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(d) Instructions and procedures which § 3-1.107 Arrangement. are necessary to implement and supple

§ 3-1.107-1

General plan. ment the FPR and the HEWPR will be issued by the heads of operating agencies The HEWPR conform with the FPR and staff offices or their designees.

with respect to divisional arrangement

into parts, subparts, sections, subsec§ 3-1.104 Applicability.

tions, and further subdivisions as necesThe FPR and HEWPR apply to all

sary. procurements of personal property and

§ 3-1.107–2 Numbering. nonpersonal services (including construction) by HEW. Unless specified (a) Material in the HEWPR which otherwise, these regulations apply to pro- implements or deviates from related macurements within and outside the United terial in the FPR is captioned and numStates.

bered to correspond with such material

in the FPR, except that while the first § 3-1.105 Method of issuance.

digit of the FPR number is 1, the first All HEWPR material deemed necessary digit of the HEWPR number is 3. Mafor the general public to understand terial in the HEWPR which supplements basic and significant HEW procurement the FPR will be assigned numbers 50 policies and procedures will be published through 89 at the parts, subparts, secin the FEDERAL REGISTER as Chapter 3 of

tions, or subsections for which there is no Title 41, Code of Federal Regulations. counterpart material in the FPR. Where These basic, plus more detailed, policies material in the FPR requires no impleand procedures will be published in the

mentation or deviation, there is no corHEWPR Manual for use by Depart- responding number in the HEWPR. mental procuring activities and program Thus, there are gaps in the HEWPR offices. Copies of such manual material sequence of numbers where the FPR, as will be made available to the general written, are applicable to HEW procurepublic upon request.

ment. § 3-1.106 Exclusions.

(b) Material issued by operating agen

cies and staff offices of HEW to comple(a) Certain HEW policies and pro

ment the HEWPR will be identified by cedures which come within the scope of

prefixes to the digit 3 part, subpart, secthe HEWPR may be excluded therefrom

tion, and subsection. The following are when there is justification therefor.

the assigned prefixes: These exclusions may include the following categories:

Organization

Prefix (1) Subject matter which bears a se

Department of HEW-.

(None) curity classification.

Office of Secretary (Head- OS: (2) Policies or procedures which are quarters). expected to be effective for a period of Office of Field Administra- OFA: less than six months.

tion. (3) Policies or procedures which are

Individual Regional Office.. (Roman No.)

Public Health Service--- PHS: effective on an experimental basis for a

Office of the Surgeon Gen- OSG: reasonable period.

eral. (4) Policies and procedures pertaining Bureau of Medical Services. BMS: to other functions of HEW as well as to Bureau of State Services.-- BSS: procurement functions and there is need National Institutes of NIH: to make the issuance available simul

Health. taneously to all interested HEW em- National Library of Medi- NLM:

cine. ployees.

Office of Education--

OE: (5) Speed of issuance is essential, numerous changes are required in the

Social Security Administra- SSA: HEWPR, and the necessary changes must tion. be made at a later date.

Bureau of Hearings and HA: (b) Procurement policies, procedures,

Appeals.

Bureau of Federal Credit FCU: and instructions issued in other than

Unions. FPR System format under paragraphs

Food and Drug Administra- FDA: (a) (4) and (5) of this section will be

tion. published in the HEWPR at the earliest

Vocational Rehabilitation VRA: practicable date.

Administration.

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Saint Elizabeths Hospital.---- SEH:

Subpart 3-1.6-Debarred, SusWelfare Administration.--- WA:

pended, and ineligible Bidders Bureau of Family Services-- FS: Children's Bureau...

CB:

SOURCE: The provisions of this Subpart 3–

1.6 appear at 30 F.R. 3218, Mar. 9, 1965, un§ 3-1.107–3 Citation.

less otherwise noted. The HEWPR will be cited in the § 3-1.600 Scope of subpart. same manner as the FPR are cited. Thus, this section, in referring to divi

This subpart prescribes the HEW essions of the FPR System, should be cited

tablishment, use and maintenance of a as "section 3–1.107-3 of chapter 3."

debarred, suspended, and ineligible bidWhen the Official Code of Federal Regu

ders list, and procedures for debarring lations citation is used, this section

or suspending bidders for cause. should be cited as “41 CFR 3-1.107-3."

§ 3-1.602 Establishment and mainteAny section of the HEWPR may be

nance of a list of concerns or indiidentified informally, for purposes of viduals debarred, suspended, or debrevity, as “HEWPR” followed by the clared ineligible. section number, such as, HEWPR

(a) The Director of General Services 3-1.107–3."

will establish and maintain a consoli§ 3-1.108 Deviations.

dated list of concerns and individuals In the interest of establishing and

to whom contracts will not be awarded, maintaining uniformity to the greatest

and from whom bids or proposals will

not be solicited, as provided in FPR extent feasible, deviations from the FPR

1-1.603. This list will be designated as and the HEWPR shall be kept to a min

the “Debarred, Suspended, and Ineligible imum and controlled as follows:

Bidders List.” (a) Requests for deviations shall set

(c) The "Debarred, Suspended, and forth clearly the nature of the required deviations and the circumstances war

Ineligible Bidders List” will be marked

For Official Use Only” to prevent inranting them.

spection of its contents by other than (b) Heads of operating agencies and staff offices or their designees may ap

Departmental personnel required to have

access thereto. prove one-time deviation requests which

(d) The “Debarred, Suspended, and originate in their respective organiza

Ineligible Bidders List” will be kept curtions, and a copy of the deviation re

rent by means of revisions. quest and approval will be placed in the contract file. A copy of each approved § 3-1.602–1 Bases for entry on the dedeviation, also, shall be forwarded to barred, suspended, and ineligible list. the Procurement and Supply Manage- (d) The Director of General Services, ment Branch, Division of General Sery

OS-OA, makes the administrative debarices, Office of Administration. That

ment determinations prescribed by FPR Branch will review deviations periodi- 1-1.602-1(d). cally for the purpose of either changing (e) The Department Contract Comthe HEWPR or recommending changes pliance Officer directs that action prein the FPR.

scribed by FPR 1-1.602–1(e) be taken. (C) Where deviations from the FPR

(f) The Director of General Services, . in classes of cases are considered neces- OS-OA, makes the administrative sussary, requests for authority to deviate pension determinations prescribed by shall be submitted through administra- FPR 1-1.602-1(f). tive channels to the Chief, Procurement (g) The Director of General Services, and Supply Management Branch, Divi- OS-OA, makes the determinations presion of General Services, Office of Ad- scribed in FPR 1-1.602–1(g) regarding ministration, who will consider the sub- failure to comply with the provisions of mission jointly with the General Services section 3(a) of the Buy American Act Administration (GSA). Where circum- (41 U.S.C. 10b(a)). stances preclude the obtaining of prior

§ 3-1.603 Treatment concurrence of GSA, the Director of

to be accorded General Services may authorize a devia

firms or individuals in debarred, tion. In such an instance, the Chief,

suspended, or ineligible status. Procurement and Supply Management (a) Total restrictions. The Director Branch shall inform the GSA of the de- of General Services, OS-OA, makes the viation and the circumstances under essential public interest determinations which is was required.

.required by FPR 1-1.603(a).

51-079 0-66-5

If

(d) Ineligibility restrictions of the or individual to appear, with witnesses Walsh Healey Act. At their discretion, and counsel, to present facts or circumcontracting officers may solicit bids or stances showing cause why such firm or proposals and award contracts in the individual should not be debarred. circumstances permitted by FPR 1-1.603 the firm or individual elects not to ap(d).

pear, the reviewing authority will make (f) Restrictions on subcontracting. its decision based on the facts on record The Director of General Services, OA- and such additional evidence as may be GS, makes the determinations required furnished by the parties involved. After by FPR 1-1.603(f).

consideration of the facts, the reviewing § 3-1.604 Causes and conditions appli

authority shall notify the firm or indicable to determination of debarment

vidual of the final decision. by an executive agency.

§ 3-1.605 Suspension of bidders. Any contracting officer may recom- § 3-1.605–1 Causes and conditions mend initiation of debarment actions.

under which HEW may suspend conThese recommendations shall be sub

tractors. mitted through administrative channels

Any HEW contracting officer may to the Director of General Services, OSOA. They shall be accompanied by the

recommend suspension of bidders for the documented file in the case.

causes and conditions set forth, in FPR 1-1.605–1. These recommendations shall

be accompanied by the documented file § 3-1.604-1 Procedural requirements in the case and be submitted through adrelating to the imposition of debar

ministrative channels to the Director of ment.

General Services, OS-OA. (a) Initiation of debarment action.

§ 3-1.605–2 Period and scope of susThe Chief, Procurement and Supply

pension. Management Branch, after consultation with the Office of General Counsel, shall

The Director of General Services, OSdetermine whether the facts are suf

OA, or his designee, may authorize the ficient to warrant debarment. If the

suspension of bidders for a period not to decision is not to debar, the contracting

exceed 12 months. The Director may exofficer recommending the action will be tend the suspension for a period not to notified. If the Chief, Procurement and

exceed 6 months upon the request of an Supply Management Branch, decides to Assistant Attorney General. institute debarment proceedings, he shall § 3-1.605–3 Restrictions during period send a letter by certified mail (return

of suspension. receipt requested) to the firm or individ

The Director of General Services, OSual proposed for debarment. The letter

OA, or his designee, shall determine shall (1) state that debarment is being

when award of contracts is to be made to considered, (2) set forth the reasons for

suspended bidders as authorized by FPR the proposed debarment, and (3) state

1-1.605–3. that such party will be accorded an opportunity for a hearing if a request for § 3-1.605–4 Notice of suspension. a hearing is received within 30 days from

The Director of General Services, OSthe date of receipt of such letter.

OA, or his designee, is responsible for (b) Hearings. Hearings requested in

notifying bidders of suspensions as reconnection with debarment proceedings

quired by FPR 1-1.605-4. shall be conducted before the Director, Division of General Services, OS-OA, or § 3-1.606 Agency procedure. his designee, referred to in this HEWPR

The Director of General Services, OS3-1.604-1 as the reviewing authority. An

OA, is responsible for complying with the opportunity shall be afforded to the firm

provisions of FPR 1-1.606.

PART 3–60—CONTRACT APPEALS

Sec. 3-60.000 Scope of part. Subpart 3–60.1—Board of Review Establishment

and Functions 3-60.101 Scope of subpart. 3-60.102 Determination of appeals. 3-60.103 Establishment and membership

of the Board. 3-60.104 Functions of the Board.

Subpart 3–60.2—Appeal Procedures 3-60.201 Scope of subpart. 3-60.202 Filing of notice of appeal. 3-60.203 Form and content of notice of

appeal. 3-60.204 Duties of the contracting officer. 3-60.205 Acknowledgment of notice of

appeal. 3-60.206 Appeal file. 3-60.207 Optional procedure for appeals

involving amounts not in ex

cess of $5,000. 3-60.208 Submission without a hearing. 3-60.209 Settlement. 3-60.210 Prehearing conference. 3-60.211 Hearings. 3-60.211-1 Notice and where held. 3-60.211–2 Representation. 3-60.211-3 Absence of parties. 3-60.211-4 Nature of hearings. 3-60.211-5 Examination of witnesses. 3-60.211-6 Copies of documents. 3-60.211-7 Post-hearing briefs. 3–60.211-8 Transcript of proceedings. 3-60.211-9 Withdrawal of exhibits. 3-60.212 Submission of additional infor

mation at Board's request. 3-60.213 Findings, recommendations, and

decision. AUTHORITY: The provisions of this Part 3-60 issued under 5 U.S.C. 22; Reorgan. Plan No. 1 of 1953 (5 U.S.C. 623).

SOURCE: The provisions of this part 3–60 appear at 30 F.R. 1847, Feb. 10, 1965, unless otherwise noted.

§ 3-60.102 Determination of appeals.

Determination of appeals from decisions of contracting officers are made by the Assistant Secretary of Health, Education, and Welfare for Administration (hereinafter referred to as the “Assistant Secretary") after receipt of findings and recommendations by a Board of Review (hereinafter referred to as the "Board”). § 3–60.103 Establishment and member

ship of the Board. Boards are established on a case by case basis by the Assistant Secretary and are comprised of a Chairman and two members. At least one of the members shall be either an attorney in the Office of General Counsel or a qualified hearing examiner. No person shall be designated a member of the Board if he has participated in or has any interest, direct or indirect, in the letting or administering of the contract in dispute. $ 3–60.104 Functions of the Board.

(a) The Board performs the following functions with respect to contract appeals:

(1) Informs the appellant that the Board of Review has been established to consider the appeal.

(2) Schedules prompt consideration of the appeal.

(3) Conducts hearings at the request of either party or in its own discretion, or considers the appeal without a hearing in accordance with the provisions of § 3-60.208.

(4) Submits findings and recommendations to the Assistant Secretary for his action.

(5) Performs such other functions as the Assistant Secretary may require.

(b) The Board may in its discretion hear, consider, and make findings and recommendations on all questions which are deemed necessary for the complete adjudication of the issue or issues involved in the appeal, including questions of law. Subpart 3–60.2—Appeal Procedures § 3–60.201 Scope of subpart.

This subpart sets forth the procedures governing the filing and disposition of an appeal.

§ 3–60.000 Scope of part.

This part establishes policies and procedures regarding appeals from decisions of contracting officers filed pursuant to “Disputes" clauses of contracts. Subpart 3–60.1-Board of Review

Establishment and Functions § 3–60.101 Scope of subpart.

This subpart describes the establishment, membership, and functions of the Board of Review.

§ 3-60.202 Filing of notice of appeal. receipt thereof to the appellant, and Notice of an appeal must be in writing,

transmit a copy of such acknowledgment

to counsel for the Government (Assistant signed personally by the appellant (the

General Counsel, Division of Business contractor making the appeal), or by an officer of the appellant corporation or

and Administrative Law). If the appeal member of the appellant firm, or by the

involves an amount in excess of $5,000, appellant's duly authorized representa

the acknowledgment letter shall request tive or attorney. The notice should be

the appellant to advise the Chief, PSMB, addressed to the Secretary of Health,

whether he wishes to have an oral hearEducation, and Welfare, and be mailed

ing on his appeal or have his appeal conor otherwise furnished to the contracting

sidered on the basis of the appeal file and officer from whose decision the appeal

any other material submitted pursuant is taken. However, where addressed to

to § 3-60.208. If the appeal involves an the contracting officer or to the head of

amount not in excess of $5,000, the acthe Departmental operating agency in

knowledgment letter shall invite the apvolved in the dispute, the appeal will

pellant's attention to § 3–60.207. A copy be considered as though it had been ad

of these HEW Contract Appeal Reguladressed to the Secretary. The notice of

tions shall be enclosed in the acknowledgappeal must be mailed or otherwise filed

ment letter. within the time specified in the contract. $ 3-60.206 Appeal file. § 3–60.203 Form and content of notice (a) After the Board has been desigof appeal.

nated in accordance with the provisions The notice of appeal should indicate

of $ 3-60.103, the Chief, PSMB, shall that an appeal is intended and should

transmit the appeal file to the Board include the following information:

Chairman. The appeal file shall consist (a) Identification (number) of the

of the original or copies of all documents contract involved.

pertinent to the appeal, including the (b) The decision from which the ap

following: peal is taken.

(1) The notice of appeal. (c) The portion or portions of the

(2) The findings of fact or decision findings of fact or decision from which

from which the appeal is taken. the appeal is taken, and the reasons why

(3) The invitation for bids or prothe findings or decision are deemed er

posals, the contract, pertinent plans and roneous.

specifications, amendments, and change (d) The relief sought by the appellant.

orders.

(4) Correspondence between the par$ 3–60.204 Duties of the contracting ties relating to the dispute. officer.

(5) Transcripts of any testimony Upon receipt of the notice of appeal, taken in connection with the dispute the contracting officer shall forward, prior to the filing of the appeal, and affithrough appropriate administrative davits or statements of any witnesses channels, such notice to the Chief, Pro- that were considered by the contracting curement and Supply Management officer in reaching his decision. Branch, Division of General Services, Of- (6) Any additional data that the confice of Administration, Office of the Sec- tracting officer may consider pertinent. retary (hereinafter referred to as the (b) Upon receipt of the appeal file, the “Chief, PSMB”), together with the ap

Board Chairman shall provide the appeal file consisting of the documents pellant and counsel for the Government specified in § 3-60.206, and a list of the with a listing of appeal file contents, and documents included in the appeal file. shall notify the parties where the file may The contracting officer shall retain a be examined. Each party may furnish duplicate copy of the appeal file.

suggest additional documentation

deemed pertinent to the appeal. The ap§ 3–60.205 Acknowledgment of notice of appeal.

peal file shall be available for examina

tion by the parties or their counsel or After the Chief, PSMB, has received representatives at the office of the Board the notice of appeal from the contracting Chairman, or at the office of the conofficer, he shall promptly acknowledge tracting officer.

or

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