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manuscripts are retained and filed in (b) Material published in the FPR the Director's office.
which has Government-wide applica
bility becomes effective throughout § 3-1.104 Applicability.
HEW upon the effective date cited in The FPR and HEWPR apply to all the particular FPR material. Such maHEW procurements of personal prop
terial generally will not be repeated, erty, real property by lease, and non paraphrased, or otherwise stated in personal services (including construc
HEWPR except to the extent necestion). The HEWPR applies to con sary to implement or deviate from the tracts and to agreements and other in FPR, HEWPR material will be effecstruments (regardless of name) which tive on the date of the transmittal are subject to 41 U.S.C. 252. Unless notice by which distributed unless othspecified otherwise, these regulations erwise indicated in the respective apply to procurements within and out transmittal notice. side the United States. Requests for (c) All HEWPR material deemed authority to deviate from the FPR necessary for the general public to unand HEWPR shall comply with proce derstand basic and significant HEW dures set forth in 88 1-1.009 and 3 procurement policies and procedures 1.109.
will be published in the FEDERAL REG
ISTER and codified as Chapter 3 of (36 FR 22980, Dec. 2, 1971, as amended at 39. FR 14340, Apr. 23, 1974)
Title 41, Code of Federal Regulations.
The FEDERAL REGISTER and Title 41 of § 3-1.105 Exclusions.
the Code of Federal Regulations may
be purchased from the Superintendent Certain HEW policies and proce
of Documents, Government Printing dures which come within the scope of
Office, Washington, D.C. 20402. this chapter nevertheless may be excluded from HEW Procurement Regu (36 FR 22980, Dec. 2, 1971, as amended at 38 lations. The exclusions are categorized
FR 4667, Feb. 20, 1973) as follows:
(a) Policy or procedure which is ex. 83-1.107 Arrangement. pected to be effective for a period of
§ 3-1.107-1 General plan. less than 6 months which shall be issued in procurement circular format. (a) The HEWPR conform with the
(b) When the time will not permit Federal Procurement Regulations preparation in final codified form, the System with respect to divisional ar. policy or procedure shall be issued in rangements into parts, subparts, secprocurement circular format. Conver- tions, subsections, and further subdivi. sion to permanent type HEWPR shall sions as necessary. be made as soon as possible, in most (b) As the FPR System pertains to instances, within 180 days.
the Department, it consists of (1) regu(c) Issuances of a semipermanent lations published by the Administrator nature which have limited applicabil of General Services in Chapter 1-Fed. ity, such as those pertaining to a spe eral Procurement Regulations, and (2) cific program or geographical area complementary Departmental regula(e.g., metropolitan Washington, D.C.), tions published in Chapter 3. In keepshall be published as manual guides.
ing with the DHEW Staff Manual
System, such regulations will be pub§ 3-1.106 Issuance.
lished as integral parts of the HEW (a) HEWPR implement, supplement, Procurement Regulations. and in some instances may deviate from, the FPR. Implementing materi
§ 3-1.107–2 Numbering. al is that which expands upon or indi (a) The FPR System of numbering cates the manner of compliance with permits the keying of similar subject related FPR material. Supplementing matter throughout Chapters 1 and 3. material is that for which there is no Each section number is a combination counterpart in the FPR. Deviating ma showing to the left of the decimal terial is defined in § 1-1.009 of the point the chapter and part numbers, FPR.
separated by a dash. To the right of
the decimal point the subpart, section, $ 3-1.109 Deviation.
As used in the HEWPR, the term fee contract provisions contained in "deviation" pertains to actions set Chapter 1, Part 1-3, Subpart 1-3.4, forth in § 1-1.009-1 of this title. Section 04, Subsection 3 of the Federal Procurement Regulations (8 1-3.404 § 3-1.109-2 Procedure. 3), would assign the section number
In the interest of establishing and “3-3.404-3” to the complementary pro maintaining uniformity to the greatest visions.
extent feasible, deviations from either (b) The first 49 parts of Chapter 3 the FPR or HEWPR shall be kept to a are reserved for regulations imple- minimum and controlled as follows: menting Chapter 1. Part 50 and suc- (a) When a change is considered necceeding parts are reserved for Depart essary to a prescribed contract clause, mental and agency regulations that request for approval shall be submit. are not included in Chapter 1 or else- ted ir. the manrer set forth in 83where in Chapter 3.
16.5003. (c) Where material in the FPR re
in the PR re. (b) With the exception of paragraph quires no implementation or deviation, (a) of this section, the head of each there is no corresponding number in
procuring activity or the official he the HEWPR. Thus, there are gaps in
has designated to act for him in authothe HEWPR sequence of numbers
rizing a deviation from procurement where the FPR, as written, are appli
regulations shall authorize a deviation
from the FPR or HEWPR only after cable to HEW procurement.
he obtains approval resulting from the § 3-1.107-3 Citation.
submission of a request to the Director
of Procurement and Materiel ManageThe HEWPR will be cited in the
ment, OASAM, prepared in accordsame manner as the FPR are cited. ance with paragraphs (c) and (d) of Thus, this section, in referring to divi this section. sions of the FPR system, should be (c) When an agency or staff office cited as “83-1.107-3 of Chapter 3."
determines that a deviation is needed, When the official Code of Federal it shall normally request the deviation Regulations citation is used, this sec in writing as far as possible in advance tion should be cited as “41 CFR 3- of need. In an exigency, an agency or 1.107-3." Any section of the HEWPR staff office may request a deviation may be identified informally, for pur verbally, to be confirmed in writing as poses of brevity, as “HEWPR” fol. soon as circumstances permit. lowed by the section number, such as (d) A deviation request shall set “HEWPR 3-1.107-3."
forth clearly and precisely:
(1) Nature of the needed deviation; § 3-1.108 Implementation.
(2) Identification of the FPR or (a) Procurement policies and proce
HEWPR from which the deviation is
needed; dures which are necessary to imple
(3) Circumstances under which the ment, supplement, or deviate from the
deviation would be used; FPR will be issued in the HEWPR by
(4) Intended effect of the deviation; the Director of Procurement and Ma
(5) Time frame; and teriel Management, OS-OASAM.
(6) Reasons which will contribute to when necessary to accomplish Depart
complete understanding and support mentwide procurement objectives.
of the requested deviation. Copies of (b) Policies and procedures which
pertinent background papers such as are necessary to implement and sup
forms, or contractor's request, should plement the FPR and the HEWPR at
accompany the deviation request. the operating agency level will be (e) Where deviations from the FPR issued by the heads of procuring activ- in classes of cases are considered necity (see § 3-75.101) or their designees. essary, requests for authority to devi. ate shall be submitted through admin actions related to the contracting as. istrative channels to the Director of pects of a procurement. Each contract Procurement and Materiel Manage- file shall contain documents or other ment, OASAM, who will consider the data sufficient to explain and support submission jointly with the General the rationale, judgments, and authoriServices Administration (GSA). Where ties upon which all decisions and accompelling circumstances preclude the tions were predicated. obtaining of prior concurrence of
(34 FR 5159, Mar. 13, 1969. Redesignated at GSA, the Director of Procurement and
36 FR 22981, Dec. 2, 1971) Materiel Management, OASAM, may authorize a deviation and shall inform $ 3-1.318 Contracting officer's decision GSA of the deviation including the cir under a disputes clause. cumstances under which it was re
A copy of each contracting officer's quired.
decision shall be furnished to the con83-1.150 Revision.
tractor by certified mail, return re
ceipt requested, or in person, obtainWhen an operating agency deems it
ing a receipt therefor. essential that a regulation set forth in HEWPR be changed in the interest of
(37 FR 12797, June 29, 1972) program effectiveness, a proposed revision of the regulation may be submit
8 3-1.318-50 Decision preparation, procted to the Director of Procurement
essing, and modification or withdrawal. and Materiel Management, OASAM, (a) Where a dispute arises under a for review and consideration. A de- contract, the contracting officer will tailed statement of justification shall prepare a final decision pursuant to be attached to each proposed revision the Disputes Clause of the contract. submitted for review.
This single document in the format set
forth in paragraph (b) of this section Subpart 3-1.3—General Policies
should contain a simple and concise statement of: (1) The claim, (2) the de
cision, (3) the findings of fact which § 3-1.302 Procurement sources.
support the decision, and (4) the refer[36 FR 22981, Dec. 2, 1971)
ence to the Disputes Clause.
(b) The following format is suggest§ 3-1.302-1 General.
ed for use by contracting officers in (a) Section 103-25.160 of the Mater preparing decisions under the disputes iel Management Manual sets forth the
clause, if the contractor's claim is dispriority by which Department pro
allowed: curement activities shall utilize the various sources of supply, and procedures for requesting waivers to deviate
(Date of findings and decision) frcm inandatory sources.
Subject: Decision disallowing request of (36 FR 22981, Dec. 2, 1971)
(Name of contractor) § 3-1.313 Records of contract actions. Under contract No.
Date --§ 3-1.313-50 General.
(Name and address of contractor) (a) All procuring activities within
1. In accordance with the provisions of the HEW shall maintain an official con
above-numbered contract, I have considered tract file for each contract issued. your request for (insert factual description Files for small purchase transactions of the request to identify clearly its nature shall be established and maintained in and scope). accordance with Subparts 1-3.6 and 3
2. Your request as set forth above is disal3.6.
lowed (in whole or in part, according to the
fact) for the following reasons: (Insert the (b) Operating agencies shall ensure
findings of fact upon which the disallowthat each contract file constitutes an
ance or allowance is based.) independent record, documented to 3. The disputes "Clause" of the contract provide a complete chronology of all provides that within 30 days from the date
of receipt hereof the contractor may appeal from this decision by mailing or otherwise furnishing to the contracting officer a written appeal addressed to the Secretary of the Department of Health, Education, and Wel fare, Two copies should accompany the original notice of appeal. The notice of appeal should identify the contract (by number), the decision from which the appeal is taken, and be signed by appellant or an officer of appellant organization, or by a duly authorized representative or attorney.
4. The Armed Services Board of Contract Appeals (ASBCA) is the authorized representative of the Secretary for hearing and determining such disputes.
(c) Contracting officers shall refer all proposed final decisions to the Office of General Counsel (GBA), OS, or the Regional Attorney in the HEW Regional Office for the region in which the procuring activity is located, for advice as to legal sufficiency and format before forwarding them to contractors. Contracting officers shall submit a copy of the complete contract file with each proposed final decision.
(d) At any time within the period of appeal, the contracting officer may modify or withdraw his final decision. If an appeal from the final decision has been taken to the ASBCA, the contracting officer will forward his recommended action to the Office of General Counsel (GBA) together with the file required by $ 3-1.318-50(c), as supplemented to support the recommended correction or amendment. (37 FR 12797, June 29, 1972) § 3-1.318-51 Disputes appeals.
(a) The Secretary has designated the ASBCA to hear, consider, and determine fully and finally appeals by con: tractors from decisions of contracting officers or their authorized representatives pursuant to the provisions of contracts requiring his decisions.
(b) Appeals will be governed by the rules set forth in 32 CFR 30.1, Appendix A (Rules of the Armed Services Board of Contract Appeals) and by the implementation of ASBCA rules 3 and 4 as set forth in § 3-1.318-52(a) and (b). (40 FR 16319. Apr. 11, 1975)
83-1.318-52 Preparation and processing
of appeal files. (a) Forwarding appeals. When a notice of appeal in any form has been received by the contracting officer, he shall endorse thereon the date of mailing (or date of receipt, if otherwise conveyed) and within 10 days shall forward said notice of appeal to the ASBCA with a copy to the Division of Business and Administrative Law, Office of General Counsel or cogni. zant Regional Attorney as appropriate. Following receipt by the Board of the original notice of an appeal (whether through contracting officer or otherwise), the contractor, the contracting officer, and the Office of General Counsel, will be promptly advised of its receipt, and the contractor will be furnished a copy of the rules of the ASBCA.
(b) Duties of the contracting officer. Within 30 days of receipt of an appeal, or advice that an appeal has been filed, the contracting officer shall assemble and transmit to the Board, with a copy to the DHEW Government trial attorney, an appeal file consisting 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 amendments, 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 witnesses on the matter in dispute made prior to the filing of the notice of appeal with the Board.
(5) Any additional information considered pertinent. Within 30 days of receipt of an appeal or advice that an appeal has been filed, the contracting officer shall furnish the appellant with a copy of each document transmitted to the Board, except those enumerated in paragraph (b)(2) of this section, for which a list of the contractual documents submit
ted will suffice. Documents in the Office of General Counsel. Whenever appeal file may be originals or legible an appeal is set for hearing, the confacsimiles or authenticated copies tracting officer concerned, acting thereof, and shall be arranged in under the guidance of the Office of chronological order, where practicable, General Counsel, will be responsible numbered sequentially, tabbed and in for arranging for the presence of Gov. dexed to identify the contents of the ernment witnesses and specified physifile. A copy of any material submitted
cal and documentary evidence at both to the ASBCA should be submitted to
the pre-hearing conference and the the Division of Business and Adminis
hearing. trative Law, Office of General Counsel
(f) Whenever the contractor, subseor cognizant Regional Attorney as ap
quent to filing an appeal with the propriate.
ASBCA, elects nevertheless to accept (c) Formats. (1) The following
fully the decision from which appeal format is suggested for transmitting
was taken or any modification thereof, appeal files to the ASBCA:
and gives written notification of such Your reference:
acceptance to the Office of General (Docket No.)
Counsel or the contracting officer conMr. GEORGE L. HAWKES,
cerned, the Office of General Counsel Recorder, Armed Services Board of Contract
will notify the ASBCA of the disposiAppeals, 200 Stovall Street, Alexandria, Virginia 22332.
tion of the dispute in accordance with DEAR MR. HAWKES: Transmitted herewith
Rule 27 of the ASBCA. are documents relative to appeal under con
(40 FR 16319, Apr. 11, 1975, as amended at cract No.---
41 FR 19634, May 13, 1976)
(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, Education and Welfare, 330 Independence Avenue, S.W., Washington, D.C. 20201, telephone number 245-7752, or Regional Attorney and office address as appropriate).
The request for payment of charges resulting from the processing of this appeal should be addressed to:
§ 3-1.350 Procurement involving bulk
mailing. (a) Use of official mailing indicia. Envelopes or labels may be furnished to contractors for use in accordance with contract terms. However, they must bear the printed return address of the Department over the words "Official Business." The name and return address of a private person or firm must never be used on an envelope or label bearing official mailing indicia. This includes envelopes mailed by the contractor as well as envelopes used in reply to a contractor's inquiries.
(b) Use of Zip Code presort. All contracts and all solicitation documents for proposed procurements to be entered into with private mailers, or other contracts when bulk mailing is incident to contract performance, shall include the stipulation that mailings will be prepared in compliance with current Zip Code Presort requirements, and be deposited in the post office no later than 4:00 p.m. (35 FR 19751, Dec. 30, 1970)
(Insert name and address of cognizant finance office.)
(d) The Office of General Counsel is designated as the Government Trial Attorney to represent the Government in the defense of appeals before the ASBCA. Decisions of the ASBCA will be transmitted by the Government Trial Attorney to appropriate contracting officers for action according to ASBCA's decision.
(e) At all times after the filing of an appeal, the contracting officer will render all assistance requested by the
§ 3-1.352 Drug products-effectiveness. (36 FR 19586, Oct. 8, 1971]