als not resulting in a contract remain subject to the Act.

The offeror also agrees that the Government is not liable for disclosure or use of unmarked data and may use or disclose the data for any purpose, including the release of the information pursuant to requests under the Act.

Offerors are cautioned that proposals submitted with restrictive legends or statements differing in substance from the above legend may not be considered for award. The Government reserves the right to reject any proposal submitted with a nonconforming legend.

(3) Contracting officers receiving proposals which contain restrictive statements or legends not conforming to the above provision must carefully evaluate the form and substance of the restriction before making a determination to reject the proposal. Deviations in form which do not compromise the Government's rights may be accepted if approved by the activity's FOI official and the Office of General Counsel.

(e) Procedures for handling and disclosing proposals. (1) The procedures and notice specified in § 1-4.913(c), (d), and (e) shall be used in handling both solicited and unsolicited proposals and for disclosing proposals outside the Government for evaluation purposes.

(2) Decisions to disclose proposals outside the Government for evaluation purposes shall be made by the chief official having programmatic responsibility for the procurement, after consultation with the contracting officer and in accordance with operating division procedures. The decision to disclose either a solicited or unsolicited proposal outside the Government for the purpose of obtaining an evaluation shall take into consideration the avoidance of organizational conflicts of interest and any competitive relationship between the submitter of the proposal and the prospective evaluator(s).

(3) When it is determined to disclose a proposal outside the Government for evaluation purposes, the following conditions, or similar appropriate conditions, shall be included in the written agreement with the evaluator(s) prior to disclosure (see § 1-4.913(d) and (e)). Also, a review must be made to ensure that the notice required by

§ 1-4.913(c) is affixed to the proposal before it is disclosed to the evaluator(s).

CONDITIONS FOR EVALUATING PROPOSALS

The evaluator agrees to use the data (trade secrets, business data, and technical data) contained in the proposal only for evaluation purposes.

This requirement does not apply to data obtained from another source without restriction.

Any notice or legend placed on the proposal by either the Department or the submitter of the proposal shall be applied to any reproduction or abstract provided to the evaluator or made by the evaluator. Upon completion of the evaluation, the evaluator shall return the Government furnished copy of the proposal or abstract, and all copies thereof, to the Departmental office which initially furnished the proposal for evaluation.

Unless authorized by the Department's initiating office, the evaluator shall not contact the submitter of the proposal concerning any aspects of its contents.

The evaluator will be obligated to obtain commitments from its employees and subcontractors, if any, in order to effect the purposes of these conditions.

[47 FR 5415, Feb. 5, 1982]

§ 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 insure 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, rentals) which are necessary for normal operation and for which the Congress consistently appropriates funds.

(c) Solicitation notice and contract clause. The clause set forth in § 37.5006 shall be inserted in all solicitations and resultant contracts.

[38 FR 1392, Jan. 12, 1973, as amended at 44 FR 36973, June 25, 1979]

§ 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 HHS, 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.)

[38 FR 13647, May 24, 1973, as amended at 44 FR 36973, June 25, 1979]

§ 3-1.356 Accessibility of meetings, conferences, and seminars to persons with disabilities.

(a) It is the policy of HHS that all meetings, seminars, and conferences be accessible to individuals with disabilities. For the purposes of this policy, accessibility is defined as both physical access to meeting, conference, and seminar sites, and aids and services to enable individuals with sensory disabilities to fully participate in meetings, conferences, and seminars.

(b) In regard to procurement, the policy is applicable to all contracts where the statement of work requires the contractor to conduct conferences, meetings, or seminars that are open to the public or involve HHS personnel, but not to ad hoc meetings that may be necessary or incidental to contract performance.

(c) The contracting officer shall be responsible for including the clause

described in § 3-7.5026 in every solicitation and resulting contract when the statement of work requires the contractor to conduct meetings, conferences, or seminars in accordance with paragraph (b), of this section.

(d) The project officer shall be responsible for obtaining, reviewing, and approving the contractor's plan, which is to be submitted in response to paragraph (a) of the contract clause described in § 3-7.5026. A consolidated or master plan for contracts requiring numerous meetings, conferences, or seminars will be acceptable. The project officer, prior to approving the plan, shall consult with the Office of Facilities Engineering, or the Office of Regional Operations for Facilities Engineering and Construction in the region where the meeting, conference, or seminar is to be held, to assure that the contractor's plan meets the accessibility requirements of the contract clause. The Office of Facilities Engineering or the Office of Regional Operations for Facilities Engineering and Construction shall make a determination on the adequacy of the contractor's plan, and notify the project officer, in writing, within ten (10) working days of receiving the request from the project officer.

[45 FR 25395, Apr. 15, 1980]

§ 3-1.357 Confidentiality of information.

(a) General. In the performance of certain HHS contracts it is necessary for the contractor to generate data or be furnished data by the Government, which is about individuals, organizations, or Federal agency programs.

This section imposes a responsibility on contractors to handle in a prudent way disclosure of certain types of information which is not subject to the Privacy Act or HHS Human Subject regulations in 45 CFR Part 46. It contains provisions that are to be included in applicable requests for proposals (RFPs) and contracts. These describe the kinds of data to be generated by the contractor and/or data to be furnished by the Government that are considered confidential and how they should be treated.

(b) Policy. It is the policy of HHS to protect the personal interests of indi

als not resulting in a contract remain subject to the Act.

The offeror also agrees that the Government is not liable for disclosure or use of unmarked data and may use or disclose the data for any purpose, including the release of the information pursuant to requests under the Act.

Offerors are cautioned that proposals subImitted with restrictive legends or statements differing in substance from the above legend may not be considered for award. The Government reserves the right to reject any proposal submitted with a nonconforming legend.

(3) Contracting officers receiving proposals which contain restrictive statements or legends not conforming to the above provision must carefully evaluate the form and substance of the restriction before making a determination to reject the proposal. Deviations in form which do not comproImise the Government's rights may be accepted if approved by the activity's FOI official and the Office of General Counsel.

(e) Procedures for handling and disclosing proposals. (1) The procedures and notice specified in § 1-4.913(c), (d), and (e) shall be used in handling both solicited and unsolicited proposals and for disclosing proposals outside the Government for evaluation purposes.

(2) Decisions to disclose proposals outside the Government for evaluation purposes shall be made by the chief official having programmatic responsibility for the procurement, after consultation with the contracting officer and in accordance with operating division procedures. The decision to disclose either a solicited or unsolicited proposal outside the Government for the purpose of obtaining an evaluation shall take into consideration the avoidance of organizational conflicts of interest and any competitive relationship between the submitter of the proposal and the prospective evaluator(s).

(3) When it is determined to disclose a proposal outside the Government for evaluation purposes, the following conditions, or similar appropriate conditions, shall be included in the written agreement with the evaluator(s) prior to disclosure (see § 1-4.913(d) and (e)). Also, a review must be made to ensure that the notice required by

CONDITIONS FOR EVALUATING PROPOSALS

The evaluator agrees to use the data (trade secrets, business data, and technical data) contained in the proposal only for evaluation purposes.

This requirement does not apply to data obtained from another source without restriction.

Any notice or legend placed on the proposal by either the Department or the submitter of the proposal shall be applied to any reproduction or abstract provided to the evaluator or made by the evaluator. Upon completion of the evaluation, the evaluator shall return the Government furnished copy of the proposal or abstract, and all copies thereof, to the Departmental office which initially furnished the proposal for evaluation.

Unless authorized by the Department's initiating office, the evaluator shall not contact the submitter of the proposal concerning any aspects of its contents.

The evaluator will be obligated to obtain commitments from its employees and subcontractors, if any, in order to effect the purposes of these conditions.

[47 FR 5415, Feb. 5, 1982]

§ 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 insure 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, rentals) which are necessary for normal operation and for which the Congress consistently appropriates funds.

(c) Solicitation notice and contract clause. The clause set forth in § 37.5006 shall be inserted in all solicitations and resultant contracts.

[38 FR 1392, Jan. 12, 1973, as amended at 44 FR 36973, June 25, 1979]

§ 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 HHS, 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.)

[38 FR 13647, May 24, 1973, as amended at 44 FR 36973, June 25, 1979]

§ 3-1.356 Accessibility of meetings, conferences, and seminars to persons with disabilities.

(a) It is the policy of HHS that all meetings, seminars, and conferences be accessible to individuals with disabilities. For the purposes of this policy, accessibility is defined as both physical access to meeting, conference, and seminar sites, and aids and services to enable individuals with sensory disabilities to fully participate in meetings, conferences, and seminars.

(b) In regard to procurement, the policy is applicable to all contracts where the statement of work requires the contractor to conduct conferences, meetings, or seminars that are open to the public or involve HHS personnel, but not to ad hoc meetings that may be necessary or incidental to contract performance.

(c) The contracting officer shall be responsible for including the clause

described in § 3-7.5026 in every solicitation and resulting contract when the statement of work requires the contractor to conduct meetings, conferences, or seminars in accordance with paragraph (b), of this section.

(d) The project officer shall be responsible for obtaining, reviewing, and approving the contractor's plan, which is to be submitted in response to paragraph (a) of the contract clause described in § 3-7.5026. A consolidated or master plan for contracts requiring numerous meetings, conferences, or seminars will be acceptable. The project officer, prior to approving the plan, shall consult with the Office of Facilities Engineering, or the Office of Regional Operations for Facilities Engineering and Construction in the region where the meeting, conference, or seminar is to be held, to assure that the contractor's plan meets the accessibility requirements of the contract clause. The Office of Facilities Engineering or the Office of Regional Operations for Facilities Engineering and Construction shall make a determination on the adequacy of the contractor's plan, and notify the project officer, in writing, within ten (10) working days of receiving the request from the project officer.

[45 FR 25395, Apr. 15, 1980]

§ 3-1.357 Confidentiality of information.

(a) General. In the performance of certain HHS contracts it is necessary for the contractor to generate data or be furnished data by the Government, which is about individuals, organizations, or Federal agency programs.

This section imposes a responsibility on contractors to handle in a prudent way disclosure of certain types of information which is not subject to the Privacy Act or HHS Human Subject regulations in 45 CFR Part 46. It contains provisions that are to be included in applicable requests for proposals (RFPs) and contracts. These describe the kinds of data to be generated by the contractor and/or data to be furnished by the Government that are considered confidential and how they should be treated.

(b) Policy. It is the policy of HHS to protect the personal interests of indi

viduals, corporate interests of nonGovernmental organizations, and the capacity of the Government to provide public services when information from or about individuals, organizations, or Federal agencies is provided to or obtained by contractors in performance of HHS contracts. This protection depends on the contractor's recognition and proper handling of such information.

(c) Application of the clause. The clause set forth in § 3-7.5027 should be used in contracts where the need exists for confidentiality of information provisions, as provided in § 31.357(a). Examples of situations where this clause may be appropriate include:

(1) Studies performed by the contractor, which generate information or involve Government-furnished information that is personally identifiable, such as medical records, vital statistics, surveys, and questionnaires.

(2) Contracts which involve the use of salary structures, wage schedules, proprietary plans or processes, or confidential financial information of organizations other than the contractor's.

(3) Studies or research which might result in preliminary or unvalidated findings which, upon disclosure to the public might create erroneous conclusions which if acted upon could threaten public health or safety.

With regard to protecting individuals, this regulation is not meant to regulate or control the method of selecting subjects and performing studies or experiments involving them.

These questions are dealt with in the HHS regulation entitled "Protection of Human Subjects," 45 CFR Part 46. If a system of records under contract or portions thereof are determined to be subject to the requirements of the Privacy Act, in accordance with §§ 1-1.327 and 3-1.327 and the HHS General Administration Regulations (45 CFR Part 5b), the Privacy Act procedures and clauses cited in those references shall be included in the contract, If the contract also involves confidential information as described herein which is not subject to the Privacy Act, the contract shall in

Iclude the clause set forth in § 3-7.5027 in addition to the Privacy Act clauses.

(d) Required clause. The clause set forth in § 3-7.5027 shall be included in any RFP and resultant contract(s) where it has been determined that confidentiality of information provisions may apply. Any RFP announcing the intent to include this clause in any resultant contract(s) shall indicate as specifically as possible the types of data which would be covered and requirements for handling such data.

[45 FR 32307, May 16, 1980]

§ 3-1.358 Prohibition against use of HHS funds to influence legislation or appropriations.

(a) This section provides guidance on the implementation of section 407 of the Title IV General Provisions of the Departments of Labor and Health, Education, and Welfare FY 1979 Appropriations Act (Pub. L. 95-480). Section 407, in part, prohibits the use of appropriated funds to pay the salaries or expenses of grantees and contractors, or their agents, incurred while engaging in activities to influence legislation or appropriations pending before Congress.

(b) The clause set forth in § 3-7.5028 implements this provision of section 407 and is to be included in every invitation for bids, request for proposals, contract, and small purchase funded in whole or in part under the FY 1979 Appropriations Act, or any succeeding appropriations act which contains the referenced provisions.

[45 FR 36400, May 30, 1980]

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