2010-9382. Health and Human Services Acquisition Regulation; Corrections

AGENCY:

Department of Health and Human Services.

ACTION:

Correcting amendments.

SUMMARY:

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

DATES:

These corrections are effective on April 26, 2010.

FOR FURTHER INFORMATION CONTACT:

Cheryl Howe, Procurement Analyst, U.S. Department of Health and Human Services, Office of the Assistant Secretary for Financial Resources, Office of Grants and Acquisition Policy and Accountability, Division of Acquisition, 202-690-5552 (voice); [e-mail] (e-mail); 202-690-8772 (facsimile).

SUPPLEMENTARY INFORMATION:

I. Background

HHS published a revision of the entire HHSAR (48 CFR parts 301 through 370) in the Federal Register on November 27, 2009 to reflect changes since the last revision was published in the Federal Register in December 2006. No adverse comments were received.

The revisions included, but were not limited to, the following:

A. Revising Subpart 301.6 regarding training and certification of acquisition officials to implement federal acquisition certification programs.

B. Adding a new Subpart 304.13 to implement Homeland Security Presidential Directive—12.

C. Adding a new Subpart 315.70 regarding acquisition of electronic information technology (EIT) products and services to implement the requirements of Section 508 of the Rehabilitation Act of 1973 [29 U.S.C. 794(d)], as amended by the Workforce Improvement Act of 1998.

D. Adding a new Subpart 317.1 to implement FAR coverage on multi-year contracting and amending Subpart 332.7 to address awards made during a continuing resolution.

E. Adding a new Subpart 334.2 to implement FAR coverage on earned value management (EVM).

The final rule, which became effective on January 26, 2010, contained some minor errors, inconsistencies and omissions which this document corrects. Those technical corrections are set forth below. The corrections to the affected sections are merely procedural in nature and propose no substantive changes on which public comment could be solicited. HHS therefore finds that prior notice and opportunity for comment on these corrections are unnecessary pursuant to 5 U.S.C. 553(b)(3)(A) and that good cause exists for these corrections to be exempt from the 30-day delayed effective date requirement of 5 U.S.C. 553(d).

II. Summary of Changes

The following summarizes the corrections set forth in this notice.

A. HHS has changed multiple organizational titles to reflect recent reorganizations within the Office of the Secretary.

B. HHS has resolved minor inconsistencies regarding Project Officer and Contracting Officer's Technical Representative (COTR) training and clarified the training requirements for technical evaluation panels.

C. HHS has clarified requirements related to (1) use of multi-year contracting, (2) use of options under multi-year contracts, and (3) preparation of a “determination and findings” for an assisted contract.

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

• Government procurement

Accordingly, 48 CFR parts 301, 302, 303, 304, 305, 306, 307, 315, 316, 317, 319, 324, 332, 352, and 370 are corrected by making the following amendments:

1. The authority citation for 48 CFR parts 301, 302, 303, 304, 305, 306, 307, 315, 316, 317, 319, 324, 332, 352, and 370 continues to read as follows:

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

PART 301—HHS ACQUISITION REGULATION SYSTEM

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

301.101

Purpose.

(a) The Department of Health and Human Services (HHS) Acquisition Regulation (HHSAR) establishes uniform HHS acquisition policies and procedures that conform to the Federal Acquisition Regulations (FAR) System.

* * * * *

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

301.270

Executive Committee for Acquisition.

* * * * *

(b) * * *

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

* * * * *

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

301.603-73

Additional HHS training requirements.

* * * * *

(e) Section 508 training. When the HHS Office on Disability (OD) so requires, all GS-1102s, GS-1105s and GS-1106s who award or administer acquisitions that involve electronic information technology (EIT) products or services (subject to Section 508 of the Rehabilitation Act of 1973 and pertinent HHSAR provisions), must complete all applicable OD sponsored training. For information on frequency, timing, and duration of the training requirement, personnel shall consult with the HHS OD.

* * * * *

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

301.604-70

General.

In accordance with the Federal Acquisition Certification for Contracting Officers' Technical Representatives (FAC-COTR) program, HHS has established a training program for certification and designation of personnel as COTRs—see HHS' Federal Acquisition Certification for Contracting Officers' Technical Representatives Program Handbook (COTR Handbook), dated January 2009, for information on the methods for earning FAC-COTR certification. * * *

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

301.604-72

Requirements for certification maintenance.

Maintaining HHS FAC-COTR certification requires at least 40 relevant CLPs every 2 years. See Appendix A of OFPP's FAC-COTR memorandum, dated November 26, 2007, and HHS' COTR Handbook for information on CLPs.

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

301.604-74

Additional COTR training requirements.

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

(b) Training policy exceptions.

(1) EVM training. In the event that there is an urgent requirement for a COTR to administer a contract to which EVM will be applied, and the individual has not yet met the EVM training requirement, the HCA (non-delegable) may authorize the individual to perform the position duties, provided that the individual meets the training requirement within 9 months from the date of assignment to the contract. If the individual does not complete the training requirement within 9 months, the HCA's approval for the individual's assignment to the contract will automatically terminate on that date. In addition, during any extension period, the COTR must work under the direction of a COTR, or Program/Project Manager who has taken an EVM course.

(2) Other additional HHS training. The HCA (non-delegable) may grant a time extension of up to 9 months to a COTR to complete the PBA, Federal appropriations law, and green purchasing training requirements, including completion of refresher training. If the individual does not complete the training requirement within the extension period, the HCA's approval will automatically terminate on that date.

8. In section 301.606-71, the last sentence is revised to read as follows:

301.606-71

Project Officer training.

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

301.606-73 and 301.606-74

[Redesignated as 301.606-74 and 301.606-75]

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

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

301.606-73

Requirements for continuous learning maintenance.

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

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

301.606-75

Additional Project Officer training requirements.

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

(b) Training policy exceptions.

(1) EVM training. In the event that there is an urgent requirement to assign a Project Officer to a contract project to which EVM will be applied, and the individual has not yet met the EVM training requirement, the HCA (non-delegable) may authorize the individual to perform the position duties, provided that the individual meets the training requirement within 3 months from the date of submission of the AP or other acquisition request documentation to the contracting office. If the individual does not complete the training requirement within the extension period, the HCA's approval for the individual's assignment to the project will automatically terminate on that date. In addition, during any extension period, the Project Officer must work under the direction of a Project Officer, COTR, or Program/Project Manager who has taken an EVM course.

(2) Other additional HHS training. The HCA (non-delegable) may grant a time extension of up to 9 months to a Project Officer to complete the PBA, Federal appropriations law, and green purchasing training requirements, including completion of refresher training. If the individual does not complete the training requirement within the extension period, the HCA's approval will automatically terminate on that date.

301.607-77

[Removed]

12. Remove section 301.607-77.

301.607-78 and 301.607-79

[Redesignated as 301.607-77 and 301.607-78]

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

PART 302—DEFINITIONS OF WORDS AND TERMS

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

302.101

Definitions.

* * * * *

(d) * * *

(1) The HHS HCAs are as follows:

AHRQ: Director, Division of Contracts Management.

ASPR: Director, Office of Acquisitions Management, Contracts and Grants.

CDC: Director, Procurement and Grants Office.

CMS: Director, Office of Acquisition and Grants Management.

FDA: Director, Office of Acquisitions and Grant Services.

HRSA: Director, Office of Acquisition Management and Policy.

IHS: Director, Division of Acquisition Policy.

NIH: Director, Office of Acquisition and Logistics Management.

PSC: Director, Strategic Acquisition Service.

SAMHSA: Director, Division of Contracts Management.

* * * * *

(e) Program Manager is a federal employee whom an OPDIV official or designee one level above the head of the sponsoring program office has designated in writing to act as a Program Manager for a group of related major or non-major IT or construction capital investments—see HHS' P/PM Handbook. * * *

(f) Project Manager is a federal employee whom a head of the sponsoring program office (Program Manager) or designee has designated in writing to act as a Project Manager for a major or non-major IT or construction capital investment—see HHS' P/PM Handbook. * * *

* * * * *

302.7000

[Amended]

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

PART 303—IMPROPER BUSINESS PRACTICIES AND PERSONAL CONFLICTS OF INTEREST

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

303.1003

Requirements.

* * * * *

(b) * * *

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

* * * * *

PART 304—ADMINISTRATIVE MATTERS

304.7001

[Amended]

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

PART 305—PUBLICIZING CONTRACT ACTIONS

18. Section 305.303 is revised to read as follows:

305.303

Announcement of contract awards.

(a) Public Announcement. The Contracting Officer shall report awards over $3.5 million, not otherwise exempt under FAR 5.303, to the Office of the Assistant Secretary for Legislation (OASL) (Congressional Liaison). The Contracting Officer shall e-mail a copy of the contract or award document face page to [e-mail] prior to the day of award or in sufficient time to allow OASL to make an announcement by 5 p.m. Washington, DC time on the day of award.

PART 306—COMPETITION REQUIREMENTS

306.501

[Amended]

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

PART 307—ACQUISITION PLANNING

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

307.7101

Policy.

* * * * *

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

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

307.7102

Content.

* * * * *

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

* * * * *

PART 315—CONTRACTING BY NEGOTIATION

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

315.305

Proposal evaluation.

(a) * * *

(3) * * *

(ii) * * *

(A) * * *

(3) At least 50 percent of the HHS personnel on a technical evaluation panel shall have successfully completed HHS University's “Basic Contracting Officer's Technical Representative” course or an equivalent course within 4 years before assuming their designated role. This training requirement applies to evaluators performing the initial technical evaluation and any subsequent technical evaluations, but does not apply to peer review panel members. The Contracting Officer may waive this training requirement in exigent circumstances if documented in writing and approved by the Head of Contracting Activity.

* * * * *

(v) * * * The evaluators may then discuss in detail the individual strengths and weaknesses described by each evaluator and, if possible, arrive at a common understanding of the major strengths and weaknesses and the potential for correcting each offeror's weakness(es). * * *

* * * * *

PART 316—TYPES OF CONTRACTS

316.505

[Amended]

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

PART 317—SPECIAL CONTRACTING METHODS

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

317.105-1

Uses.

(a) Each HCA determination to use multi-year contracting, as defined in FAR 17.103, is limited to individual acquisitions where the full estimated cancellation ceiling does not exceed 20 percent of the total contract value over the multi-year term or $11.5 million, whichever is less. * * *

(1) The amount of, and basis for, the estimated cancellation ceiling.

* * * * *

(b) (1) SPE approval is required for any—

(i) Individual determination to use multi-year contracting with a cancellation ceiling in excess of the limits in 317.105-1(a); or

(ii) Class determination (see FAR Subpart 1.7).

(2) A determination involving a cancellation ceiling in excess of the limits in 317.105-1(a) shall present a compelling justification for the estimated cancellation ceiling. When the estimated cancellation ceiling exceeds $11.5 million, the determination shall be accompanied by a draft congressional notification letter pursuant to FAR 17.108 and 317.108.

(c) The funding required for performance of each year of a multi-year contract under FAR Subpart 17.1 and this subpart must be provided in full at the start of that program year.

25. Section 317.107 is revised to read as follows:

317.107

Options.

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

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

317.503

Determination and findings requirements.

(a) * * *

(6) The recommended multi-agency or intra-agency contracting approach;

(7) The conclusion that the contract to be awarded by the selected servicing organization is the most advantageous alternative to the Government, notwithstanding fees and the increased risk associated with assisted contracting; and

(8) The steps that will be taken to ensure that contract funding will comply with the bona fide needs rule and the Anti-Deficiency Act.

PART 319—SMALL BUSINESS PROGRAMS

319.201

[Amended]

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

PART 324—PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

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

324.102

General.

* * * * *

(f) Whenever a Contracting Officer is informed that the Privacy Act is not applicable, but the resultant contract will involve the collection of individually identifiable personal data by the contractor, the Contracting Officer shall include provisions to protect the confidentiality of the records and the privacy of individuals identified in the records.

PART 332—CONTRACT FINANCING

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

332.703-70

Funding contracts during a continuing resolution.

* * * * *

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

* * * * *

PART 352—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

352.219-70

[Amended]

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

352.219-71

[Amended]

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

352.222-70

[Amended]

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

352.231-70

[Amended]

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

352.233-70

[Amended]

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

352.239-70

[Amended]

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

352.239-71

[Amended]

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

352.239-72

[Amended]

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

352.239-73

[Amended]

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

352.270-7

[Amended]

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

352.270-8

[Amended]

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

352.270-9

[Amended]

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

PART 370—SPECIAL PROGRAMS AFFECTING ACQUISITION

42. Section 370.400 is revised to read as follows:

370.400

Scope of subpart.

This subpart applies to all R & D, research training, biological testing, housing and maintenance, and other activities involving live vertebrate animals conducted under contract (see Public Health Service Policy on Humane Care and Use of Laboratory Animals (PHS Policy), Rev. 1986, Repr. 1996).

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

370.403

Notice to offerors.

(a) The Contracting Officer shall insert the provision in 352.270-5(a), Notice to Offerors of Requirement for Compliance with the Public Health Service Policy on Humane Care and Use of Laboratory Animals, in solicitations that involve live vertebrate animals.

* * * * *

44. Section 370.404 is revised to read as follows:

370.404

Contract clause.

The Contracting Officer shall insert the clause in 352.270-5(b), Care of Live Vertebrate Animals, in solicitations, contracts, and orders that involve live vertebrate animals.

Dated: April 15, 2010.

Ellen G. Murray,

Assistant Secretary for Financial Resources.