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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: January 3, 2005

SUBJECT: Department of Health and Human Services Acquisition Regulation (HHSAR); Miscellaneous Amendments

SOURCE: Federal Register, January 3, 2005, Vol. 70, No. 1, page 38

AGENCIES: Department of Health and Human Services (HHS)

ACTION: Direct Final Rule

SYNOPSIS: HHS is amending the HHSAR to make various administrative and editorial changes, updating and removing outdated references, and bringing it into conformance with the Federal Acquisition Regulation (FAR).

EDITOR'S NOTE: The HHSAR is Chapter 3 of Title 48 of the Code of Federal Regulations (CFR). It is available on the Internet at http://www.knownet.hhs.gov/acquisition/hhsar/.

DATES: This direct final rule will become effective March 4, 2005, unless significant adverse comments are received by February 2, 2005. HHS reserves the "direct final rule" procedure for rules it believes are noncontroversial. If HHS receives any adverse comments on the contents of the direct final rule, HHS will withdraw the rule.

ADDRESSES: Comments on this direct final rule may be submitted by e-mail to Tracey.Mock@hhs.gov or by mail to Tracey Mock, DHHS, OS, ASAM, Office of Acquisition Management and Policy, 200 Independence Avenue, SW, Room 324E, Washington, DC 20201. Cite "48 CFR 3" in the subject line.

FOR FURTHER INFORMATION CONTACT: Tracey Mock, Office of Acquisition.

SUPPLEMENTAL INFORMATION: The amendments being made to the HHSAR concern internal procedural matters which are administrative in nature, and will not have a major effect on the general public or on contractors or offerors supporting HHS. The majority of the amendments concern HHS organizational title changes resulting from reorganizations, such as the Health Care Financing Administration (HCFA) being renamed the Centers for Medicare & Medicaid Services by the Secretary of Health and Human Services in June 2001.

The following are some of the more significant changes being made to the HHSAR by this direct final rule:

• Throughout the HHSAR, replace:
  
  
  • "Assistant Secretary for Management and Budget" with "Assistant Secretary for Administration and Management";
    
    
  • "Health Care Financing Administration" with "Centers for Medicare & Medicaid Services";
    
    
  • "Deputy Assistant Secretary for Grants and Acquisition Management" with "Director, Office of Acquisition Management and Policy";
    
    
  • "HCFA" with "CMS";
    
    
  • "ASMB" with "ASAM";
    
    
  • "DASGAM" with "Director, OAMP" and
    
    
  • "OAM" with "Division of Acquisition Policy (DAP)".
  
  Also, "Administration for Children and Families" and "ACF" are removed wherever it appears.
  
  
• In HHSAR 302.101, Definitions, in the definition of "Head of the Contracting Agency (HCA)," replace "FDA -- Director, Policy, Evaluation and Support Staff, Office of Facilities, Acquisition and Central Services" with "FDA -- Director, Office of Acquisitions & Grant Services."
  
  
• HHSAR 303.104-7, Violations or Possible Violations of the Procurement Integrity Act, which provides procedures on reporting Procurement Integrity Act violations or possible violations.
  
  
• Paragraph (b) of HHSAR 304.7001, Numbering Acquisitions, is revised to specify the numbering schemes for contracts and task and delivery orders.
  
  
• HHSAR 306.501, Requirement, is amended to replace:
  
  
  • "FDA -- Director, Office of Facilities, Acquisition, and Central Services" with "FDA -- Chief, Office of Shared Services";
    
    
  • "HCFA -- Director, Office of Internal Customer Support" with "CMS -- Chief Operating Officer"; and
    
    
  • "NIH -- (R&D) Director, Office of Extramural Research (Other than R&D) -- Director, Office of Intramural Research" with "NIH -- Senior Advisor for Policy, Office of Extramural Research (R&D) and Senior Advisor to the Deputy Director for Intramural Research (Other than R&D)."
  
  
• To HHSAR 307.170-2, Training Course Prerequisites, is added paragraph (a)(3), which states, "Project Officers on HHS projects for which HHS or OMB [Office of Management and Budget] requires an Exhibit 300 [under OMB Circular A-11 [Preparation, Submission and Execution of the Budget], Part 7 [Planning, Budgeting, Acquisition, and Management of Capital Assets]] must successfully complete either HHS' 'Early Warning Project Management System Workshop' or an equivalent Earned Value Management course (see paragraph [HHSAR] 307.170(c))." (EDITOR'S NOTE: Current paragraph (a)(3) is redesignated as paragraph (a)(4)).
  
  
• The last sentence of paragraph (a)(6) of HHSAR 307.7105, Format and Content [of Requests for Contract], is amended to add "veteran-owned" and "service-disabled veteran-owned" to the small business categories that must be addressed.
  
  
• HHSAR 317.204, Contracts, is added. For contracts not subject to the Service Contract Act, it specifies that "the total of the basic and option periods shall not exceed 10 years in the case of services and the total of the basic and option quantities shall not exceed the requirement for 5 years in the case of supplies. These limitations do not apply to information technology contracts."
  
  
• HHSAR 333.215-70, Additional Contract Clause, is added. It specifies the use of HHSAR 352.333-7001, Choice of Law (Overseas), in solicitations and contracts when contract performance will be outside the United States, its possessions, and Puerto Rico, except as otherwise provided for in a government-to-government agreement. HHSAR 352.333-7001 states, "This contract shall be construed and interpreted in accordance with the substantive laws of the United States of America. By the execution of this contract, the contractor expressly agrees to waive any rights to invoke the jurisdiction of local national courts where this contract is performed and agrees to accept the exclusive jurisdiction of the United States Armed Services Board of Contract Appeals and the United States Court of Federal Claims for hearing and determination of any and all disputes that may arise under the Disputes clause of this contract."
  
  
• Paragraphs (b) and (f) of HHSAR 352.224-70, Confidentiality of Information, are removed because they were found to be unconstitutional and unenforceable in Board of Trustees of Leland Stanford Junior Univ. v. Sullivan. The paragraphs placed restrictions on the release of "findings of studies or research, which have the possibility of adverse effects on the public or the federal agency."

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953.

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