering all DHHS/PHS-supported or DHHS/PHS-conducted
activities involving the care and use of live vertebrate animals. Contracting
officers shall be guided by OPRR regarding adequate animal care, and use,
approval, disapproval, restriction, or withdrawal of approval of assurances
(see PHS Policy V. A.).
370.402 Assurances.
(a) Assurances may be one
of two types:
(1) Full Animal Welfare
Assurance (AWA). An AWA describes the institution's complete program for
the care and use of animals, including but not limited to the facilities,
occupational health, training, veterinary care, IACUC procedures and lines
of authority and responsibility. An AWA listed in OPRR's list of institutions
which have an approved full AWA will be considered acceptable for purposes
of this policy.
(2) Interinstitutional Agreement/Assurance
(IAA). An IAA describes the arrangements between an offeror and usually
a subcontractor where animal activities will occur. An IAA is limited to
the specific award or single project.
(b) Copies of proposals
selected for negotiation and requiring an assurance shall be forwarded to
the Assurance Branch, Division of Animal Welfare, OPRR, NIH MSC 7507, 6100
Executive Blvd., Room 3B01, Rockville, Maryland 20892, as early as possible
in order that timely action may be taken to secure the necessary assurances.
(c) A contractor providing
animal care services at an assured entity, such as a Government-owned, contractor-operated
(GOCO) site, does not need a separate assurance because the GOCO site normally
covers the contractor services in the GOCO site assurance.
[[Page 4265]]
370.403 Notice to offerors.
Solicitations shall contain
the notice to offerors in 352.270-9(a) whenever contract performance is
expected to involve the use of live vertebrate animals.
(a) For offerors having
a full AWA on file with OPRR, IACUC approval of the use of animals shall
be submitted in the manner required by instructions for completion of the
contract proposal, but prior to the technical review of the proposal. The
date of IACUC review and approval must not be more than 36 months prior
to the deadline for proposal submission.]
(b) Non-assured offerors
are not required to submit assurances or IACUC approval with proposals.
OPRR will contact contractors, subcontractors and cooperating institutions
to negotiate necessary assurances and verify IACUC approvals when requested
by appropriate DHHS/PHS staff.
370.404 Contract clause.
The clause set forth in
352.270-9(b) shall be included in all solicitations and resultant contracts
involving the care and use of live vertebrate animals.
Subpart 370.5--Acquisitions Under the Buy Indian Act
370.500 Scope of subpart.
This subpart sets forth
the policy on preferential acquisition from Indians under the negotiation
authority of the Buy Indian Act. Applicability of this subpart is limited
to acquisitions made by or on behalf of the Indian Health Service of the
Public Health Service.
370.501 Policy.
(a) The Indian Health Service
will utilize the negotiation authority of the Buy Indian Act to give preference
to Indians whenever the use of that authority is authorized and is practicable.
The Buy Indian Act, 25 U.S.C. 47, prescribes the application of the advertising
requirements of section 3709 of the Revised Statutes to the acquisition
of Indian supplies. As set out in 25 U.S.C. 47, the Buy Indian Act provides
as follows:
So far as may be practicable
Indian labor shall be employed, and purchases of the products (including,
but not limited to printing, notwithstanding any other law) of Indian industry
may be made in open market in the discretion of the Secretary of the Interior.
(b) The functions, responsibilities,
authorities, and duties of the Secretary of the Interior for maintenance
and operation of hospital and health facilities for Indians and for the
conservation of the health of Indians are transferred to the Surgeon General
of the United States under the supervision of the Secretary of Health and
Human Services, 42 U.S.C. 2001 (a). Accordingly, the Secretary of Health
and Human Services is authorized to use the Buy Indian Act in the acquisition
of products of Indian industry in connection with the maintenance and operation
of hospital and health facilities for Indians and for the conservation of
the health of Indians. This authority has been delegated exclusively to
the Indian Health Service and is not available for use by any other HHS
component (unless that component is making an acquisition on behalf of the
Indian Health Service).
(c) Use of the Buy Indian
Act negotiation authority has been emphasized in subsequent legislation,
particularly Public Law 94-437 and Public Law 96-537.
370.502 Definitions.
Buy Indian contract means
any contract involving activities covered by the Buy Indian Act that is
negotiated under the provisions of 41 U.S.C. 252(c) and 25 U.S.C. 47 between
an Indian firm and a contracting officer representing the Indian Health
Service.
Indian means a member of
any tribe, pueblo, band, group, village or community that is recognized
by the Secretary of the Interior as being Indian or any individual or group
of individuals that is recognized by the Secretary of the Interior or the
Secretary of Health and Human Services. The Secretary of Health and Human
Services in making determinations may take into account the determination
of the tribe with which affiliation is claimed.
Indian firm means a sole
enterprise, partnership, corporation, or other type of business organization
owned, controlled, and operated by one or more Indians (including, for the
purpose of sections 301 and 302 of Public Law 94-437, former or currently
federally recognized Indian tribes in the State of New York) or by an Indian
firm; or a nonprofit firm organized for the benefit of Indians and controlled
by Indians (see 370.503(a)).
Product of Indian industry
means anything produced by Indians through physical labor or by intellectual
effort involving the use and application of skills by them.
370.503 Requirements.
(a) Indian ownership. The
degree of Indian ownership of an Indian firm shall be at least 51 percent
during the period covered by a Buy Indian contract.
(b) Joint ventures. An Indian
firm may enter into a joint venture with other entities for specific projects
as long as the Indian firm is the managing partner. However, the joint venture
must be approved by the contracting officer prior to the award of a contract
under the Buy Indian Act.
(c) Bonds. In the case of
contracts for the construction, alteration, or repair of public buildings
or public works, performance and payment bonds are required by the Miller
Act (40 U.S.C. 270a-270f) and FAR part 28. In the case of contracts with
Indian tribes or public nonprofit organizations serving as governmental
instrumentalities of an Indian tribe, bonds are not required. However, bonds
are required when dealing with private business entities which are owned
by an Indian tribe or members of an Indian tribe. Bonds may be required
of private business entities which are joint ventures with, or subcontractors
of, an Indian tribe or a public nonprofit organization serving as a governmental
instrumentality of an Indian tribe. A bid guarantee or bid bond is required
only when a performance or payment bond is required.
(d) Indian preference in
employment, training and subcontracting. Contracts awarded under the Buy
Indian Act are subject to the requirements of section 7(b) of the Indian
Self-Determination and Education Assistance Act 25 U.S.C. 450e, which requires
that preference be given to Indians in employment, training, and subcontracting.
The Indian Preference clause set forth in 352.270-2 shall be included in
all Buy Indian solicitations and resultant contracts. The Indian Preference
Program clause set forth in 352.270-3 shall be used as specified in 370.202(b).
All requirements set forth in subpart 370.2 which are applicable to the
instant Buy Indian acquisition shall be followed by the contracting officer,
e.g., sections 370.204 and 370.205.
(e) Subcontracting. Not
more than 50 percent of the work to be performed under a prime contract
awarded pursuant to the Buy Indian Act shall be subcontracted to other than
Indian firms. For this purpose, work to be performed does not include the
provision of materials, supplies, or equipment.
(f) Wage rates. A determination
of the minimum wage rates by the Secretary of Labor as required by the Davis-Bacon
Act (40 U.S.C. 276a) shall be included in all contracts awarded under the
Buy Indian Act for over $2,000 for construction, alteration, or repair,
including painting and decorating, of public buildings and public works,
[[Page 4266]]
except contracts with Indian tribes or public nonprofit organizations serving
as governmental instrumentalities of an Indian tribe. The wage rate determination
is to be included in contracts with private business entities even if they
are owned by an Indian tribe or a member of an Indian tribe and in connection
with joint ventures with, or subcontractors of, an Indian tribe or a public
nonprofit organization serving as a governmental instrumentality of an Indian
tribe.
370.504 Competition.
(a) Contracts to be awarded
under the Buy Indian Act shall be subject to competition among Indians or
Indian concerns to the maximum extent that competition is determined by
the contracting officer to be practicable. When competition is determined
not to be practicable, a Justification for Other than Full and Open Competition
shall be prepared in accordance with 306.303 and subsequently retained in
the contract file.
(b) Solicitations must be
synopsized and publicized in the Commerce Business Daily and copies of the
synopses sent to the tribal office of the Indian tribal government directly
concerned with the proposed acquisition as well as to Indian concerns and
others having a legitimate interest. The synopsis should state that the
acquisition is restricted to Indian firms under the Buy Indian Act.
370.505 Responsibility determinations.
(a) A contract may be awarded
under the Buy Indian Act only if it is first determined that the project
or function to be contracted for is likely to be satisfactorily performed
under that contract and the project or function is likely to be properly
completed or maintained under that contract.
(b) The determination called
for by paragraph (a) of this section, to be made prior to the award of a
contract, will be made in writing by the contracting officer reflecting
an analysis of the standards set forth in FAR 9.104-1.
[FR Doc. 01-21 Filed 1-16-01; 8:45 am]
BILLING CODE 4150-24-P
Last revised: June 22, 2004
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