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(d) Number of contracts without subcontracting plans;

(e) Small and small disadvantaged business subcontracting goals; and

(f) Statements citing reasons why small and small disadvantaged business subcontracting plans were not included in the contracts.

319.706 Responsibilities of the cog

nizant administrative contracting

officer. (a) The contracting officer shall comply with the requirements of FAR 19.706(a), and shall use the Standard Form 294, Subcontracting Report for Individual Contracts, to monitor the contractor's progress in achieving both the small business and small disadvantaged business subcontracting goals. The contracting officer shall require the contractor to provide in the Remarks block of each Standard Form 294 submitted a narrative of the progress in fulfilling the small business and small disadvantaged business subcontracting goals. The contracting officer shall require the contractor to report any difficulties in achieving the goals and the actions being taken by the contractor to overcome the difficulties. The contracting officer shall document the contract file whenever the contractor is experiencing difficulties in achieving the planned subcontracting goals, and shall indicate the actions taken by the contractor to resolve the difficulties and the actions taken by the contracting officer to remedy the situation. A copy of this documentation shall be provided to the SADBUS.

(b) At the time of physical completion of the contract, the contracting officer shall prepare a memorandum for record for inclusion in the contract file indicating whether or not the contractor complied with the subcontracting plan and subcontracting provisions of the contract.

(1) If the contractor achieved its subcontracting dollar goals for both small business and small disadvantaged business, the memorandum shall state that the contractor complied with the subcontracting plan and provisions of the contract. No other documentation is needed.

(2) If the contractor failed to achieve its subcontracting dollar goals for either small business or small disadvantaged business, or both, the contracting officer shall indicate this failure in the memorandum and determine whether the contractor did or did not exercise its best efforts in attempting to achieve the goals.

(i) If determined that the contractor exercised its best efforts, the contractor shall be found to have complied with the subcontracting plan and provisions of the contract. The rationale for this determination shall be documented in the memorandum.

(ii) If determined that the contractor did not exercise its best efforts, the contractor shall be found to have not complied with the subcontracting plan and provisions of the contract. The reasons for this determination shall be documented in the memorandum, along with a description of specific actions taken by the contracting officer during the performance of the contracting to attempt to remedy the failure.

(c) A copy of the memorandum pertaining to either situation described in paragraph (b)(2) (i) or (ii) of this section shall be sent to the Director, Office of Small and Disadvantaged Business Utilization.

[50 FR 46299, Nov. 7, 1985]

Subpart 319.8—Contracting with

the Small Business Administration (the 8(a) Program)

SOURCE: 55 FR 13536, Apr. 11, 1990, unless otherwise noted.

319.800 General.

(c) The signing of the contract document may be accepted as the Small Business Administration's (SBA) certification that SBA is competent to perform a specific HHS requirement.

319.803 Selecting acquisitions for the

8(a) Program. (c) Brochures of 8(a) concerns which have been interviewed by the Office of Small and Disadvantaged Business Utilization (OSDBU) are forwarded to each

[blocks in formation]

320.102 General policy.

Contracting activities should obtain appropriate publications and other information identifying labor surplus areas from:

U.S. Department of Labor, Employment and Training Administration, Office of Policy Evaluation and Research, Division of Labor Market Information, Washington, D.C. 20530.

(b) The responsibility for subcontract administration and field inspection will, in most cases, be delegated by SBA to the contracting activity. The contracting activity may develop a tripartite agreement for execution by SBA, the 8(a) subcontractor, and the contracting activity instead of developing separate modifications for the SBA contract and the 8(a) subcontract.

(c) Some 8(a) concerns may need additional management expertise for optimal performance and completion of a particular contract. Therefore, when subcontract administration is delegated to HHS by SBA, the contracting activity shall promptly apprise the SBA, the SADBUS, and OSDBU whenever the contractor is experiencing problems. SBA should provide necessary technical assistance so the contractor can successfully complete the contract.

(d) The OSDBU, SADBUS, and SBA are to be notified prior to initiating final action to terminate an 8(a) contract.

Contracting officers shall use the “Directory of Labor Surplus Area Contractors,” provided by the Office of Small and Disadvantaged Business Utilization, as a source to identify labor surplus area concerns and to augment other labor surplus area source lists. Contracting officers should also seek to identify concerns from labor surplus areas by placing sources sought synopses in the Commerce Business Daily. Small and disadvantaged business utilization specialists shall assist contracting officers in developing and maintaining source lists of small business and other concerns in labor surplus areas. Department of Commerce and SBA regional and field offices should be contacted for assistance in identifying labor surplus area con

319.870 Liaison with the Small Busi

ness Administration.


[49 FR 14012, Apr. 9, 1984]



(a) Contracting activities will maintain a continuous liaison with the SBA to ensure that the overall goals of each activity are achieved. In the event there is a dispute between the contracting activity and a SBA representative regarding any aspect of 8(a) contracting, the contracting activity must promptly notify OSDBU.

(b) The business development responsibility of SBA requires them to assist in and monitor the growth and development of all 8(a) concerns. Therefore, it is incumbent upon HHS to assist SBA in this effort by utilizing the source selection process in a manner that would

Subpart 322.6—Walsh-Healey Public

Contracts Act

Sec. 322.604 Exemptions. 322.604–2 Regulatory exemptions.

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

Subpart 322.6—Walsh-Healey

Public Contracts Act

322.604 Exemptions.

322.604-2 Regulatory exemptions.

(c)(1) The actions required by FAR 22.604–2(c)(1) shall be exercised by the Director, Office of Acquisition and Grants Management (DOAGM). Contracting offices requiring exemptions shall forward requests through normal acquisition channels to the DOAGM.

[51 FR 44294, Dec. 9, 1986; 51 FR 47353, Dec. 31, 1986, as amended at 54 FR 24343, June 7, 1989)



Subpart 324. 1-Protection of Individual


quired to fulfill the Department's administrative and program responsibilities and its responsibilities for disclosing records to which the general public is entitled under the Freedom of Information Act (5 U.S.C. 552). The Privacy Act of 1974 and the Department's implementation under 45 CFR part 5b apply "when an agency provides by a contract for the operation by or on behalf of the agency of a system of records to accomplish any agency function ..." The key factor is whether a departmental function is involved. Therefore, the Privacy Act requirements apply to a departmental contract when, under the contract, the contractor must maintain or operate a system of records to accomplish a departmental function.

(e) The program official, and, as necessary, the official designated as the activity's Privacy Act Coordinator and the Office of General Counsel, shall determine the applicability of the Act to each proposed acquisition. The program official is required to include a statement in the request for contract indicating whether the Privacy Act is or is not applicable to the proposed acquisition.

(f) Whenever the contracting officer is informed that the Privacy Act is not applicable, but the resultant contract will involve the collection of individually identifiable personal data by the contractor, the contracting officer shall include provisions to protect the confidentiality of the records and the privacy of individuals identified in the records (see subpart 324.70).

Sec. 324.100 Scope of subpart. 324.102 General. 324.103 Procedures.

Subpart 324.2-Freedom of Information Act

324,202 Policy.

Subpart 324.70_Confidentiality of


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).

SOURCE: 49 FR 14013, Apr. 9, 1984, unless otherwise noted.

Subpart 324.1-Protection of

Individual Privacy

324.103 Procedures.

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 implement the Privacy Act of 1974 (Pub. L. 93-579, December 31, 1974; 5 U.S.C. 552a) and OMB Circular No. A-108, July 9, 1975.

(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

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 re

which results in the Privacy Act re- ficer may proceed with the acquisition quirements becoming applicable to a but shall not award the contract until contract.

the "system notice” is published, and (b)(1) The contracting officer shall

publication is verified by the contractidentify the system(s) of records on in

ing officer. dividuals in solicitations, contracts, and contract modifications to which

Subpart 324.2-Freedom of the Privacy Act and the implementing

Information Act regulations are applicable.

(2) The contracting officer shall include a statement in the contract noti

324.202 Policy. fying the contractor that the contrac- (a) The Department's regulation imtor and its employees are subject to plementing the Freedom of Informacriminal penalties for violations of the

tion Act (FOIA), 5 U.S.C. 552, as amendAct (5 U.S.C. 552a(i)) to the same ex

ed, is set forth in 45 CFR part 5. tent as employees of the Department.

(b) The contracting officer, upon reThe statement shall require that the

ceiving a FOIA request, shall follow contractor assure that each contractor

Department and operating division proemployee knows the prescribed rules of

cedures. As necessary, actions should conduct, and each contractor employee

be coordinated with the cognizant is aware that he/she can be subjected to

Freedom of Information (FOI) Officer criminal penalties for violations of the

and the Business and Administrative Act. The contracting officer shall provide the contractor with a copy of the

Law Division of the Office of General rules of conduct and other require

Counsel. The contracting officer must ments set forth in 45 CFR 5b.

remember that only the FOI Officer (c) The contracting officer shall in- has the authority to release or deny reclude in the contract the disposition to lease of records. While the contracting be made of the system(s) of records on officer should be familiar with the enindividuals upon completion of per- tire FOIA regulation in 45 CFR part 5, formance of the contract. For example, particular attention should be focused the contract may require the contrac- on sections 5.65 and 5.66; also of intertor to completely destroy the records,

est are sections 5.32, 5.33, and 5.35. to remove personal identifiers, to turn the records over to the Department, or

[54 FR 24343, June 7, 1989] to keep the records but take certain measures to keep the records confiden- Subpart 324.70—Confidentiality of tial and protect the individuals' pri

Information vacy.

(d) Whenever an acquisition is deter- 324.7001 General. mined to be subject to the Privacy Act requirements, a "system notice,” pre

In the performance of certain HHS pared by the program official and de

contracts, it is necessary for the conscribing the Department's intent to es

tractor to generate data, or be furtablish a new system of records on in

nished data by the Government, which dividuals, to make modifications to an

is about individuals, organizations, or existing system, or to disclose informa- Federal programs. This subpart and the tion in regard to an existing system, is accompanying contract clause require required to be published in the FED- contractors to prudently handle discloERAL REGISTER. A copy of the "system sure of certain types of information notice" shall be attached to the re- not subject to the Privacy Act or the quest for contract or purchase request. HHS human subject regulations set If a "system notice” is not attached,

forth in 45 CFR Part 46. This subpart the contracting officer shall inquire

and contract clause address the kinds about its status and shall obtain a copy

of data to be generated by the contracfrom the program official for inclusion

tor and/or data to be furnished by the in the contract file. If a “system no

Government that are considered contice” has not been published in the

fidential and how it should be treated. FEDERAL REGISTER, the contracting of

contract also involves confidential information, as described herein, which is not subject to the Privacy Act, the contract shall include the “Confidentiality of Information" clause in addition to the Privacy Act clause.

324.7002 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 such information. As a result, the “Confidentiality of Information" contract clause was developed.

324.7004 Required clause.

The clause set forth in 352.22470 shall be included in any RFP and resultant contract(s) where it has been determined that confidentiality of information provisions may apply. Any REP 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 such data.


Subpart 325.1—Buy American Act


Sec. 325.102 Policy. 325.108 Excepted articles, materials, and

supplies. 325.108–70 Formats for nonavailability de


Subpart 325.3-Balance of Payments


325.302 Policy.

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

324.7003 Applicability.

(a) The “Confidentiality of Information" clause, set forth in 352.24–70, should be used in solicitations and resultant contracts whenever the need exists to keep information confidential. Examples of situations where the clause may be appropriate include:

(1) Studies performed by the contractor which generate information or invlove 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 unvalidated 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

SOURCE: 49 FR 14015, Apr. 9, 1984, unless otherwise noted.

Subpart 325.1-Buy American


325.102 Policy.

(b) The head of the contracting activity shall make the determinations required by FAR 25.102(a) (1) through (5) and FAR 25.102(b).

(51 FR 44294, Dec. 9, 1986; 51 FR 47353, Dec. 31, 1986]

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. These determinations are required only in instances

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