Indian allotments, former Indian reservations in Oklahoma, and land held by incorporated Native groups, regional corporations, and village corporations under the provisions of the Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601 et seq.).

(6) "On or near an Indian Reservation" means on a reservation or reservations or within that area surrounding an Indian reservation(s) where a person seeking employment could reasonably be expected to commute to and from in the course of a work day.

(d) Compliance enforcement. (1) The concerned procuring activity shall be responsible for conducting periodic reviews to insure contractor compliance with the requirements of the clauses set forth in §§ 3-7.5015 and 3-7.5016. These reviews may be conducted with the assistance of the Indian Tribe(s) concerned.

(2) Complaints of noncompliance with the requirements of the clauses set forth in §§ 3-7.5015 and 3-7.5016 which are filed in writing with the procuring activity shall be promptly investigated and resolved by the contracting officer.

(e) Tribal preference requirements. (1) Where the work under a contract is to be performed on an Indian reservation, the procuring activity may supplement the clause set forth in § 37.5016 by adding specific Indian preference requirements of the Tribe on whose reservation the work is to be performed. The supplemental requirements shall be jointly developed for the contract by the procuring activity and the Tribe. Supplemental preference requirements must represent a further implementation of the requirements of section 7(b) of Public Law 93-638 and must be approved by the affected program director and approved for legal sufficiency by the Business and Administrative Law Division, OGC, or a regional attorney before being added to a solicitation and resultant contract. Any supplemental preference requirements to be added to the clause in § 3-7.5016 shall be included in the solicitation and clearly identified in order to ensure uniform understanding of the additional requirements by all prospective bidders or offerors.

(2) Nothing in these regulations shall be interpreted to preclude Tribes from independently developing and enforcing their own tribal preference requirements. Such independently developed tribal preference requirements shall not, except as provided in § 31.360(e)(1) above, become a requirement in contracts covered under this § 3-1.360 and must not conflict with any Federal statutory or regulatory requirement concerning the award and administration of contracts.

[48 FR 16268, Apr. 15, 1983]

Subpart 3-1.4-Procurement Responsibility and Authority

SOURCE: 36 FR 22981, Dec. 2, 1971, unless otherwise noted.

§ 3-1.401 Responsibility of the head of the procuring activity.

The head of the procuring activity (see § 3-75.101) is responsible for the conduct of an effective and efficient procurement 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 and evaluated by qualified personnel, preferably assigned to positions other than in the procurement activity being reviewed, to determine the extent of adherence to prescribed policies and regulations, and to detect a need for guidance and/ or training. The Procurement and Materiel Checklist, Form HHS 552, available through normal distribution channels, shall be used to assist in conducting such reviews.

83-1.403 Requirements to be met before entering into contracts.

(a) No contract shall be entered into, modified, or terminated unless all required reviews, clearances, or approvals have been obtained and all applicable requirements of law, the FPR, the HHSPR, and other applicable regulations have been met.

(b) In addition to the requirements specified in paragraph (a) of this section, no negotiated contract shall be entered into until the determinations and findings required by Parts 1

3 and 3-3 of this title with respect to the circumstances justifying negotiation and use of any special method of contracting have been made. Negotiations, in any form, will not begin with prospective contractors until all required determinations and findings authorizing such negotiations have been made.

§ 3-1.404 Selection, designation, and termination of designation of contracting officers.

The selection, designation, and termination of designation of contracting officers shall be made in accordance with operating agency procedures. Such agency procedures shall conform to the provisions of § 1-1.404 and this § 3-1.404.

§ 3-1.404-1 Selection.

Selection of candidates for contracting officer positions shall be based on the following qualifications:

(a) Practical experience in Government or commercial procurement organizations;

(b) Knowledge of procurement law, FPR, HHSPR, other regulations affecting procurement, and procurement practices;

(c) Training in Government or other procurement schools and courses; and (d) U.S. Civil Service Standards, Contract and Procurement Series, GS1102, and Purchasing Series, GS-1105.

§ 3-1.404-2 Designation.

(a) Except for those individuals delegated procurement authority by § 375.101, designation of contracting officers shall be made in writing by the appointing official in accordance with HHS General Administration Manual Chapter 8-75. Designation of an individual by name is the preferred method of appointing contracting officers. Appointments, either by individual, or position, shall include, or make specific reference to, any limitations on the scope of authority to be exercised by the contracting officer other than those contained in the FPR and the HHSPR. A file shall be maintained containing all documents necessary to support the appointment of each contracting officer.

(b) A DHHS Certificate of Appointment suitable for use in the appointment of Department contracting officers is available on an optional basis on the part of each agency. When utilized, this certificate is to be used to identify employees of the Department who have been delegated the authority to obligate the Government by execution of formal two signature contracting documents and/or small purchase orders. The certificate is not to be issued to employees where delegation of authority is restricted to procurement from Mandatory sources of supply (FSS, GSA, Perry Point, Md., DOD, etc.).

(c) Requests for certificates are to be made to the Director, Division of Procurement Policy and Regulations Development, OGPM, OASAM. Requests shall contain the name, current grade, location and extent of authority to be delegated.

[36 FR 22981, Dec. 2, 1971, as amended at 40 FR 29715, July 15, 1975]

§ 3-1.404-3 Termination of designation.

(a) Automatic termination. Unless the appointment of a contracting officer contains provision for automatic termination, the appointment shall remain effective, unless sooner revoked, until the contracting officer is reassigned or his employment is terminated.

(b) Revocation. The appointment of a contracting officer may be revoked at any time by the appointing authority but no such revocation shall operate retroactively. Revocation of the appointment shall be made by letter, reading substantially as follows:

Date

Subject: Termination of Appointment as Contracting Officer.

To: Name

Your appointment as Contracting Officer is hereby terminated effective 19-.

Signature and Title of Appointing Authority.

§ 3-1.405 Ratification of unauthorized contract awards.

(a) The Government is not bound by agreements or contractual commitments made to prospective contractors

13-133 0-83--3

by persons to whom procurement authority has not been delegated. Such unauthorized acts may be in violation of the Federal Property and Administrative Services Act, other Federal laws, the FPR, the HHSPR, and good procurement practice; e.g., certain requirements of law and regulation necessary for the proper establishment of a contractual obligation may not be met; i.e., certification of the availability of funds, determinations and findings, competition of sources, determination of contractor responsibility, certification of current pricing data, price/cost analysis, administrative approvals, negotiations of appropriate contract clauses, etc.

(b) Contracting officers shall not ratify contractual commitments made by other personnel of HHS without the prior approval of the head of the procuring activity or the Deputy Assistant Secretary for Administration in cases involving the Office of the Secretary. This approval authority may be redelegated to a designee not lower than the principal official responsible for procurement.

[36 FR 22981, Dec. 2, 1971, as amended at 37 FR 16080, Aug. 10, 1972; 43 FR 49000, Oct. 20, 1978]

§ 3-1.405-50 Ratification procedure.

Requests received by contracting officers for ratification of commitments made by personnel lacking contracting authority shall be processed as follows:

(a) The individual who made the unauthorized contractual commitment shall furnish the 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 procurement office was not utilized, why the proposed contractor was selected and a list of other sources considered, description of work to be performed or products to be furnished, estimated or agreed contract price, citation of appropriation available, and a statement of whether the contractor has commenced performance.

(b) The contracting officer will review the file and forward it to the head of the procuring activity or the Deputy Assistant Secretary for Ad

ministration (see § 3-1.405(b)) with any comments or information which should be considered in evaluation of the request for ratification. If legal review is desirable, the head of the procuring activity or the Deputy Assistant Secretary for Administration will coordinate the request for ratification with the Office of General Counsel, OS (GBA).

(c) If ratification is authorized by the head of the procuring activity or Deputy Assistant Secretary for Administration, the file will be returned to the contracting officer for issuance of a purchase order or contract as appropriate.

(d) Heads of the procuring activities or their designees, the Director, Office of Administrative Services, OS, and Director, Office of Regional and Community Development, or their designees, will report quarterly number and dollar value of (1) requests for ratifications received and (2) ratifications authorized during each calendar quarter. Reports shall be submitted in an original and one copy to the Director of Procurement and Material Management, OASAM, to arrive no later than 30 calendar days after the close of each reporting period. Negative reports, where applicable, are required. [37 FR 23272, Nov. 1, 1972]

(a) Responsibility for the decision of what to buy and when to buy rests with program and certain staff offices in the operating agencies and the Office of the Secretary. Responsibility for determining how to buy, the conduct of the buying process, and execution of the contract rests with the procurement activity, the contracting officer in particular.

(b) Personnel responsible for making decisions to buy should maintain a close and continuous relationship with their procurement activity to ensure that personnel are made aware of contemplated procurement actions. This will be mutually beneficial in terms of

better planning for procurement action and more timely, efficient, and economical procurement.

(c) Personnel not delegated contracting authority may not commit the Government, formally or informally to any type of contractual obligation (see § 3-1.405). However, program personnel who must use the contracting process to accomplish their programs, must support the contracting officer in ensuring that: (1) Requirements are clearly defined and specified; (2) competitive sources are solicited, evaluated, and selected; (3) quality standards are prescribed and met; (4) performance or delivery is timely; (5) prices, estimated costs, and fees are reasonable; (6) contract provisions, procurement regulations, and applicable laws are complied with; and (7) files are documented to substantiate the judgments, decisions, and actions taken. (See § 1-3.801-3.)

(d) A pamphlet entitled "The Negotiated Contracting Process-A Guide for Project Officers" prepared by the Office of the Secretary, is available for use by all DHHS project officers. The purpose of this pamphlet is to describe the role of the project officer in procurement planning, solicitation and evaluation of proposals, award and administration of contracts. Requests for copies of the pamphlet should be directed to the headquarters office responsible for Administration in the operating agency.

§ 3-1.452-2 Planning for procurement.

(a) Program and project plans should include a plan for procurement as an integral part of program or project development.

(b) Program and project managers should solicit the advice and assistance of procurement personnel in developing the procurement element of program and project plans so that the following factors can be considered early in the planning process:

(1) Definition of requirements in terms of specifications or work statement for use in invitations for bids, requests for proposals, and contract provisions.

(2) Development of "in-house" estimates for the cost of property or services to be procured, and identification

of appropriated funds available for the contract.

(3) Identifications of factors which require special consideration, i.e., subcontracting; contractor financing; source evaluation criteria; providing facilities and equipment; quality control; product qualification testing and acceptance; patents and copyright reporting requirements; and other approvals or clearances, etc.

(4) Development of lead-time necessary to complete the procurement process, i.e., prepare and process the purchase request, prepare and process the determination and findings, locate and evaluate sources, receive and evaluate bids or proposals, conduct preaward surveys or conferences, and negotiate and/or award the contract or contracts.

(c) It is incumbent upon initiators of procurement requirements to obtain timely approvals from higher authority whenever such approvals are required by regulations of this Department or other Government agencies; e.g., procurement of data processing resources; procurement of management consultant services; clearances by Office of Management and Budget; Government Printing Office, Treasury Department, General Services Administration, etc.

spection, test, and acceptance of products or services.

(6) Establishment of contract requirements concerning packing, packaging, marking, and shipment of products.

§ 3-1.452-4 Postaward contract administration.

(a) Upon execution of the contract by the contracting officer and the contractor, the mutual obligations of the Government and the contractor are established by and limited to the written stipulations in the contract instrument. Unless authorized by the contracting officer, HHS personnel shall not direct or request the contractor to assume any obligation or take any action not specifically stated in the contract. Only the contracting officer may impose on the contractor any requirement which will result in a change to the contract. All contract changes must be directed in writing or confirmed in writing by the contracting officer.

(b) The role of program, technical, and other personnel in postaward administration of the contract is to assist or advise the contracting officer (or act as his representative when so designated by the contracting officer) in activities such as:

(1) Conduct of conferences to ensure mutual understanding between the Government and the contractor as to scope of the contract, technical and business requirements, and the rights and obligations of the parties.

(2) Technical direction during contract performance and matters relating to product delivery, acceptance, or rejection.

(3) Evaluation of contractor performance, including inspection and testing of products, evaluation of reports and data, subcontract management, utilization of facilities and equipment, cost control, etc.

(4) Contractor systems and procedures evaluation; including accounting policies and procedures, purchasing policy and practices, property accounting and control, wage and salary plans and rate structures, personnel policies and practices, etc.

(5) Modification, renewal, or termination of the contract.

(6) Processing of disputes under the disputes clause and appeals therefrom.

§ 3-1.453 Establishment of cost rates.

The Director, Division of Cost Allocation of the Regional Administrative Support Center within each HHS regional office has been delegated the authority to establish indirect cost rates, research patient care rates, and, as necessary, fringe benefit, computer, and other special costing rates for use in contracts and grants awarded to State and local governments, colleges and universities, hospitals, and other non-profit organizations.

[44 FR 25454, May 1, 1979]

Subpart 3-1.6-Debarred, Suspended, and Ineligible Bidders

SOURCE: 38 FR 6391, Mar. 9, 1973, unless otherwise noted.

§ 3-1.600 Scope of subpart.

This subpart prescribes the policy and procedures of the Department of Health and Human Services (HHS) for (a) the establishment, use, maintenance, and distribution of a debarred, suspended, and ineligible bidders list, (b) the debarment and suspension of bidders for cause and (c) the placement of bidders in ineligible status for violations of the provisions of the Equal Opportunity clause.

§ 3-1.602 Establishment, maintenance and distribution of a list of concerns or individuals debarred, suspended, or declared ineligible (Debarred Bidders List).

(a) The Director, Office of Procurement and Materiel Management, OSOASAM, is responsible for establishment and maintenance of a master consolidated list or file of firms and individuals who are administratively or legally debarred from HHS contracting and subcontracting and from whom bids and proposals will not be solicited as provided in FPR 1-1.603. This list will be known as the HHS Debarred Bidders List.

(b) Collectively, the following documents shall constitute the HHS Debarred Bidders List: