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301.501_3 Exceptions.

(e) Comments will not be solicited from the public when the change or addition to the HHSAR or lower level acquisition regulation is deemed procedural in nature and concerns internal administrative directions aimed at departmental

personnel

(see FAR 1.301(b)). (49 FR 13961, Apr. 9, 1984, as amended at 49 FR 36110, Sept. 14, 1984. Redesignated and amended at 50 FR 23126, May 31, 1985; 50 FR 38004, Sept. 19, 1985)

the level of the principal official responsible for acquisition (PORA).

(c) Limitations. (5) The concurrence of legal counsel concerning the payment issue is optional.

(7) The ratification shall be in written document form containing verification of each limitation stated in FAR 1.602–3(C)(1)-(6), and shall be processed in accordance with 301.602–3(e) Procedures.

(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 of whether the contractor has commenced perform

301.503 Public meetings.

Public meetings will not normally be used to solicit comments or views on HHSAR or lower level acquisition regulations. However, when the topic is so controversial that the Department or OPDIV believes a public meeting would be beneficial, public meetings will be convened.

(49 FR 13961, Apr. 9, 1984. Redesignated at 50 FR 23127, May 31, 1985; 50 FR 38004, Sept. 19, 1985)

ance.

Subpart 301.6-Contracting Authority and Responsibility

SOURCE: 53 FR 15562, May 2, 1988, unless otherwise noted.

301.6023 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).

(2) The HCA or his/her designee is the official authorized to ratify an unauthorized commitment (but see (b)(3), below).

(3) Ratification authority may be redelegated by the HCA, but not below

(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 designee with any comments or information which should be considered in evaluation of the request for ratification. If legal review is desirable, the HCA or designee 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 designee, the file will be returned, along with the ratification document, to the contracting officer for issuance of a purchase order or contract, as appropriate.

(4) HCA's or their designees will report the number and dollar value of requests for ratifications received and ratifications authorized each calendar quarter. Reports shall be submitted in an original and one copy to the Deputy Assistant Secretary for Management and Acquisition to arrive no later than 30 calendar days after the close of each calendar quarter. (53 FR 43206, Oct. 26, 1988) 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 principal official responsible for acquisition (PORA). This authority is not delegable. The head of the contracting activity shall ensure that only the PORA is redelegated, and exercises, this authority.

(b) Only GS-1105 and 1106 and GS/GM1101 and 1102 personnel shall be appointed as contracting officers (see 301.603-3(b)).

(c) The appointment of contracting officers shall be made at one of the four levels specified under the HHS Acquisition Certification Program (see 301.603– 3(b)).

(d) An individual shall be appointed only in instances where a valid organizational need for a contracting officer can be demonstrated or a replacement position is to be filled. Factors to be considered in assessing the need for a contracting officer appointment include volume of actions, complexity of work, and structure of the organization.

quires additional information to make the decision, it shall be provided expeditiously by the nominating official. 301.603-3 Appointment.

(a) Contracting officer appointments shall become effective when the PORA signs the Standard Form 1402, Certificate of Appointment. SF 1402's shall be prepared and maintained in accordance with FAR 1.603-3.

(b) Appointments shall be made at one of the four levels established by the HHS Acquisition Certification Program. Therefore, the contracting officer candidate must meet the minimum eligibility requirements of certification for one of the four stated levels. The level will be determined by the organizational need or position being refilled (replacement). The four levels are as follows:

(1) Level 1Purchasing Agent. Mandatory for all personnel who have signature authority for small purchases (GS-1102, 1105, and 1106), including orders from GSA sources.

(2) Level II- Acquisition Official. Mandatory for those in the GS-1102 series. Sufficient for delegation of contracting officer authority to a maximum of $100,000.

(3) Level IIISenior Acquisition Official. Mandatory for those in the GS1102 series for delegation of contracting officer authority above $100,000.

(4) Level IV-Acquisition Manager. Mandatory for preaward review and approval authority as specified in HHSAR Subpart 304.71.

(c) Changes to contracting officer appointments, either increasing or decreasing the warrant limitations, shall be made by the PORA. Changes must be made from one of the four certification levels to another, or within one of the certification levels, and must be implemented by the PORA's issuance of a new SF 1402 to replace the existing SF 1402.

(d) Personnel shall not ordinarily be appointed as contracting officers if they do not meet the qualifications prescribed for one of the four certification levels. However, if it is essential to appoint a contracting officer who does not fully meet the certification qualifications, an interim appointment may be granted by the PORA. The

301.603–2 Selection.

(a) When an organizational need for a contracting officer is determined or a replacement is required, an official (usually the prospective contracting officer's immediate supervisor) will nominate a contracting officer candidate. The nomination shall be accompanied by the candidate's current Standard Form (SF) 171, Personal Qualifications Statement, that contains all relevant information, to include that stated in FAR 1.603–2, a copy of the nominee's most recent performance appraisal, and a copy of the certificate issued under the HHS Acquisition Certification Program indicating the current level of certification.

(b) The PORA shall review the submitted material to determine the candidate's ability to perform the contracting functions required to meet the organizational need. If the PORA re

PORA shall require as a condition of the interim appointment that all training or experience requirements be met within a six month time period. Usually, interim appointments shall not exceed six months. Failure to successfully complete the necessary training requirements or gain the experience within this time frame will result in termination of the appointment, unless the PORA determines that unusual circumstances prevented the attainment of either. In this instance, one additional six month interim appointment may be issued, but no more shall be allowed. The PORA shall fully document all interim appointment actions.

(e) The original SF 1402 shall be provided to the contracting officer, and a copy shall be retained by the PORA. Another copy of the SF 1402 along with the SF 171 material shall be forwarded to the servicing personnel office for inclusion in the individual's personnel file folder. Files on individuals should not be established by the PORA.

cation, and experience for Level IPurchasing Agent, or its equivalent as determined by the PORA, shall be required. 301.670 Head of the contracting activ

ity. 301.670–1 Responsibility.

The head of the contracting activity (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 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.

301.603-4 Termination.

Termination of contracting officer appointments shall be executed by the PORA in accordance with FAR 1.603 4.

301.670–2 Designation.

Each OPDIV head and PHS agency head has been designated as HCA along with the following officials:

(a) Deputy Assistant Secretary for Management and Acquisition; and

(b) Each Regional Director. (53 FR 15562, May 2, 1988, as amended at 54 FR 243A2, June 7, 1989)

301.603-70 Delegation of contracting

officer responsibilities. (a) Non-GS/GM-1101 or 1102 or GS1105 or 1106 personnel shall only be del. egated contracting officer responsibilities when determined necessary by a warranted contracting officer (holder of a valid SF 1402), and in accordance with this subsection. Personnel, such as a contracting officer's representative or an ordering officer, shall be delegated only the needed responsibilities by the warranted contracting officer in a written memorandum of delegation which clearly states any limitations on the delegation. Personnel who are not in the GS/GM-1101 or 1102 or GS-1105 or 1106 job series shall not be issued a SF 1402, Certificate of Appointment.

(b) Non-acquisition personnel who are delegated acquisition responsibilities shall be required to have the training, experience, and education requirements necessary for the responsibilities assigned. If, for example, responsibility is to be delegated for making small purchases, the training, edu

301.670_3 Redelegation.

(a) The heads of contracting activities may redelegate their HCA authorities to the extent that redelegation is not prohibited by the ter:ns 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.

(b) 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 301.7-Determinations

and Findings

SOURCE: 50 FR 23127, May 31, 1985 (interim rule) and 50 FR 38004, Sept. 19, 1985 (final rule), unless otherwise noted.

301.703 Class determinations and find

ings. (b) All class determinations and findings (D&F's) shall be limited to a period of one year or less.

301.704 Content.

An example of a D&F format may be found in 316.301-3(c). All D&F's shall be prepared using the referenced format and shall include the information required by FAR 1.704(a)g).

PART 302-DEFINITIONS OF WORDS

AND TERMS

Health (DASH), Alcohol, Drug Abuse, and Mental Health Administration (ADAMHA), Centers for Disease Control (CDC), Food and Drug Administration (FDA), Health Resources and Services Administration (HRSA), Indian Health Service (IHS), National Institutes of Health (NIH), Social Security Administration (SSA), and the Regional Offices (RO's), as follows: OMAC-OS-Director, Division of Contract

Operations HCFA—Director, Office of Acquisition and

Grants, Office of Budget and Administra

tion OHDS-Director, Grants and Contracts Man

agement Division, Office of Management

Services QASH–Director, Division of Acquisitions

Management, Administrative Services

Center, Office of Management ADAMHA-Director, Division of Grants and

Contracts Management, Office of the Ad

ministrator CDC—Director, Procurement and Grants Of

fice, Office of the Center Director FDA-Director, Division of Contracts and

Grants Management, Office of the Associate Commissioner for Management and Op

erations HRSA-Director, Division of Grants and Pro

curement Management, Office of Manage

ment IHS-Director, Division of Contracts and

Grants Policy, Office of Administration

and Management NIHDirector, Division of Contracts and

Grants, Office of Administration SSA–Associate Commissioner, Office of Ac

quisition and Grants RO's—Director, Regional Administrative

Support Center The PORA is subordinate to the head of the contracting activity and is the official in charge of the major contracting operation activity within the OPDIV, agency, staff office, or regional office. (49 FR 13964, Apr. 9, 1984, as amended at 51 FR 23231, June 26, 1986; 51 FR 44293, Dec. 9, 1986; 52 FR 27558, July 22, 1987; 53 FR 43207, Oct. 26, 1988; 54 FR 24342, June 7, 1989; 55 FR 13536, Apr. 11, 1990; 56 FR 47002, Sept. 17, 1991)

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

Subpart 302.1-Definitions

302.100 Definitions of terms.

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 principal official responsible for acquisition and is located at a management level above other contracting personnel, usually as a branch chief.

Head of the agency or agency head means the head of the Operating Division (OPDIV) for HCFA, OHDS, PHS, and SSA, or the Assistant Secretary for Management and Budget (ASMB) for the Office of the Secretary (OS).

Head of the contracting activity (HCAsee 301.670–2.

Principal official responsible for acquisition (PORA) is defined in terms of certain organizational positions within the Office of Management and Acquisition (OMAC-OS), Health Care Financing Administration (HCFA), Office of Human Development Services (OHDS), Office of the Assistant Secretary for

PART 303-IMPROPER BUSINESS

PRACTICES AND PERSONAL CONFLICTS OF INTEREST

Subpart 303.1-Saleguards

Sec. 303.101 Standards of conduct.

303.104 Procurement integrity.

Sec. 303.101-3 Agency regulations. 303.104 Procurement integrity. 303.1044 Definitions. 303.104-5 Disclosure of proprietary and

source selection information. 303.1046 Restric:ions on Government offi

cials, employees, and consultants. 303.104-9 Certification requirements. 303.104-11 Processing violations or possible

violations. 303.104–12 Ethics program training require

ments.

Subpart 303.2-Contract. Gratuities to

Goverment Personnel

303.203 Reporting suspected violations of

the Gratuities clause.

Subpart 303.3-Report of Suspected

Antitrust Violations

303.303 Reporting suspected antitrust viola

tions.

Subpart 303.4-Contingent Fees

303.408 Evaluation of the SF 119. 303.408–1 Responsibilities. 303.409 Misrepresentations or violations of

the Covenant Against Contingent Fees.

Subpart 303.5-Other Improper Business

Practices

303.1044 Definitions.

(h)(1) Procurement official means any individual who has participated personally and substantially in the conduct of a procurement. The following classes of employees may be considered procurement officials depending on the circumstances prevailing in a given case: contracting officers, contract specialists, contract administrators, procurement agents, procurement clerks, cost/ price analysts, procurement analysts, clerical support and administrative personnel, auditors, professional staff of the Division of Cost Allocation, acquisition review and approval officials, contract clearance staff, board of award members, supervisory procurement officials, small and disadvantaged business utilization specialists, project officers, project managers, program officials, officials who provide special program clearances and approvals, program managers, technical evaluation panelists, peer reviewers, source selection evaluation board members, source selection advisory council members, source selection authorities, finance officials, and procurement lawyers. Concept peer reviewers are not considered to be procurement officials when participating in project concept reviews pursuant to 42 CFR 52h.10(a). However, concept peer reviewers, or other peer reviewers, who participate in a project approach review are procurement officials. When there is a question whether an individual is a procurement official, the activities of the individual should be analyzed by the contracting officer to determine whether there is both personal and substantial involvement in a procurement. If there is doubt in a particular case, the doubt should be resolved by including the individual as a procurement official. The contracting officer has the authority to decide who is or who is not a procurement official in a particular case. The opinion of the Office of the General Counsel (OGC) should be requested when the contracting officer believes the situation is particularly complex or sensitive. When the contracting officer's decision is disputed by the individual whose status as a procurement official is in question, the

303.502 Subcontractor kickbacks.

Subpart 303.6-Contracts with Gover

ment Employees or Organizations

Owned or Controlled by Them 303.602 Exceptions. Subpart 303.7-Volding and Rescinding

Contracts

303.704 Policy.

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

SOURCE: 49 FR 13964, Apr. 9, 1984, unless otherwise noted.

Subpart 303.1-sateguards

SOURCE: 54 FR 31528, July 31, 1989, unless otherwise noted.

303.101 Standards of conduct.

303.101-3 Agency regulations.

The Department of Health and Human Services' Standards of Conduct are prescribed in Part 73 of Title 45.

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