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. (1) The following format is suggested for transmitting appeal files to the ASBCA:

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 fully the decision from which appeal was taken or any modification thereof, and gives written notification of such acceptance to the Office of General Counsel or the contracting officer concerned, the Office of General Counsel will notify the ASBCA of the disposition of the dispute in accordance with Rule 27 of the ASBCA.

(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 accomplish 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 individuals in solicitations, contracts, 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 exam

ple, 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 notice" is published, and publication is verified by the contracting officer.

[45 FR 15178, Mar. 10, 1980, as amended at 45 FR 31721, May 14, 1980]

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]

§ 3-1.352-2 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 categories 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 disclo

sure. 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]

§ 3-1.352-4 Procedures.

(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 determination to withhold the record or portions of the record from disclosure.

(3) If the source objects to the release of the information but the FOI official disagrees with the justification for withholding, that official will notify the source and the requestor in writing of the determination. The notification to the source must include a copy of the material marked as the Department proposes to release it and must state that release will be made

five (5) working days from the date of that notification.

[47 FR 5414, Feb. 5, 1982]

§ 3-1.353 Treatment of data in contract proposals.

(a) General. (1) The term "data," as used in this section, refers to trade secrets, business data, and technical data. Trade secrets, within the meaning of 18 U.S.C. 1905, include, for example, processes, formulas, and chemical compositions. Business data includes, for example, commercial information, financial information, and cost and pricing data. Technical data includes, for example, plans, designs, suggestions, improvements and concepts.

(2) Data received by the Department may have been obtained under conditions which restrict the Department's right to use the data. Therefore, care must be taken when considering the use of data to assure that the Department has sufficient rights to use it in the manner desired.

(3) One of the principal ways in which the Department receives data is by means of proposals. However, some proposals are offered and received under conditions which may prevent the Department from using the data for other than evaluation purposes.

(b) Types of proposals. Proposals received by the Department are of two types-unsolicited and solicited.

(1) Essentially, an unsolicited proposal is a written offer to perform work which does not result from a formal written request from the Department for proposals or quotations. Unsolicited proposals are discussed in detail in Subparts 1-4.9 and 3-4.9.

(2) A solicited proposal is a written offer to perform work which results from a formal written request from the Department for proposals or quotations.

(c) Policy for unsolicited proposals. The policy for treatment of data in unsolicited proposals is located in §§ 14.913 and 3-4.913.

(d) Policy for solicited proposals. (1) The Department recognizes that requests for proposals may require the offeror, including its prospective subcontractor(s), if any, to submit data which the offeror does not want

used or disclosed for any purpose other than for evaluation of the proposal. Each proposal containing data which the offeror desires to restrict must be marked on the cover sheet by the offeror with the legend set forth within paragraph (d)(2) of this section. Proposals, or portions of proposals, so marked shall be handled in accordance with the provisions of the legend.

(2) The following provision shall be included in the RFP:

The proposal submitted in response to this request may contain data (trade secrets; business data, e.g., commercial information, financial information, and cost and pricing data; and technical data) which the offeror, including its prospective subcontractor(s), does not want used or disclosed for any purpose other than for evaluation of the proposal. The use and disclosure of any data may be so restricted; provided, that the Government determines that the data is not required to be disclosed under the Freedom of Information Act, 5 U.S.C. 552, as amended, and the offeror marks the cover sheet of the proposal with the following legend, specifying the particular portions of the proposal which are to be restricted in accordance with the conditions of the legend. The Government's determination to withhold or disclose a record will be based upon the particular circumstances involving the record in question and whether the record may be exempted from disclosure under the Freedom of Information Act:

Unless disclosure is required by the Freedom of Information Act, 5 U.S.C. 552, as amended, (the Act) as determined by Freedom of Information (FOI) Officials of the Department of Health and Human Services, data contained in the portions of this proposal which have been specifically identified by page number, paragraph, etc. by the offeror as containing restricted information shall not be used or disclosed except for evaluation purposes.

The offeror acknowledges that the Department may not be able to withold a record (data, document, etc.) nor deny access to a record requested pursuant to the Act and that the Department's FOI Officials must make that determination. The offeror hereby agrees that the Government is not liable for disclosure if the Department has determined that disclosure is required by the Act.

If a contract is awarded to the offeror as a result of, or in connection with, the submission of this proposal, the Government shall have the right to use or disclose the data to the extent provided in the contract. Propos