A copy of each contracting officer's decision shall be furnished to the contractor by certified mail, return receipt requested, or in person, obtaining a receipt therefor. [37 FR 12797, June 29, 1972] § 3-1.318-50 Decision preparation, processing, and modification or withdrawal. (a) Where a dispute arises under a contract, the contracting officer will prepare a final decision pursuant to the Disputes Clause of the contract. This single document in the format set forth in paragraph (b) of this section should contain a simple and concise statement of: (1) The claim, (2) the decision, (3) the findings of fact which support the decision, and (4) the reference to the Disputes Clause. (b) The following format is suggested for use by contracting officers in preparing decisions under the disputes clause, if the contractor's claim is disallowed: (Date of findings and decision) Subject: Decision disallowing request of (Name of contractor) Under contract No. Date To: (Name and address of contractor) 1. In accordance with the provisions of the above-numbered contract, I have considered your request for (insert factual description of the request to identify clearly its nature and scope). 2. Your request as set forth above is disallowed (in whole or in part, according to the fact) for the following reasons: (Insert the findings of fact upon which the disallowance or allowance is based.) 3. The disputes "Clause" of the contract 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 and Human Services. 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 HHS 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 contractors 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] § 3-1.318-52 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 cognizant 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 DHHS 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 submitted will suffice. Documents in the appeal file may be originals or legible facsimiles or authenticated copies thereof, and shall be arranged in chronological order, where practicable, numbered sequentially, tabbed and indexed to identify the contents of the file. A copy of any material submitted to the ASBCA should be submitted to the Division of Business and Administrative Law, Office of General Counsel or cognizant Regional Attorney as appropriate. (c) Formats. format is suggested for transmitting appeal files to the ASBCA: (1) The following Your reference: (Docket No.) Mr. GEORGE L. HAWKES, DEAR MR. HAWKES: Transmitted herewith are documents relative to appeal under contract No.-with the (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 and Human Services, 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: (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 Office of General Counsel. Whenever an appeal is set for hearing, the contracting officer concerned, acting under the guidance of the Office of General Counsel, will be responsible for arranging for the presence of Government witnesses and specified physical and documentary evidence at both the pre-hearing conference and the hearing. (f) Whenever the contractor, subsequent to filing an appeal with the ASBCA, elects nevertheless to accept (a) This section implements 45 CFR Part 5b, Privacy Act Regulations, and FPR § 1-1.327, protection of the privacy of individuals, 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. (b) It is the Department's policy to protect the privacy of individuals to the maximum possible extent while permitting the exchange of records required 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). (c) In regard to the procurement process, it is the Department's policy to guard the individual's right of privacy whenever a departmental system of records on individuals (see § 11.327-2(e) for definition) is operated under contract rather than by the Department. The individual's privacy will be protected by the Department requiring the contractor to observe all the rules of privacy that apply to the Department (See § 1-1.327-3). [45 FR 15177, Mar. 10, 1980] § 3-1.327-2 [Reserved] § 3-1.327-3 [Reserved] § 3-1.327-4 Applicability. (a) 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 ac complish 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. 45 CFR 5b.16 gives examples of systems, maintained by contractors, which are covered and systems, maintained by contractors, which are not covered. (b) 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 procurement. 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 procurement. (c) 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. [45 FR 15178, Mar. 10, 1980, as amended at 45 FR 31721, May 14, 1980] (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 accomplish the actions required by § 11.327-5 and shall include the solicitation notification and contract clause required by § 1-1.327-5(b) and (c), respectively, in all instances specified by those paragraphs. In addition, the contracting officer shall ensure that the solicitation notification, contract clause, and other pertinent information specified in this § 3-1.327 are included in any contract modification which results in the Privacy Act requirements becoming applicable to the contract. (b) The contracting officer shall identify the system(s) of records on in and contract modifications to which the Privacy Act and the implementing regulations are applicable. (c) The contracting officer shall include in the contract the disposition to be made of the system(s) of records on individuals upon completion of performance of the contract. For example, the contract may require the contractor to completely destroy the records, to remove personal identifiers, to turn the records over to the Department, or to keep the records but take certain measures to keep the records confidential and protect the individuals' privacy. (d) The contracting officer shall include a statement in the contract notifying the contractor that the contractor and its employees are subject to criminal penalties for violations of the Act (5 U.S.C. 552a(i)) to the same extent as employees of the Department. The statement shall require that the contractor assure that each contractor employee knows the prescribed rules of conduct and each contractor employee is aware that he/she can be subjected to criminal penalties for violations of the Act. The contracting officer shall provide the contractor with a copy of the rules of conduct and other requirements set forth in 45 CFR Part 5b. (e) Whenever a procurement is determined to be subject to the Privacy Act requirements, a "system notice," prepared by the program official and describing the Department's intent to establish a new system of records on individuals, to make modifications to an existing system, or to disclose information in regard to an existing system, is required to be published in the FEDERAL REGISTER. A copy of the "system notice" shall be attached to the request for contract or purchase request. If a "system notice" is not attached, the contracting officer shall inquire about its status and shall obtain a copy from the program official for inclusion in the procurement file. If a "system notice" has not been published in the FEDERAL REGISTER, the contracting officer may proceed with the procurement but shall not award the contract until the "system (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] § 3-1.352 Freedom of Information Act. [47 FR 5414, Feb. 5, 1982] § 3-1.352-1 General. The Department's regulation implementing the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, is set forth in 45 CFR Part 5. This section implements those aspects of the FOIA and 45 CFR Part 5 that apply to procurement and contract records. [47 FR 5414, Feb. 5, 1982] § 3-1.352-2 Applicability. (a) The FOIA and 45 CFR Part 5 provide that Government records (see 45 CFR 5.5 for the definition of "records") are generally to be made available to the public after receipt of a request. However, the Department may withhold records if they fall within one or more of the specific cat egories exempted from disclosure by the FOIA. (b) The FOIA exemption most often cited to deny disclosure of procurement and contract records is exemption (b) (4) (5 U.S.C. 552(b) (4)), i.e., "trade secrets and commercial or financial information obtained from a person and privileged or confidential." Trade secrets, within the meaning of 18 U.S.C. 1905, are exempt from disclosure. Commercial and financial information can be exempted from disclosure only if it is privileged and confidential and is obtained from a person (source) by the Government. Commercial or financial information is generally considered confidential under exemption (b) (4) if disclosure is likely to have either of the following effects: (1) It would impair the Government's ability to obtain necessary information in the future; or (2) It would cause substantial harm to the competitive position of the source from whom the information was obtained. (c) Use of a restrictive legend on a document by the submitter of the document that purportedly identifies confidential information does not by itself place the document under an exemption. (See § 3-1.352-4 for procedures to be followed by the contracting officer and § 3-1.353 for the treatment of data in proposals.) [47 FR 5414, Feb. 5, 1982] § 3-1.352-3 Availability and nonavailability of specific records. Subpart F of 45 CFR Part 5 identifies specific types of records that may or may not be disclosed under the FOIA. Refer to § 5.71(c) and (d) for general guidance and § 5.72(c), (d), and (e) for details on specific procurement records. In addition, the Appendix to 45 CFR Part 5 provides a list of examples of specific records or information concerning contracts which are generally available and those which are not generally available under the FOIA. Note that these are general guidelines and application may vary based upon the circumstances of each individual case. [47 FR 5414, Feb. 5, 1982] (a) The contracting officer, upon receiving an FOIA request, shall follow Department and operating division procedures. As necessary, actions should be coordinated with the cognizant Freedom of Information (FOI) official and the Office of General Counsel. (b) When evaluating an FOIA request for a contract or procurement record which was obtained wholly or in part from a source outside the Department, the contracting officer must consider the origin of the record, its subject matter, and whether it was submitted under a restrictive legend. In instances when it is not certain whether a record or a portion of a record is to be withheld or disclosed under the FOIA, the following procedures shall be followed. (1) If there is reason to believe the source may object to release of the record or part of the record, the contracting officer or FOI official shall notify the source in writing that a request has been received, and the Department is considering release of the requested material. The written notification must advise the source of the specific requested material and require that the source provide a justification for withholding the material under an exemption of the FOIA if the source objects to its release. The notification must inform the source that the justification should explain in detail how disclosure of the requested material would result in significant harm to the competitive position of the source or benefit its competitors. The notification must also advise the source that the justification must be provided to the contracting officer or FOI official within five (5) working days from the date of the written notification. (2) Based on the justification submitted by the source in response to the notification described above and any other pertinent information, the contracting officer and the cognizant FOI official, in consultation with the Office of General Counsel, if necessary, shall consider whether to withhold the record or portions of the record from disclosure. Only the FOI official is authorized to make the de |