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8 3-1.101 Scope of subpart.
This subpart sets forth introductory information pertaining to the HHS Procurement Regulations (herein referred to as HHSPR), explains their purpose, authority under which they are issued, their relationship to the FPR System, applicability, method of issuance, exclusions, and arrangement. It also provides procedures for implementing and supplementing the FPR and the HHSPR, and sets forth devi. ation procedures.
to 41 U.S.C. 252. Unless specified otherwise, these regulations apply to procurements within and outside the United States. Requests for authority to deviate from the FPR and HHSPR shall comply with procedures set forth in $81-1.009 and 3-1.109. (36 FR 22980, Dec. 2, 1971, as amended at 39 FR 14340, Apr. 23, 1974)
8 3-1.102 Purpose.
The HHSPR are issued to establish uniform policies and procedures which conform with the Federal Procurement Regulations System. The objectives of the Federal Procurement Regulations System are: To provide greater uniformity in Government procurement policies and procedures applicable to the procurement of personal property and nonpersonal services (including construction); to provide for codification and publication of policies and procedures; and to make the policies and procedures readily available to procurement officials, and to the public, as applicable. 8 3-1.103 Authority.
The HHSPR are prescribed by the Assistant Secretary for Management and Budget under authority 5 U.S.C. 301 and Section 205(c) of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 486(c)), as delegated by the Secretary. The Assistant Secretary for Management and Budget has redelegated the authority to establish Departmental procurement policy and publish procurement regulations to the Deputy Assistant Secretary for Grants and Procurement. This authority is not redelegable. (44 FR 25454, May 1, 1979)
§ 3-1.105 Exclusions.
Certain HHS policies and procedures which come within the scope of this chapter nevertheless may be excluded from HHS Procurement Regulations. The exclusions are categorized as follows:
(a) Policy or procedure which is expected to be effective for a period of less than 6 months which shall be issued in procurement circular format.
(b) When the time will not permit preparation in final codified form, the policy or procedure shall be issued in procurement circular format. Conversion to permanent type HHSPR shall be made as soon as possible, in most instances, within 180 days.
(c) Issuances of a semipermanent nature which have limited applicability, such as those pertaining to a specific program or geographical area (e.g., metropolitan Washington, D.C.), shall be published as manual guides.
§ 3-1.106 Issuance.
(a) HHSPR implement, supplement, and in some instances may deviate from, the FPR. Implementing materi. al is that which expands upon or indi. cates the manner of compliance with related FPR material. Supplementing material is that for which there is no counterpart in the FPR. Deviating material is defined in § 1-1.009 of the FPR.
(b) Material published in the FPR which has Government-wide applicability becomes effective throughout HHS upon the effective date cited in the particular FPR material. Such material generally will not be repeated, paraphrased, or otherwise stated in HHSPR except to the extent necessary to implement or deviate from the FPR, HHSPR material will be effective on the date of the transmittal notice by which distributed unless oth
§ 3-1.104 Applicability.
The FPR and HHSPR apply to all HHS procurements of personal property, real property by lease, and nonpersonal services (including construction). The HHSPR applies to contracts and to agreements and other instruments (regardless of name) which are subject
erwise indicated in the respective transmittal notice.
(c) All HHSPR material deemed necessary for the general public to understand basic and significant HHS procurement policies and procedures will be published in the FEDERAL REGISTER and codified as Chapter 3 of Title 41, Code of Federal Regulations. The FEDERAL REGISTER and Title 41 of the Code of Federal Regulations may be purchased from the Superintendent of Documents, Government Printing Office, Washington, D.C. 20402. (36 FR 22980, Dec. 2, 1971, as amended at 38 FR 4667, Feb. 20, 1973)
menting Chapter 1. Part 50 and succeeding parts are reserved for Departmental and agency regulations that are not included in Chapter 1 or elsewhere in Chapter 3.
(c) Where material in the FPR requires no implementation or deviation, there is no corresponding number in the HHSPR. Thus, there are gaps in the HHSPR sequence of numbers where the FPR, as written, are applicable to HHS procurement.
8 3-1.107-3 Citation.
8 3-1.107 Arrangement.
The HHSPR will be cited in the same manner as the FPR are cited. Thus, this section, in referring to divisions of the FPR system, should be cited as “g 3-1.107-3 of Chapter 3." When the official Code of Federal Regulations citation is used, this section should be cited as “41 CFR 31.107-3." Any section of the HHSPR may be identified informally, for purposes of brevity, as “HHSPR" followed by the section number, such “HHSPR 3-1.107-3."
§ 3-1.107-1 General plan.
(a) The HHSPR conform with the Federal Procurement Regulations System with respect to divisional arrangements into parts, subparts, sections, subsections, and further subdivisions as necessary.
(b) As the FPR System pertains to the Department, it consists of (1) regulations published by the Administrator of General Services in Chapter 1-Federal Procurement Regulations, and (2) complementary Departmental regulations published in Chapter 3. In keeping with the DHHS Staff Manual System, such regulations will be published as integral parts of the HHS Procurement Regulations.
8 3-1.108 Implementation.
(a) Procurement policies and procedures which are necessary to implement, supplement, or deviate from the FPR will be issued in the HHSPR by the Director of Procurement and Materiel Management, OS-OASAM, when necessary to accomplish Departmentwide procurement objectives.
(b) Policies and procedures which are necessary to implement and supplement the FPR and the HHSPR at the operating agency level will be issued by the heads of procuring activity (see § 3-75.101) or their designees.
8 3-1.109 Deviation.
§ 3-1.107-2 Numbering.
(a) The FPR System of numbering permits the keying of similar subject matter throughout Chapters 1 and 3. Each section number is a combination showing to the left of the decimal point the chapter and part numbers, separated by a dash. To the right of the decimal point the subpart, section, and subsection numbers are indicated in that order. Thus, the Department, to complement the cost-plus-a-fixedfee contract provisions contained in Chapter 1, Part 1-3, Subpart 1-3.4, Section 04, Subsection 3 of the Federal Procurement Regulations (§ 1-3.4043), would assign the section number “3-3.404-3" to the complementary provisions.
(b) The first 49 parts of Chapter 3 are reserved for regulations imple
§ 3-1.109-1 Description.
As used in the HHSPR, the term "deviation" pertains to actions set forth in § 1-1.009-1 of this title.
§ 3-1.109-2 Procedure.
In the interest of establishing and maintaining uniformity to the greatest extent feasible, deviations from either the FPR or HHSPR shall be kept to a minimum and controlled as follows:
§ 3-1.150 Revision.
When an operating agency deems it essential that a regulation set forth in HHSPR be changed in the interest of program effectiveness, a proposed revi. sion of the regulation may be submitted to the Director of Procurement and Materiel Management, OASAM, for review and consideration. A detailed statement of justification shall be attached to each proposed revision submitted for review.
Subpart 3-1.2-Definition of Terms
SOURCE: 43 FR 48999, Oct. 20, 1978, unless otherwise noted.
8 3-1.200 Scope of subpart.
Definitions of commonly used procurement terms are in Subpart 1-1.2 of the Federal Procurement Regulations. This subpart sets forth the definitions of other procurement and administrative terms used throughout this chapter.
(a) When a change is considered necessary to a prescribed contract clause, request for approval shall be submitted in the manner set forth in § 316.5003.
(b) With the exception of paragraph (a) of this section, the head of each procuring activity or the official he has designated to act for him in authorizing a deviation from procurement regulations shall authorize a deviation from the FPR or HHSPR only after he obtains approval resulting from the submission of a request to the Director of Procurement and Materiel Management, OASAM, prepared in accordance with paragraphs (c) and (d) of this section.
(c) When an agency or staff office determines that a deviation is needed, it shall normally request the deviation in writing as far as possible in advance of need. In an exigency, an agency or staff office may request a deviation verbally, to be confirmed in writing as soon as circumstances permit.
(d) A deviation request shall set forth clearly and precisely:
(1) Nature of the needed deviation;
(2) Identification of the FPR or HHSPR from which the deviation is needed;
(3) Circumstances under which the deviation would be used;
(4) Intended effect of the deviation; (5) Time frame; and
(6) Reasons which will contribute to complete understanding and support of the requested deviation. Copies of pertinent background papers such as forms, or contractor's request, should accompany the deviation request.
(e) Where deviations from the FPR in classes of cases are considered necessary, requests for authority to deviate shall be submitted through administrative channels to the Director of Procurement and Materiel Management, OASAM, who will consider the submission jointly with the General Services Administration (GSA). Where compelling circumstances preclude the obtaining of prior concurrence of GSA, the Director of Procurement and Materiel Management, OASAM, may authorize a deviation and shall inform GSA of the deviation including the circumstances under which it was required.
8 3-1.206 Head of the procuring activity
(HPA). (44 FR 25454, May 1, 1979)
8 3-1.206-1 Designation.
The heads of the principal operating components have been designated "heads of procuring activities” along with the following officials:
(a) Deputy Assistant Secretary for Grants and Procurement, OS;
(b) Director, Office of Facilities En. gineering, OS;
(c) Director, Office of Management Services, OS; and
(d) Principal Regional Officials. (44 FR 25454, May 1, 1979)
8 3-1.206-2 Redelegation.
(a) The heads of procuring activities may redelegate their HPA authorities to the extent that redelegation is not prohibited by the terms of their respective delegations of authority, by law, by the Federal Procurement Reg. ulations, by the HHS Procurement Regulations, or by other regulations. To ensure proper control of redelegated procurement authorities, HPA'S shall maintain a file containing successive delegations of HPA authority through and including the contracting officer level.
(b) Personnel delegated responsibility for procurement functions must possess a level of experience, training, and ability commensurate with the complexity and magnitude of the procurement actions involved. (44 FR 25454, May 1, 1979)
FDA-Director, Division of Contracts and Grants Management, Office of the Associate Commissioner for Administration.
ADAMHA-Director, Division of Grants and Contracts Management, Office of the Administrator.
CDC—Director, Procurement and Grants Office, Office of the Center Director.
OASH-Director, Division of Materiel Management, Administrative Support Center, Office of Management.
OE-Director, Division of Grants and Procurement Management, Office of Management.
NIE-Chief, Contracts and Grants Management Division, Office of Administration and Management.
RO–Director, Regional Administrative Support Center in each Regional Office.
Subpart 3-1.3-General Policies
8 3-1.302 Procurement sources.
(36 FR 22981, Dec. 2, 1971)
8 3-1.302-1 General.
(a) Section 103-25.160 of the Materiel Management Manual sets forth the priority by which Department procurement activities shall utilize the various sources of supply, and procedures for requesting waivers to deviate from mandatory sources. [36 FR 22981, Dec. 2, 1971)
8 3-1.250 Principal official responsible for
procurement. The “principal official responsible for procurement” is defined in terms of certain organizational positions within the Office of Management Services (OMS-OS), Office of Facilities Engineering (OFE-OS), Social Security Administration (SSA), Health Care Financing Administration (HCFA), Office of Human Development Services (OHDS), National Institutes of Health (NIH), Health Services Administration (HSA), Health Resources Administration (HRA), Food and Drug Administration (FDA), Alcohol, Drug Abuse, and Mental Health Administration (ADAMHA), Center for Disease Control (CDC), Office of the Assistant Secretary for Health (DASH), Office of Education (OE), National Institute of Education (NIE), and the Regional Offices (RO's), as follows:
OMS-OS-Director, Division of Contract and Grant Operations, OMS-OASMB.
OFE-OS-Director, Office of Facilities Engineering, OASMB.
SSA-Director, Division of Contracting and Procurement, Office of Materiel Management, Office of Management and Administration.
HCFA-Chief, Contract Branch, Division of Contracts, Grants, and Administrative Services, Office of Management and Budget.
OHDS--Chief, Contracts Branch, Division of Grants and Contracts Management, Office of Administration and Management.
NIH-Director, Division of Contracts and Grants, Office of Administration (For procurements assigned to the Division of Contracts and Grants); Director, Division of Administrative Services, Office of Administration (For procurements assigned to the Division of Administrative Services).
HSA-Director, Office of Contracts and Grants, Office of Administration.
HRS-Director, Division of Grants and Contracts Management, Office of Administration.
§ 3-1.313 Records of contract actions.
8 3-1.313-50 General.
(a) All procuring activities within HHS shall maintain an official contract file for each contract issued. Files for small purchase transactions shall be established and maintained in accordance with Subparts 1-3.6 and 33.6.
(b) Operating agencies shall ensure that each contract file constitutes an independent record, documented to provide a complete chronology of all actions related to the contracting aspects of a procurement. Each contract file shall contain documents or other data sufficient to explain and support the rationale, judgments, and authori. ties upon which all decisions and actions were predicated. (34 FR 5159, Mar. 13, 1969. Redesignated at 36 FR 22981, Dec. 2, 1971)
8 3-1.318 Contracting officer's decision
under a disputes clause. 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, proc
essing, 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:
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)
(Date of findings and decision) Subject: Decision disallowing request of
§ 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).
(Name of contractor)
(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.