(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 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.

§ 3-1.150 Revision.

of

When an operating agency deems it essential that a regulation set forth in HEWPR be changed in the interest of program effectiveness, a proposed revision 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.

§ 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.

§ 3-1.206 Head of the procuring activity (HPA).

[44 FR 25454, May 1, 1979]

§ 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 Engineering, OS;

(c) Director, Office of Management Services, OS; and

(d) Principal Regional Officials. [44 FR 25454, May 1, 1979]

§ 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 Regulations, by the HEW 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]

§ 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 (OASH), 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.

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.

83-1.313 Records of contract actions.

83-1.313-50 General.

(a) All procuring activities within HEW 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 authorities upon which all decisions and actions were predicated.

[34 FR 5159, Mar. 13, 1969. Redesignated at 36 FR 22981, Dec. 2, 1971]

§ 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, processing, 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:

(Date of findings and decision) Subject: Decision disallowing request of

(Name of contractor)

Under contract No.

Date

To:

(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, Education, and Welfare. 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.

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 HEW 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]

§ 3-1.318-51 Disputes appeals.

(a) The Secretary has designated the ASBCA to hear, consider, and determine fully and finally appeals by con

tractors 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).

[40 FR 16319, Apr. 11, 1975)

§ 3-1.318-52 Preparation and processing of appeal files.

(a) Forwarding appeals. When a notice of appeal in any form has been received by the contracting officer, he shall endorse thereon the date of mailing (or date of receipt, if otherwise conveyed) and within 10 days shall forward said notice of appeal to the ASBCA with a copy to the Division of Business and Administrative Law, Office of General Counsel or cognizant Regional Attorney as appropriate. Following receipt by the Board of the original notice of appeal (whether through contracting officer or otherwise), the contractor, the contracting officer, and the Office of General Counsel, will be promptly advised of its receipt, and the contractor will be furnished a copy of the rules of the ASBCA.

an

(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 DHEW 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

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.

[40 FR 16319, Apr. 11, 1975, as amended at 41 FR 19634, May 13, 1976]

§ 3-1.327 Protection of the privacy of individuals.

[45 FR 15177, Mar. 10, 1980]

(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]

83-1.327-5 Procedures.

(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 example, the contract may require the contractor to completely destory 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