agreement with the evaluator prior to such disclosure. Also, review should be made to assure that the notice required by paragraph (e) of this section is affixed to the proposal before it is disclosed to the evaluator.

CONDITIONS FOR EVALUATING PROPOSALS The evaluator agrees to use the technical data and business information contained in the proposal only for evaluation purposes.

This requirement does not apply to technical data or business information obtained from another source without restriction.

Any notice or legend placed on the proposal by either HEW or the originator of the proposal shall be applied to any reproduction or abstract thereof. Upon completion of the evaluation, the evaluator shall return all copies of the proposal and abstracts, if any, to the HEW ofice which initially furnished the proposal for evaluation,

Unless authorized by the HEW initiating omce, the evaluator shall not contact the originator of the proposal concerning any aspects of its contents.

The evaluator will be obligated to obtain commitments from its employees in order to affect the purposes of these conditions.

(g) Evaluation and testing of equipment and material. Should evaluation of a proposal include the evaluation and testing of equipment or material submitted with the proposal, neither the Government nor any person acting on behalf of the Government assumes any liability to the submitter of the proposal, or any person acting on his behalf, in connection with any damage, loss, injury, or destruction resulting from such evaluation, and testing.

[37 FR 16397, Aug. 12, 1972]

§ 3-1.354 Contracts conditioned upon availability of funds.

(a) General. In those situations where it is necessary to initiate a procurement properly chargeable to funds of the new fiscal year prior to the availability of such funds, contracts may be entered into conditioned upon the availability of funds. In these cases, the supplies or services shall not be accepted until the funds are available to the contracting officer for the procurement and until the contracting officer has given notice, confirmed in writing, to the contractor of the availability of funds. Appropriate records shall be maintained to ensure adequate control of funds.

(b) Limitations. Contracts conditioned upon the availability of funds shall be used only for operation, maintenance and continuing services (e.g., janitorial services, garbage removal, utilities, rent

als) which are necessary for normal operation and for which the Congress consistently appropriates funds.

(c) Contract clause. The following clause shall be inserted in all solicitations and resultant contracts:

AVAILABILITY OF FUNDS

Funds are not presently available for this procurement. The Government's obligation hereunder is contingent upon the availability of appropriated funds from which payment for the contract can be made.

No legal liability on the part of the Government for payment of any money shall arise unless and until funds are made available to the Contracting Officer for this procurement and notice of such availability, to be confirmed in writing by the Contracting Officer, is given to the Contractor.

[38 FR 1392, Jan. 12, 1973]

§ 3-1.355 Federal Reports Act of 1942. (a) General. The Federal Reports Act of 1942 (44 U.S.C. 3501 et seq.), prohibits the conducting or sponsoring of the collection of information, upon identical items, from 10 or more persons (other than Federal employees considered as such), unless the approval of the Director, Office of Management and Budget, is obtained in advance of the adoption or revision of any plans or forms for such collection.

(b) Approvals. Whenever possible, data requirements shall be defined, cleared within HEW, and approval obtained from OMB prior to the issuance of the solicitation. The advice of the cognizant reports clearance officer shall be sought on all questions pertaining to required clearances. (See part 10 of the General Administration Manual for a detailed discussion of Federal Reports Act requirements and related directives.)

(c) Required clauses. Solicitations and resulting contracts which provide for the collection of information as described in (a) of this § 3-1.355, shall contain the clause set forth in § 3-7.5010 of this chapter and the appropriate clause set forth in 3-7.5011 of this chapter. [38 FR 13647, May 24, 1973] Subpart 3-1.4-Procurement Responsibility and Authority

SOURCE: The provisions of this Subpart 31.4 appear at 36 F.R. 22981, Dec. 2, 1971, unless otherwise noted.

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 HEW 552, available through normal distribution channels, shall be used to assist in conducting such reviews. § 3-1.403

Requirements to be met before entering into contracts.

(a) No contract shall be entered into, modified, or terminated unless all required reviews, ciearances, or approvals have been obtained and all applicable requirements of law, the FPR, the HEWPR, 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, HEWPR, 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, GS-1102, and Purchasing Series, GS-1105.

§ 3-1.404-2 Designation.

(a) Except for those individuals delegated procurement authority by § 3-75.101, designation of contracting officers shall be made in writing by the appointing official in accordance with HEW 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 HEWPR. A file shall be maintained containing all documents necessary to support the appointment of each contracting officer.

(b) A DHEW 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 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 HEWPR, 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 HEW 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 shall not be redelegated.

[36 FR 22981, Dec. 2, 1971, as amended at 87 FR 16080, Aug. 10, 1972]

§ 3-1.405-50 Ratification procedure.

Requests received by contracting offcers for ratification of commitments made by personnel lacking contracting authority shall be procesed 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 Administration (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]

§ 3-1.451

§ 3-1.452

[Reserved]

Responsibility of other Government personnel.

§ 3-1.452-1 General.

(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 mutu

ally 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 DHEW 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., sub

contracting;

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.

§ 3-1.452-3 Precontract support.

(a) After submission of the requirement to the procurement activity, program personnel must continue to support the procurement process by providing advice and assistance to the contracting officer in activities such as: (1) Formulation

plans.

of

procurement

(2) Conduct preaward or preproposal briefing of prospective contractors.

(3) Conduct of preaward surveys to determine contractor responsibility in accordance with § 1-1.310 of this title. (4) Evaluation of technical and business proposals submitted by contractors, including requests for Governmentfurnished facilities and equipment.

(5) Development or evaluation of plans, procedures, and contract provisions relating to quality control, inspection, 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 estab

lished by and limited to the written stipulations in the contract instrument. Unless authorized by the contracting officer, HEW 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. Subpart 3-1.6-Debarred, Suspended, and Ineligible Bidders

SOURCE: 88 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, Education, and Welfare (HEW) 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 in

(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 HEW 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 HEW Debarred Bidders List.

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

(1) Consolidated List of Current Administrative Debarments by Executive Agencies, and amendments thereto, compiled and published by the Office of Investigation-OA, General Services Administration (GSA). This publication is a combined list of debarred, suspended, and ineligible bidders, compiled from notifications furnished to GSA by executive agencies of the Federal Government.

(2) Consolidated List of Persons or Firms Currently Debarred for Violations of Various Public Contracts Acts Incorporating Labor Standards Provisions, and amendments thereto, compiled by the Comptroller General of the United States.

(3) Consolidated List of Concerns and Individuals Debarred, Suspended, or Declared Ineligible by the Department of Health, Education, and Welfare to participate in its procurement program under one or more of the bases set forth in FPR 1-1.602-1 and in accordance with the regulations in this Subpart.

(4) Contract, Ineligible List of persons and firms declared ineligible by the Office of Federal Contract Compliance (OFCC) of the Department of Labor to participate in Government contracting or subcontracting by reason of noncompliance with the Equal Opportunity clause.

(c) The Director, Office of Procurement and Materiel Management, OSOASAM, will effect direct distribution of the consolidated GSA, GAO, OFCC, and HEW lists among holders of the HEW Procurement Regulations in this Department.