Health and Human Services Acquisition Regulation, 62396-62472 [E9-26948]

Agencies

• DEPARTMENT OF HEALTH AND HUMAN SERVICES

[Federal Register Volume 74, Number 227 (Friday, November 27, 2009)]
[Rules and Regulations]
[Pages 62396-62472]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-26948]



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Part II





Department of Health and Human Services





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48 CFR Chapter 3



Health and Human Services Acquisition Regulation; Final Rule

Federal Register / Vol. 74 , No. 227 / Friday, November 27, 2009 / 
Rules and Regulations

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

48 CFR Chapter 3


Health and Human Services Acquisition Regulation

AGENCY: Department of Health and Human Services.

ACTION: Issuance of direct final rule and opportunity for comment.

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SUMMARY: The Department of Health and Human Services (HHS) is revising 
its Federal Acquisition Regulation (FAR) Supplement--the HHS 
Acquisition Regulation (HHSAR) in its entirety to reflect statutory, 
FAR, and government-wide and HHS policy changes since the last revision 
to the HHSAR in December 2006.

DATES: Comments are due on or before December 28, 2009. If HHS does not 
receive adverse comments, this direct final rule will be effective on 
January 26, 2010.

ADDRESSES: You may submit comments, identified by docket number or RIN 
number and title, by any of the following four methods:
     Access the Federal eRulemaking Portal: [https://www.regulations.gov], and follow the instructions;
     Mail them to: Cheryl Howe, Procurement Analyst, U.S. 
Department of Health and Human Services, Office of the Assistant 
Secretary for Financial Resources, Office of Grants and Acquisition 
Policy and Accountability, Division of Acquisition, Room 336-E, Hubert 
Humphrey Building, 200 Independence Avenue, SW., Washington, DC 20201;
     E-mail them to cheryl.howe@hhs.gov; or
     Via facsimile to 202-690-8772.

Due to potential delays in receipt and processing of mail sent through 
the U.S. Postal Service, respondents are encouraged to submit comments 
electronically to ensure timely receipt. HHS cannot guarantee that 
comments mailed will be received before the comment closing date.
    If providing comments via e-mail, please include ``HHS Acquisition 
Regulation'' in the subject line of your e-mail message. Also, please 
include the full body of your comments in the text of the electronic 
message, as well as in an attachment, and include your name, title, 
organization, postal address, telephone number, and e-mail address in 
the text of the message.
    Instructions: All comments or submissions must include the agency 
name and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The policy is to make comments and other 
submissions available for public viewing on the Internet at https://regulations.gov. These submissions are published just as they are 
received without changes or deletions of information, including any 
personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Cheryl Howe, Procurement Analyst, U.S. 
Department of Health and Human Services, Office of the Assistant 
Secretary for Financial Resources, Office of Grants and Acquisition 
Policy and Accountability, Division of Acquisition, telephone (202) 
690-5552.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Department of Health and Human Services (HHS) is revising the 
entire HHSAR (48 CFR chapter 3, parts 301 through 370) to reflect 
changes since the last revision was published in the Federal Register 
in December 2006. The decision to revise the document in its entirety 
is based on the number of changes rather than their collective 
substance.
    The amendments generally fall into several categories: (1) Changes 
to make the document easier to read; (2) changes to reflect internal 
procedural matters which are administrative in nature and which will 
not have a major effect on the general public or on contractors or 
offerors supporting HHS acquisition programs; (3) changes which HHS 
previously issued on an interim basis (and posted on its publicly 
available Web site), following coordination with the HHS Operating 
Divisions' (OPDIVs) Heads of Contracting Activity; (4) changes that 
involve implementation of statutes or government-wide mandates enacted 
or issued since December 2006; (5) necessary conforming changes, such 
as addition of new or revised definitions; and (6) deletion of outdated 
material.
    The majority of the HHSAR revisions fall into the first category, 
i.e., they are editorial and include (1) using plain English, such as 
using active rather than passive voice; (2) standardizing terminology 
usage and formatting; (3) making minor adjustments to reflect current 
internal coordination procedures among departmental organizations; (4) 
citing current titles for various acquisition officials and 
organizations; and (5) providing a table that specifies the 
abbreviations and acronyms commonly used throughout the HHSAR.

II. Summary of Key Changes

    The following summarizes changes that involve implementation of 
statutes or government-wide mandates enacted or issued since December 
2006. The editorial changes are not individually summarized.

A. Federal-Wide and HHS Acquisition Certification Programs

    The HHSAR coverage in Subpart 301.6 of requirements for training 
and certification of acquisition officials, as well appointment of 
Contracting Officers, has been rewritten to reflect the HHS 
implementation of the Federal Acquisition Certification Programs for 
contracting staff (FAC-C) (based on guidance provided by the Office of 
Federal Procurement Policy (OFPP) in April, 2005); Contracting 
Officer's Technical Representatives (FAC-COTR) (based on the 
government-wide COTR certification standards established by OFPP in 
November, 2007), and Program/Project Managers (FAC-P/PM) (in response 
to the Services Acquisition Reform Act of 2003 (SARA), Public Law 108-
136, and the requirements established by OFPP in April, 2007).
    Implementation of the FAC-COTR program also has resulted in HHS 
changing the terminology it uses to describe the official who 
represents the requiring office after award. Where previously, HHS used 
only one term--Project Officer--to signify the person responsible for 
the pre-award and post-award responsibilities of the requiring office, 
the HHSAR now distinguishes between the pre-award responsibilities of 
the Project Officer and the post-award responsibilities of the COTR, 
even if the same individual performs both sets of responsibilities.
    These certification programs establish prerequisites for those who 
seek certification, as well as for others involved in the acquisition 
process. For example, HHS added a new section 301.605, Contracting 
Officer designation of Contracting Officer Technical Representative, to 
specify Contracting Officer responsibilities for designation of a COTR, 
including documenting that a proposed COTR meets certification 
requirements.
    Subpart 301 also addresses the HHS-unique simplified acquisition 
certification program (SAC-C); HHS-specific training requirements, 
including those for purchase card holders; and prerequisites and 
authorities for issuance of Contracting Officer warrants.

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B. Improvements in the Quality of Contract Data

    Consistent with the statutory requirements of the Federal Funding 
and Transparency Act of 2006 (Pub. L. 109-282) and the American 
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) and OFPP's 
initiative to improve the quality and timeliness of the award 
information stored in the Federal Procurement Data System--Next 
Generation, HHS is making efforts to improve the quality and timeliness 
of its contract data as reported in FPDS-NG, USA.Spending.gov, and 
Recovery.gov. To accomplish this, in Subpart 304.6, HHS has established 
clear lines of responsibility and accountability for the quality and 
timeliness of contract data.

C. Internal Initiatives To Provide Common Formats and Templates

    A new HHSAR Subpart--302.71--lists the areas where HHS has 
developed standards for documentation or approaches that provide 
consistency across the HHS OPDIVs. These internal business standards 
encompass: Acquisition planning, competition reporting, the 
organization and content of contract files, and market research 
notices.

D. Homeland Security Presidential Directive-12 (HSPD-12)

    A new Subpart 304.13, Personal Identity Verification, and section 
304.1300, Policy, have been added to implement HSPD-12 in HHS. The HHS 
implementation includes applicable solicitation provisions and contract 
clauses and (1) reflects the implementing guidance established by 
Office of Management and Budget Memoranda M-05-24 and M-06-18, Federal 
Information Processing Standard (FIPS) Publication 201, and Federal 
Acquisition Regulation (FAR) 4.13; and (2) provides a consistent and 
systematic approach to ensure the security of HHS facilities and 
information systems.

E. Competition and Acquisition Planning

    Consistent with government-wide efforts to increase competition, in 
Parts 306, 307, and 308, as applicable, HHS included HHSAR coverage 
concerning (1) appropriate use of sources sought notices (Research and 
development (R&D) and non-R&D and small businesses) and requests for 
information (2) content requirements for Justifications for Other Than 
Full and Open Competition (JOFOCs) and Limited Source Justifications 
(LSJs), (3) the requirement to use a standard JOFOC and LSJ format, and 
(4) the Contracting Officer's approval authority for JOFOCs and LSJs 
for acquisitions exceeding $100,000.
    HHS also--
--Specified that each HHS OPDIV competition advocate must prepare an 
annual Competition Advocate Report; and provided a standard format for 
the report's preparation.
--Updated the requirements for preparing an Annual Acquisition Plan and 
provided a standard template for the plan's preparation.
--Established a standard format for development of an Acquisition Plan; 
and provided procedures for the plan's review, coordination, and 
approval.
--Addressed preparation and approval of a LSJ for acquisitions awarded 
under the General Services Administration multiple award schedule 
program; and provided a standard format for preparing an LSJ.
--Addressed preparation and approval of an acquisition strategy for 
major information technology capital investments and, as applicable, 
other major investments.

F. Section 508 Electronic Information Technology Accessibility 
Standards

    In a new Subpart 315.70, HHS added coverage for acquisition of 
electronic information technology (EIT) products and services to 
implement the requirements of Section 508 of the Rehabilitation Act of 
1973 [29 U.S.C. 794(d)], as amended by the Workforce Investment Act of 
1998. In that subpart and, as a result of conforming changes in other 
parts of the HHSAR, HHS established a policy preference for 
commercially available products; indicated what must be addressed in 
solicitations, contracts, and orders, and added documentation and 
contract administration requirements that relate to the Section 508 
accessibility standards and requirements.

G. Multi-Year Contracting and Awards Made During a Continuing 
Resolution

    HHS added a new Subpart 317.1 to address its policy on multi-year 
contracting and amended Subpart 332.7 to provide coverage regarding 
awards made during a continuing resolution.

H. Multi-Agency and Intra-Agency Contracts

    HHS added a new subpart 317.70 to address its expectations 
regarding the use of intra-agency and multi-agency contracts. Such 
contracting has been the subject of audit scrutiny and has been 
addressed by OFPP. As a result, to avoid possible misuse, HHS is 
stating the conditions for use of such vehicles within HHS.

I. Green Purchasing Requirements

    HHS added a new subpart 323.71 to establish its requirements for 
green purchasing.

J. Earned Value Management

    HHS added a new Subpart 334.2 to implement the FAR coverage of 
earned value management (EVM), including: Use of full and partial EVM; 
use of solicitation provisions and contract clauses addressing 
documentation offerors must provide to demonstrate compliance with EVM 
system requirements; and criteria for use of pre-award or post-award 
integrated baseline reviews.

K. Other Changes

    Under section 331.101-70, Salary Rate Limitation, HHS provided a 
revised prescription for use of, and made minor revisions to, the 
Salary Rate Limitation clause in 352.231-70.
    HHS added the following coverage in Part 339 for information 
technology-related acquisition:
--A new subpart, 339.70, to address the use of General Services 
Administration Blanket Purchase Agreements for the acquisition of 
independent risk analysis services, and
--A new subpart 339.1 that provides standards for security 
configuration, encryption, and information security.

HHS revised the coverage in Part 333 related to internal handling of 
protests to specify revised legal review, concurrence, and approval 
procedures related to protests to HHS and the Government Accountability 
Office before and after award.
    HHS added language in section 319.270-1 concerning use of the 
mentor-protege program in HHS.
    HHS added a new subpart 322.8 to provide a contract clause 
regarding contractor cooperation in equal employment opportunity 
investigations.
    HHS added a new subpart 370.6 to provide guidance, including a 
contract clause, concerning conference funding, sponsorship, and 
disclaimers.
    HHS added a new subpart 370.7 to provide a solicitation provision 
and a contract clause to be used (i) in connection with the 
implementation of HIV/AIDS programs under the President's Emergency 
Plan for AIDS Relief; or (ii) when the contractor will receive funding 
under the United States Leadership Against HIV/AIDS, Tuberculosis and 
Malaria Act of 2003.

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III. Procedural Review Requirements

A. Executive Order 12866, Regulatory Planning and Review

    It has been determined that this revision of the HHSAR is not a 
significant regulatory action. The rule does not--
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect, in a material way, the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another Agency;
    (3) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
Executive Order 12866.

B. Unfunded Mandates Reform Act [2 U.S.C. 1501(7)]

    It has been certified that this revision of the HHSAR does not 
contain a Federal mandate that may result in the expenditure by State, 
local, and Tribal governments, in aggregate, or by the private sector, 
of $100 million or more in any one year.

C. Regulatory Flexibility Act (5 U.S.C. 601)

    The Regulatory Flexibility Act requires that a Federal agency 
prepare a regulatory flexibility analysis for any rule for which the 
agency is required to publish a general notice of rulemaking. This rule 
consists of a general statement of policies and procedures and amends 
HHS regulations for contracts. Each part of today's direct final rule 
is exempt from the requirement to publish a general notice of proposed 
rulemaking under the Administrative Procedure Act, 5 U.S.C. 553(a)(2). 
Therefore, the Regulatory Flexibility Act does not apply to this 
rulemaking.

D. Paperwork Reduction Act (44 U.S.C. 35)

    It has been determined that this rule does not impose any reporting 
or recordkeeping requirements under the Paperwork Reduction Act beyond 
those provided in the FAR.

E. Small Business Regulatory Enforcement Fairness Act

    As required by the Small Business Regulatory Enforcement Fairness 
Act, 5 U.S.C. 801, HHS has determined that this rule is not a major 
rule under 5 U.S.C. 801(2).

F. Executive Order 12988, Civil Justice Reform

    Each agency promulgating new regulations shall adhere to the 
following requirements: The agency's proposed regulations shall (1) be 
reviewed by the agency to eliminate drafting errors and ambiguity; (2) 
be written to minimize litigation; (3) provide a clear legal standard 
for affected conduct rather than a general standard, and (4) promote 
simplification and burden reduction. HHS determined that this rule 
meets these standards.

List of Subjects in 48 CFR Chapter 3, Parts 301-370

    Government procurement.

0
For the reasons stated in the preamble, HHS revises 48 CFR Chapter 3, 
parts 301 through 370, to read as follows:

Title 48--Federal Acquisition Regulations System

CHAPTER 3--HEALTH AND HUMAN SERVICES

SUBCHAPTER A--GENERAL

PART 301--HHS ACQUISITION REGULATION SYSTEM
PART 302--DEFINITIONS OF WORDS AND TERMS
PART 303--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST
PART 304--ADMINISTRATIVE MATTERS

SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING

PART 305--PUBLICIZING CONTRACT ACTIONS
PART 306--COMPETITION REQUIREMENTS
PART 307--ACQUISITION PLANNING
PART 308--REQUIRED SOURCES OF SUPPLIES AND SERVICES
PART 309--CONTRACTOR QUALIFICATIONS
PART 310--MARKET RESEARCH
PART 311--DESCRIBING AGENCY NEEDS
PART 312--ACQUISITION OF COMMERCIAL ITEMS

SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

PART 313--SIMPLIFIED ACQUISITION PROCEDURES
PART 314--SEALED BIDDING
PART 315--CONTRACTING BY NEGOTIATION
PART 316--TYPES OF CONTRACTS
PART 317--SPECIAL CONTRACTING METHODS

SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

PART 319--SMALL BUSINESS PROGRAMS
PART 322--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
PART 323--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
PART 324--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

PART 327--PATENTS, DATA, AND COPYRIGHTS
PART 328--BONDS AND INSURANCE
PART 330--COST ACCOUNTING STANDARDS
PART 331--CONTRACT COST PRINCIPLES AND PROCEDURES
PART 332--CONTRACT FINANCING
PART 333--PROTESTS, DISPUTES, AND APPEALS

SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING

PART 334--MAJOR SYSTEM ACQUISITION
PART 335--RESEARCH AND DEVELOPMENT CONTRACTING
PART 337--SERVICE CONTRACTING--GENERAL
PART 339--ACQUISITION OF INFORMATION TECHNOLOGY

SUBCHAPTER G--CONTRACT MANAGEMENT

PART 342--CONTRACT ADMINISTRATION

SUBCHAPTER H--CLAUSES AND FORMS

PART 352--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
PART 353--FORMS

SUBCHAPTERS I, J, K AND L ARE RESERVED

SUBCHAPTER M--HHS SUPPLEMENTATIONS

PART 370--SPECIAL PROGRAMS AFFECTING ACQUISITION

SUBCHAPTER A--GENERAL

PART 301--HHS ACQUISITION REGULATION SYSTEM

Subpart 301.1--Purpose, Authority, and Issuance
Sec.
301.101 Purpose.
301.103 Authority.
301.106 Office of Management and Budget Approval under the Paperwork 
Reduction Act.

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Subpart 301.2--Administration
301.270 Executive Committee for Acquisition.
Subpart 301.4--Deviations From the FAR
301.403 Individual deviations.
301.404 Class deviations.
301.470 Procedure.
Subpart 301.6--Career Development, Contracting Authority, and 
Responsibilities
301.602 Contracting Officers.
301.602-3 Ratification of unauthorized commitments.
301.603 Selection, appointment, and termination of appointment of 
Contracting Officers.
301.603-1 General.
301.603-2 Selection and appointment.
301.603-3 Interim appointments.
301.603-4 Termination of appointments.
301.603-70 Delegation of Contracting Officer responsibilities.
301.603-71 Waivers to warrant standards.
301.603-72 FAC-C and HHS SAC certification requirements.
301.603-73 Additional HHS training requirements.
301.603-74 Requirement for retention of FAC-C and HHS SAC 
certification.
301.604 Training and certification of Contracting Officers' 
Technical Representatives.
301.604-70 General.
301.604-71 HCA authorities and responsibilities.
301.604-72 Requirements for certification maintenance.
301.604-73 Certification policy exception.
301.604-74 Additional COTR training requirements.
301.605 Contracting Officer designation of Contracting Officer 
Technical Representative.
301.606 Training requirements for Project Officers.
301.606-70 General.
301.606-71 Project Officer training.
301.606-72 Delegation of authority to HCAs.
301.606-73 Training policy exception.
301.606-74 Additional Project Officer training requirements.
301.607 Certification of Program and Project Managers.
301.607-70 General.
301.607-71 FAC-P/PM levels and requirements.
301.607-72 Applicability.
301.607-73 Certification waivers.
301.607-74 Certification transfers.
301.607-75 Maintenance of FAC-P/PM certification.
301.607-76 FAC-P/PM application process.
301.607-77 Input and maintenance of FAC-P/PM information.
301.607-78 Governance.
301.607-79 Contracting Officer designation of a Program/Project 
Manager as the Contracting Officer's Technical Representative.
301.608 Training Requirements for Purchase Cardholders, Approving 
Officials, and Agency/Organization Program Coordinators.

    Authority: 5 U.S.C. 301; 40 U.S.C. 486(c).

Subpart 301.1--Purpose, Authority, and Issuance


301.101  Purpose.

    (a) The Department of Health and Human Services (HHS) Acquisition 
Regulation (HHSAR) establishes uniform HHS acquisition policies and 
procedures that conform to the Federal Acquisition Regulation (FAR) 
System.
    (b) The HHSAR implements FAR policies and procedures and provides 
additional policies and procedures that supplement the FAR.
    (c) The HHSAR contains HHS policies and procedures that govern the 
acquisition process or otherwise control acquisition relationships 
between HHS' contracting activities and contractors.


301.103  Authority.

    (b) The Assistant Secretary for Financial Resources (ASFR) 
prescribes the HHSAR under the authority of 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.
    (c) The HHSAR is issued in the Code of Federal Regulations (CFR) as 
Chapter 3 of Title 48, Department of Health and Human Services 
Acquisition Regulation. It may be referenced as ``48 CFR Chapter 3.''


301.106  Office of Management and Budget approval under the Paperwork 
Reduction Act.

    (a) The Paperwork Reduction Act of 1980 (44 U.S.C 3501 et seq.) 
imposes a requirement on Federal agencies to obtain approval from the 
Office of Management and Budget (OMB) before collecting the same 
information from 10 or more members of the public.
    (b) The following OMB control numbers apply to the information 
collection and recordkeeping requirements contained in this chapter:

------------------------------------------------------------------------
                                                             OMB control
                     HHSAR segment No.                           No.
------------------------------------------------------------------------
315.4......................................................    0990-0139
342.7101...................................................    0990-0131
352.233-70.................................................    0990-0133
352.270-1..................................................    0990-0129
352.270-2..................................................    0990-0129
352.270-3..................................................    0990-0129
352.270-5..................................................    0990-0130
352.270-8..................................................    0990-0128
352.270-9..................................................    0990-0128
370.1......................................................    0990-0129
370.2......................................................    0990-0129
------------------------------------------------------------------------

    (c) The Contracting Officer shall insert the clause in 352.201-70, 
Paperwork Reduction Act, in solicitations, contracts, and orders that 
include a requirement to collect the same information from 10 or more 
persons.

Subpart 301.2--Administration


301.270  Executive Committee for Acquisition.

    (a) The Associate Deputy Assistant Secretary for Acquisition 
(Associate DAS for Acquisition) has established the Executive Committee 
for Acquisition (ECA) to facilitate the planning, development, and 
implementation of HHS acquisition policies and procedures and to share 
successful acquisition practices.
    (b) The ECA consists of members and alternates from the following 
organizations:
    (1) ASFR/Office of Grants and Acquisition Policy and Accountability
    (OGAPA)/Division of Acquisition (DA).
    (2) Agency for Healthcare Research and Quality (AHRQ).
    (3) Biomedical Advanced Research and Development Authority (BARDA).
    (4) Centers for Disease Control and Prevention (CDC).
    (5) Centers for Medicare and Medicaid Services (CMS).
    (6) Food and Drug Administration (FDA).
    (7) Health Resources and Services Administration (HRSA).
    (8) Indian Health Service (IHS).
    (9) National Institutes of Health (NIH).
    (10) Program Support Center (PSC).
    (11) Substance Abuse and Mental Health Services Administration 
(SAMHSA).
    (c) The Associate DAS for Acquisition is the Chair of the ECA. The 
Chair will call all meetings and direct all ECA activities.

Subpart 301.4--Deviations From the FAR


301.403  Individual deviations.

    Contracting activities shall prepare requests for individual 
deviations to either the FAR or HHSAR in accordance with 301.470.


301.404  Class deviations.

    Contracting activities shall prepare requests for class deviations 
to either the FAR or HHSAR in accordance with 301.470.


301.470  Procedure.

    (a) Contracting activities shall prepare deviation requests in 
memorandum form and forward them through the Head of the Contracting 
Activity (HCA) to the Associate DAS for Acquisition. The Associate DAS 
for Acquisition (non-delegable) is the official authorized to approve 
all deviation requests.

[[Page 62400]]

Contracting activities may request a deviation telephonically or by e-
mail in an exigent situation, but shall confirm the request by 
memorandum as soon as possible.
    (b) A deviation request shall clearly set forth the--
    (1) Nature of the deviation, including what contract(s)/
contractor(s) is involved;
    (2) Identification of the FAR or HHSAR citation from which the 
deviation is needed;
    (3) Circumstances under which the deviation will be used;
    (4) Intended effect of the deviation;
    (5) Period of applicability;
    (6) Rationale for the deviation (Note: The Contracting Officer 
shall include a copy of pertinent background papers, such as a 
contractor's request, as part of the deviation request.); and
    (7) Suggested wording for the deviation, if applicable.

Subpart 301.6--Career Development, Contracting Authority, and 
Responsibilities


301.602  Contracting Officers.


301.602-3  Ratification of unauthorized commitments.

    (b) Policy.
    (1) The Government is not bound by agreements with, or contractual 
commitments made to, prospective contractors by individuals who do not 
have delegated contracting authority. However, an authorized official 
may later ratify and execute otherwise proper contracts that were made 
by individuals without contracting authority or by Contracting Officers 
in excess of their delegated authority. The ratification shall be in 
the form of a written document that clearly states that ratification of 
a previously unauthorized act is intended.
    (2) The HCA is the official authorized to ratify an unauthorized 
commitment--but see paragraph (b)(3) of this section.
    (3) The HCA may redelegate ratification authority for actions up to 
$100,000 to the Chief of the Contracting Office (CCO). No other 
redelegations are authorized.
    (c) Limitations.
    (5) The concurrence of legal counsel concerning an unauthorized 
commitment is optional. If a contracting activity determines that a 
legal review is necessary, the HCA or CCO shall coordinate the request 
for ratification with the Office of General Counsel (OGC), General Law 
Division (GLD).
    (e) Procedures.
    (1) The individual who is responsible for the unauthorized 
commitment shall provide the reviewing Contracting Officer all records 
and documents concerning the commitment and a complete written 
statement of facts, including a description of the requirement; the 
estimated or agreed upon price; the funds citation; an explanation of 
why the contracting office was not used and why the proposed contractor 
was selected; a list of other sources considered; and a statement as to 
whether the contractor has commenced work or an item has been 
delivered.
    (2) The Contracting Officer shall review the submitted material 
and, if the Contracting Officer determines that the ratification 
request has merit, prepare it for ratification. The Contracting Officer 
shall forward the ratification document and related materials to the 
HCA or CCO, as appropriate, with any comments or information which the 
approving official should consider in evaluating the ratification 
request.
    (3) If the HCA or CCO approves the ratification request, the 
Contracting Officer shall issue a purchase order or contract, as 
appropriate, upon return of the approved ratification document and 
file.


301.603  Selection, appointment, and termination of appointment of 
Contracting Officers.


301.603-1  General.

    (a) The HCA (non-delegable) shall select, appoint, and terminate 
the appointment of Contracting Officers--i.e., those individuals who 
are authorized to obligate the Government to the expenditure of funds 
for contracts and orders with dollar values that exceed (or are 
expected to exceed) the micro-purchase threshold. The procedures for 
selecting and appointing Contracting Officers apply to HHS employees. 
HCAs may not issue HHS Contracting Officer warrants to contractor 
personnel. OPDIVs shall follow local procedures in the event that the 
signature of another authorized official, in addition to that of the 
HCA, is required to appoint or terminate the appointment of Contracting 
Officers.
    (b) The HCA shall use Standard Form (SF) 1402, ``Certificate of 
Appointment,'' (also known as a warrant) to appoint personnel, whether 
in the General Schedule (GS) 1102 series or other series, as 
Contracting Officers. The SF 1402 shall indicate the Contracting 
Officer's warrant level--i.e., maximum dollar signature authority 
(e.g., $1 million or ``unlimited'') and any other limitations or 
restrictions. The HCA shall make changes to a Contracting Officer 
appointment (other than a termination of an appointment as provided in 
301.603-4) by issuing a revised SF 1402. FAR 1.603-1 prescribes the 
requirements for preparing and maintaining Contracting Officer 
warrants.
    (c) Before an HCA may appoint an individual as a Contracting 
Officer, the individual must be certified in accordance with either the 
Federal Acquisition Certification in Contracting (FAC-C) program or the 
HHS Simplified Acquisition Certification (SAC) program, as appropriate, 
at the level required for the warrant authority requested. See 301.603-
72 and the HHS Contracting Workforce Training and Certification 
Handbook.
    (d) The dollar amount of an individual transaction determines 
whether a Contracting Officer has the authority to sign it in 
accordance with the delegated authority specified on the SF 1402. For 
new or follow-on awards, the dollar amount of an individual transaction 
is the amount obligated at the time of contract or order award plus any 
potential option amounts or future funding amounts established by the 
transaction. However, under an existing contract or order, when an 
option is subsequently exercised or a contact or order is otherwise 
modified to add funding, the dollar amount of the modification 
(individual transaction) determines whether a Contracting Officer has 
the necessary delegated authority to sign it.
    (e) For individuals that will exercise acquisition authorities 
(other than solely purchase card authorities) at or below the micro-
purchase threshold, the HCA may--
    (1) Use a document other than the SF 1402, such as a memorandum, 
that indicates a maximum dollar signature authority for individual 
transactions; and
    (2) Determine training requirements for individuals who will 
exercise acquisition authorities at dollar levels below the micro-
purchase threshold level.


301.603-2  Selection and appointment.

    Contracting activities shall provide nominations for appointment of 
Contracting Officers through appropriate acquisition channels to the 
HCA for review. The HCA shall appoint an individual as a Contracting 
Officer only when a valid organizational need is demonstrated and after 
considering such factors as volume of actions, complexity of work, and 
structure of the requesting organization. The HCA shall also ensure 
that a Contracting Officer candidate meets the FAC-C or HHS SAC 
certification requirements, as

[[Page 62401]]

appropriate. Consistent with FAR 1.603-2, the HCA shall determine the 
documentation required when the requested appointment and authority 
will not exceed the micro-purchase threshold.


301.603-3  Interim appointments.

    If it is essential to appoint an individual as a Contracting 
Officer who does not yet fully meet the FAC-C or HHS SAC certification 
requirements for the signature authority sought, the HCA (non-
delegable) may make an interim appointment for up to 2 years. If an 
extension of time has been granted, but the individual does not 
complete the certification requirements by the extended date, the HCA's 
approval for the interim appointment will automatically terminate on 
that date.


301.603-4  Termination of appointments.

    The HCA shall terminate or revoke Contracting Officer appointments 
in accordance with FAR 1.603-4.


301.603-70  Delegation of Contracting Officer responsibilities.

    (a) Contracting Officers may re-delegate their acquisition 
responsibilities that do not involve the obligation or deobligation of 
funds, but involve the expenditure of previously obligated funds (such 
as approval of contractor scientific meeting travel and subcontract 
consent) to acquisition staff (for example, those in the GS-1100 
series) by means of a written memorandum that clearly delineates the 
delegation and its limits. See 301.604 for responsibilities that 
Contracting Officers may delegate to technical personnel.
    (b) Contracting Officers may designate individuals as ordering or 
approving officials to make purchases or place/approve orders under 
blanket purchase agreements (BPAs), indefinite-delivery, indefinite 
quantity (IDIQ) contracts, or other pre-established mechanisms. 
Ordering officials are not Contracting Officers.


301.603-71  Waivers to warrant standards.

    There may be an unusual circumstance that requires issuance of a 
warrant to an individual who does not fully meet the FAC-C or HHS SAC 
certification program requirements. Contracting activities shall 
provide any request for a waiver of the FAC-C program requirements and 
policies in writing to the Senior Procurement Executive (SPE), through 
the HCA, for review and approval. The SPE (non-delegable) will either 
approve or disapprove in writing the request for waiver. The HCA (non-
delegable) may approve or disapprove a waiver of the HHS SAC program 
requirements.


301.603-72  FAC-C and HHS SAC certification requirements.

    (a) The FAC-C certification program is available to all acquisition 
staff who are/will be involved as Contracting Officers or Contract 
Specialists in acquisitions exceeding the simplified acquisition 
threshold. Personnel who, as part of prior certification programs, have 
completed some or all of the required training or have attained 
certification thereunder are not required to re-take training courses, 
but shall follow FAC-C training requirements when considering 
additional or required core training, if needed. See 301.603-74 for 
information regarding retention of certification, including the 
requirement to earn continuous learning points (CLPs). FAC-C 
certification also does not apply to--
    (1) The SPE;
    (2) Senior level officials responsible for delegating acquisition 
authority;
    (3) Personnel who are not in the GS-1102 series whose warrants are 
used to acquire emergency goods and services; or
    (4) Personnel who are not in the GS-1102 series whose warrants are 
so limited as to be outside the scope of this program, as determined by 
the Chief Acquisition Officer (CAO). (Note: The HHS CAO has determined 
that individuals with warrants which are limited to simplified 
acquisitions are deemed to be outside the scope of the FAC-C program.)
    (b) HHS does not require personnel with Contracting Officer 
warrants issued prior to January 1, 2007 to be FAC-C certified unless 
they are seeking a change in authority on or after that date. 
Individuals applying for a new Contracting Officer warrant or an 
increase in warrant authority on or after January 1, 2007, regardless 
of GS series, must be FAC-C certified at the level appropriate for the 
warrant authority sought. To obtain an unlimited warrant, FAC-C Level 
III certification is required. (Note: New Contracting Officer warrants 
are defined in the Office of Federal Procurement Policy's (OFPP's) FAC-
C memorandum, dated January 20, 2006, as warrants issued to employees 
for the first time at a department or agency.)
    (c) The FAC-C certification is based on three sets of requirements: 
Education, training, and experience, and the requirements are 
cumulative--i.e., an individual must meet the requirements of each 
previous certification level before attaining a higher level 
certification. The FAC-C certification requirements, including 
additional HHS-specific training requirements for certain types of 
acquisitions, are specified in the HHS Contracting Workforce Training 
and Certification Handbook.
    (d) HHS SAC certification is based on three sets of requirements: 
Training, experience, and satisfactory performance rating. Personnel 
who are involved in the award of simplified acquisitions must meet the 
appropriate HHS SAC certification requirements. (Note: While personnel 
who are FAC-C certified are not required to obtain HHS SAC 
certification in order to award simplified acquisitions, they should 
obtain appropriate training before doing so.) The HHS SAC certification 
requirements, including additional HHS-specific training requirements 
for certain types of acquisitions, are specified in the HHS Contracting 
Workforce Training and Certification Handbook.


301.603-73  Additional HHS training requirements.

    HHS acquisition personnel are required to complete, as applicable, 
the additional training requirements specified below. These courses may 
be used as electives for the purpose of satisfying FAC-C requirements 
or as continuous learning for maintenance of FAC-C or SAC 
certifications.
    (a) Earned value management training. Effective January 1, 2010, 
all personnel in the GS-1102 series who are responsible for, or may 
become responsible for, the award or administration of any contract to 
which earned value management (EVM) is applied pursuant to 334.201(a) 
or (b) must successfully complete an EVM training course before they 
commence administration of the contract or are authorized to award the 
contract. After completion of the initial course, a refresher course is 
required every 2 years. This course is in addition to the training 
requirements for FAC-C certification at the specified levels. 
Determination of course suitability shall be made by the Operating 
Division (OPDIV) HCA, in conjunction with HHS' Office of the Chief 
Information Officer (OCIO) or Office of Facilities Management and 
Policy (OFMP), as appropriate. To be eligible, the basic and refresher 
courses must each be 8 hours or more in length.
    (b) Performance based acquisition training. Effective January 1, 
2010, all GS-1102s, who award or administer service contracts, are 
required to complete a Performance-Based Acquisition (PBA) course prior 
to assuming such responsibilities. Refresher training in PBA is 
required

[[Page 62402]]

every 4 years. To be eligible, a course must be 8 hours or more in 
length. Determination of course suitability shall be made by the HCA.
    (c) Federal appropriations law training. Effective January 1, 2010, 
all GS-1102s and GS-1105s are required to complete both HHS 
University's classroom-based and on-line Federal appropriations law 
course, by January 1, 2011 (for current employees) and within 1 year of 
entering on duty (for new employees). Employees are required to take 
the HHS University on-line course as refresher training every year. 
Determination of course equivalency shall be made by the HCA.
    (d) Green purchasing training. Effective January 1, 2010, all GS-
1102s and GS-1105s are required to complete green purchasing training 
by January 1, 2011 (for current employees) and within 1 year of 
entering on duty (for new employees). Refresher training is required 
every 2 years. To be eligible, a course must be 4 hours or more in 
length. Determination of course suitability shall be made by the HCA.
    (e) Section 508 training. Effective January 1, 2010 (or when the 
HHS Office on Disability so requires), all GS-1102s, GS-1105s, and GS-
1106s who award or administer acquisitions that exceed the micro-
purchase threshold and involve electronic information technology (EIT) 
products or services (subject to Section 508 of the Rehabilitation Act 
of 1973 and pertinent HHSAR provisions), must complete all applicable 
training courses sponsored by the HHS Office on Disability. For 
information on frequency, timing, and duration of the training 
requirement, personnel shall consult with the HHS Office on Disability.
    (f) Training policy exceptions.
    (1) EVM training. In the event that there is an urgent requirement 
for a Contracting Officer/Contract Specialist to award or administer a 
project to which EVM will be applied, and the individual has not yet 
met the EVM training requirement, the HCA (non-delegable) may authorize 
the individual to perform the position duties, provided that the 
individual meets the training requirement within 9 months from the date 
of assignment to the contract. If the individual does not complete the 
training requirement within 9 months, the HCA's approval for the 
individual's assignment to the contract will automatically terminate on 
that date. The Contract Specialist is not required to take the class as 
long as the Contract Specialist is working under the direction of a 
Contracting Officer who has taken an EVM course.
    (2) Other additional HHS training. The HCA (non-delegable) may 
grant a time extension of up to 9 months to an individual to complete 
the PBA, Federal appropriations law, green purchasing, and Section 508 
training requirements, including completion of refresher training. If 
the individual does not complete the training requirement within the 
extension period, the HCA's approval will automatically terminate on 
that date.


301.603-74  Requirement for retention of FAC-C and HHS SAC 
certification.

    To maintain FAC-C certification, all warranted Contracting 
Officers, regardless of series, as well as Contract Specialists, must 
earn 80 CLPs every 2 years. To maintain HHS SAC certification, all 
individuals with delegated Contracting Officer authority, including 
those in the GS-1102, GS-1105, GS-1106, and non-1100 series, must earn 
a minimum of 40 hours (CLPs) every 2 years after completing all 
mandatory training requirements. FAC-C and HHS SAC certification will 
expire if the CLPs are not earned every 2 years (from the date of 
initial certification or re-certification) and, if applicable, may 
result in a loss of warrant authority. (Note: The certification 
programs' continuous learning requirement applies to all applicable 
personnel, including those who were certified under prior certification 
programs.)


301.604  Training and certification of Contracting Officers' Technical 
Representatives.


301.604-70  General.

    In accordance with the Federal Acquisition Certification for 
Contracting Officers' Technical Representatives (FAC-COTR) program, HHS 
has established a training program for certification and designation of 
personnel as COTRs--see HHS' Federal Acquisition Certification for 
Contracting Officers' Technical Representative Program Handbook, dated 
January 2009, for information on the methods for earning FAC-COTR 
certification. See also 302.101(c) for further information regarding 
the definition of a COTR and when designation of a COTR is appropriate. 
All references to COTRs also apply to their alternates.


301.604-71  HCA authorities and responsibilities.

    (a) HCAs are authorized to determine (1) equivalencies for the 
Basic Contracting Officer's Technical Representative Course; (2) course 
prerequisites; and (3) approve completion of CLP continuous learning 
activities, education, and training for maintenance of COTR 
certification. This authority does not apply to EVM training--see 
301.603-73. Course equivalencies must meet the Federal Acquisition 
Institute's (FAI's) required COTR competencies. HCAs may re-delegate 
the authorities in (1) and (2) to OPDIV Acquisition Career Managers 
(ACMs) or other comparable officials.
    (b) In addition to the authorities specified in 301.604-71(a), HCAs 
or their designees (except where the authority is shown as non-
delegable) are responsible for--
    (1) Reviewing a candidate's qualifications to be a COTR;
    (2) Granting, suspending, denying, and revoking COTR certifications 
and their continuance;
    (3) Authorizing (non-delegable) an individual to perform COTR 
duties on an interim basis for up to 90 days--see 301.604-73; and
    (4) Determining (non-delegable) on a case-by-case basis whether to 
postpone (for up to 90 days) withdrawal of any interim COTR delegation 
for failure of a candidate to qualify for certification--see 301.604-
73.


301.604-72  Requirements for certification maintenance.

    Maintaining HHS FAC-COTR certification requires at least 40 
relevant CLPs every 2 years. See Appendix A of OFPP's FAC-COTR 
memorandum, dated November 26, 2007, and HHS' Federal Acquisition 
Certification for Contracting Officers' Technical Representative 
Program Handbook, dated January 2009, for information on CLPs.


301.604-73  Certification policy exception.

    (a) In the event that an individual who is not currently certified 
under HHS' FAC-COTR program is urgently required to serve as a COTR, 
the head of the sponsoring program office (Program Manager) or designee 
(e.g., the immediate supervisor) may request, and the HCA (non-
delegable) may authorize, the individual to perform the designated 
duties on an interim basis for up to 6 months, provided that--
    (1) The individual agrees to become certified during that period 
and provides evidence of training course registration; and
    (2) Prior to assignment to the contract, the individual meets with 
the cognizant Contracting Officer to discuss the role and specific 
responsibilities of a COTR and the interrelationships, as applicable, 
among the Project Officer, Contracting Officer, Program/Project 
Manager, and COTR functions.
    (b) If an extension has been granted, but the individual does not 
complete

[[Page 62403]]

the training by the extended date, the HCA's approval for the 
individual's assignment to the contract will automatically terminate on 
that date.


301.604-74  Additional COTR training requirements.

    HHS COTRs are required to complete, as applicable, the training 
requirements specified below.
    (a) Earned value management training. Effective January 1, 2010, 
all COTRs assigned to any contract to which EVM is applied pursuant to 
334.201(a) or (b) must successfully complete an EVM training course 
before assuming their COTR duties. In conjunction with ASFR/OGAPA/DA, 
HHS' OCIO [for information technology (IT)] and OFMP (for construction/
facilities), are authorized to designate appropriate EVM courses. At 
least 8 hours of EVM training is required every 2 years.
    (b) Performance-based acquisition training. Effective January 1, 
2010, all COTRs assigned to a service contract are required to 
successfully complete a PBA course. To be eligible, a course must be 8 
hours or more in length. Determination of course suitability shall be 
made by the HCA or designee. At least 8 hours of refresher training in 
PBA is required every 4 years.
    (c) Federal appropriations law training. Effective January 1, 2010, 
all COTRs are required to successfully complete HHS University's 
classroom-based or on-line Federal appropriations law course within 3 
years after an initial certification is issued. COTRs are required to 
take the HHS University on-line appropriations law course as refresher 
training every 4 years.
    (d) Green purchasing training. Effective January 1, 2010, all COTRs 
are required to complete green purchasing training within the first 
certification period. The individual's immediate supervisor shall make 
the determination of course suitability. At least 4 hours of refresher 
training is required every 4 years.
    (e) Training policy exceptions.
    (1) EVM training. In the event that there is an urgent requirement 
for a COTR to administer a contract to which EVM will be applied, and 
the individual has not yet met the EVM training requirement, the HCA 
(non-delegable) may authorize the individual to perform the position 
duties, provided that the individual meets the training requirement 
within 9 months from the date of assignment to the contract. If the 
individual does not complete the training requirement within 9 months, 
the HCA's approval for the individual's assignment to the contract will 
automatically terminate on that date. In addition, during any extension 
period, the COTR must work under the direction of a COTR, or Program/
Project Manager who has taken an EVM course.
    (2) Other additional HHS training. The HCA (non-delegable) may 
grant a time extension of up to 9 months to a COTR to complete the PBA, 
Federal appropriations law, and green purchasing training requirements, 
including completion of refresher training. If the individual does not 
complete the training requirement within the extension period, the 
HCA's approval will automatically terminate on that date.


301.605  Contracting Officer designation of Contracting Officer 
Technical Representative.

    The Contracting Officer shall ensure that a COTR candidate is 
currently certified under HHS' FAC-COTR program before delegating 
authority to that individual to act as a COTR. Even if an individual is 
FAC-COTR-certified, a candidate becomes a COTR only when a Contracting 
Officer provides in writing the authorities the individual may exercise 
for a specified contract or order. Authority for such designations 
rests solely with the Contracting Officer. The Contracting Officer 
shall retain in the contract or order file the individual's active FAC-
COTR certificate. In the event that the HCA has granted an exception--
see 301.604-73, the Contracting Officer shall include the HCA's 
approval in the file.


301.606  Training requirements for Project Officers.


301.606-70  General.

    HHS has established a program for training personnel for 
certification and designation as Project Officers. See 302.101(g) for 
further information regarding the definition of a Project Officer and 
when designation of a Project Officer is appropriate. All references to 
Project Officers also apply to their alternates. Program Managers or 
their designees are authorized to designate individuals to serve as 
Project Officers. (Note: If an individual will also serve as the COTR 
for a proposed project, the individual shall comply with the training 
certification requirements for COTRs--see 301.604.)


301.606-71  Project Officer training.

    Before an individual may perform the duties of a Project Officer, 
including development of an Acquisition Plan (AP) or other acquisition 
request documentation--see 307.71, for a proposed project, the Program 
Manager or designee shall designate an individual as a Project Officer 
in writing by means of a memorandum to the Project Officer candidate 
with a copy to the cognizant Contracting Officer. A Project Officer 
must successfully complete HHS University's Basic Contracting Officer's 
Technical Representative Course or equivalent and any OPDIV-specific 
course prerequisites. The Project Officer must provide a course 
completion certificate to the Contracting Officer with any AP or other 
acquisition request documentation submitted. See HHS guidance on the 
training requirement for technical proposal evaluators in 
315.305(a)(3)(ii).


301.606-72  Delegation of authority to HCAs.

    HCAs are authorized to determine equivalencies for the Basic 
Contracting Officer's Technical Representative Course and any OPDIV-
specific course prerequisites. This authority may be re-delegated to 
OPDIV acquisition ACMs or other comparable officials.


301.606-73  Training policy exception.

    (a) In the event that an individual who has not successfully 
completed the required training course is urgently required to serve as 
a Project Officer, the Program Manager or designee may authorize the 
individual to perform the designated duties on an interim basis for up 
to 6 months, provided that--
    (1) The individual agrees to take the Basic Contracting Officer's 
Technical Representative course during that period and provides 
evidence of course registration; and
    (2) The individual meets, prior to assignment to the project, with 
the cognizant Contracting Officer to discuss the specific role and 
responsibilities of a Project Officer and the interrelationships, as 
applicable, among the Project Officer, Contracting Officer, Program/
Project Manager, and COTR functions.
    (b) If an extension of time has been granted, but the individual 
fails to complete the training by the extended date, the Program 
Manager's or designee's approval for the individual's assignment to the 
project will automatically terminate on that date.


301.606-74  Additional Project Officer training requirements.

    HHS Project Officers are required to complete, as applicable, the 
training requirements specified below.
    (a) Earned value management training. All Project Officers assigned 
to any contract project to which EVM is applied pursuant to 334.201(a) 
or (b) must successfully complete an EVM

[[Page 62404]]

training course before assuming their Project Officer duties. In 
conjunction with ASFR/OGAPA/DA, HHS' OCIO (for IT) and OFMP (for 
construction/facilities) are authorized to designate appropriate EVM 
courses.
    (b) Performance-based acquisition training. Effective January 1, 
2010, all Project Officers assigned to a service contract are required 
to successfully complete a PBA course. To be eligible, a course must be 
8 hours or more in length. Determination of course suitability shall be 
made by the HCA or designee. At least 8 hours of refresher training in 
PBA is required every 4 years.
    (c) Federal appropriations law training. Effective January 1, 2010, 
all Project Officers are required to successfully complete HHS 
University's classroom-based or on-line Federal appropriations law 
course. Project Officers are required to take the HHS University on-
line appropriations law course as refresher training every 4 years.
    (d) Green purchasing training. Effective January 1, 2010, all 
Project Officers are required to complete green purchasing training. 
The individual's immediate supervisor shall make the determination of 
course suitability. At least 4 hours of refresher training is required 
every 4 years.
    (e) Training policy exceptions.
    (1) EVM training. In the event that there is an urgent requirement 
to assign a Project Officer to a contract project to which EVM will be 
applied, and the individual has not yet met the EVM training 
requirement, the HCA (non-delegable) may authorize the individual to 
perform the position duties, provided that the individual meets the 
training requirement within 3 months from the date of submission of the 
AP or other acquisition request documentation to the contracting 
office. If the individual does not complete the training requirement 
within the extension period, the HCA's approval for the individual's 
assignment to the project will automatically terminate on that date. In 
addition, during any extension period, the Project Officer must work 
under the direction of a Project Officer, COTR, or Program/Project 
Manager who has taken an EVM course.
    (2) Other additional HHS training. The HCA (non-delegable) may 
grant a time extension of up to 9 months to a Project Officer to 
complete the PBA, Federal appropriations law, and green purchasing 
training requirements, including completion of refresher training. If 
the individual does not complete the training requirement within the 
extension period, the HCA's approval will automatically terminate on 
that date.


301.607   Certification of Program and Project Managers.


301.607-70   General.

    In accordance with the Federal Acquisition Certification--Program 
and Project Managers (FAC-P/PM) program, HHS has established a 
certification program for Program or Project Managers. See HHS' Federal 
Acquisition Certification--Program and Project Managers Handbook (P/PM 
Handbook) for information on the methods for earning FAC-P/PM 
certification.


301.607-71   FAC-P/PM levels and requirements.

    (a)(1) The FAC-P/PM certification program specifies three different 
levels of certification, depending on the core competency, training, 
and experience required to manage different types of acquisitions--
    (i) Entry/Apprentice--Level I;
    (ii) Mid-level/Journeyman--Level II; and
    (iii) Senior/Expert--Level III.
    (2) Each FAC-P/PM certification level is independent of the 
others--i.e., applicants for the Senior/Expert level need not have been 
certified at the Mid-level/Journeyman or Entry/Apprentice levels. 
General and specific core competencies, training, and required 
experience vary by certification level. (Note: Individuals certified 
under the FAC-P/PM program meet the general competency and experience 
standards for P/PM certification. However, IT Program and Project 
Managers should attain/demonstrate IT-specific P/PM requirements. See 
Appendix C, Federal Acquisition Certification--Program and Project 
Managers--Information Technology Technical Competencies, in the P/PM 
Handbook for additional information.
    (b)(1) Competencies. An applicant can satisfy the competency 
requirements through:
    (i) Successful completion of training;
    (ii) Completion of comparable education or certification programs;
    (iii) Demonstration of knowledge, skills, and abilities; or
    (iv) Any combination of these three.
    (2) The FAI describes the following three sets of general core 
competencies on its Web site:
    (3) General Business Competencies: Includes decision-making, 
interpersonal skills, oral communication, team-building, and writing.
    (4) Technical Competencies: Includes contracting, financial 
management, quality assurance, and risk management.
    (5) Essential Competencies and Proficiencies: Includes management 
processes, systems engineering, test and evaluation, contracting, and 
business.
    (6) Specific core competencies also apply to the three 
certification levels. See Chapter 2, Federal Acquisition 
Certification--Program and Project Managers--Requirements and 
Performance Accountability, in the P/PM Handbook for additional 
information.
    (c) Training. (1) Suggested training includes coursework, varying 
from 16-24 hours in duration, in:
    (i) Acquisition;
    (ii) Project management;
    (iii) leadership and interpersonal skills;
    (iv) Government-specific training; and
    (v) Earned value management and cost estimating.
    (2) The depth of the training for each course required may vary by 
certification level.
    (d) Experience. Experience requirements vary by certification 
level. For example, for certification at the Entry/Apprentice--Level I, 
at least 1 year of project management experience within the last 5 
years is required. The Mid-level/Journeyman--Level II requires at least 
2 years of program or project management experience within the last 5 
years. The Senior/Expert--Level III requires at least 4 years of 
program and project management experience on Federal projects within 
the last 5 years.
    (e) Additional OPDIV guidance. OPDIVs may issue supplemental 
guidance and requirements for selection and assignment of Program and 
Project Managers and require additional skills and competencies to meet 
organizational or mission needs. However, OPDIVs may not reduce the 
requirements specified in the P/PM Handbook.


301.607-72   Applicability.

    (a) The FAC-P/PM certification prerequisites and continuous 
learning requirements apply to all HHS employees who seek to obtain a 
FAC-P/PM certification. Although obtaining a FAC-P/PM certification 
qualifies employees to serve as a Program or Project Manager, it does 
not ensure their selection or designation as such. (Note: Contractors 
and their employees are not eligible to be certified or to serve as 
Program or Project Managers.)
    (b) Mandatory certification is limited to major and non-major IT 
and construction capital investment acquisitions. Consistent with OFPP 
guidance, HHS requires FAC-P/PM Level III certification for Program and

[[Page 62405]]

Project Managers responsible for major IT and construction capital 
investments--i.e., those requiring preparation of an OMB Exhibit 300, 
HHS Form 300, or equivalent. An individual must obtain FAC-P/PM Level 
III certification within 1 year from the date of being assigned to such 
a major capital investment. Also, HHS requires that an individual 
obtain FAC-P/PM Level II or I certification for non-major IT and 
construction--i.e., tactical or supporting, capital investments, 
respectively, within 2 years from the date of being assigned to such a 
non-major capital investment. See Appendix A, Federal Acquisition 
Certification--Program and Project Managers--HHS Projects and Programs 
with Associated Certification Levels, in the P/PM Handbook for 
additional information regarding major and non-major IT and 
construction capital investments. FAC-P/PM certification for other 
types of investments [e.g., advanced research and development (R & D)] 
is encouraged, but is not mandatory.


301.607-73   Certification waivers.

    (a) Waivers to certification requirements may be approved in 
certain situations. Waivers for additional time to complete 
certification requirements are not necessary for the first year 
following an assignment to a major IT or construction capital 
investment and for 2 years following an assignment to a non-major 
capital investment. For waivers beyond those periods (for up to 1 
additional year), the HHS Chief Information Officer (CIO) (for IT 
programs and projects) and the Deputy Assistant Secretary for 
Facilities Management and Policy (DASFMP) (for construction programs 
and projects) are delegated authority to approve waiver requests. The 
HHS CAO is the only individual authorized to approve waiver requests 
for additional time beyond the initial 1-year waiver period.
    (b) Approval of a waiver request does not relieve an individual 
from meeting the certification requirements. Also, unlike FAC-P/PM 
certifications, waivers issued by other Federal departments and 
agencies do not transfer to HHS, since a waiver is agency-specific.


301.607-74   Certification transfers.

    (a) HHS recognizes and accepts FAC-P/PM certifications issued by 
other Federal departments and agencies. In addition, HHS complies with 
FAI determinations as to which certifications by organizations outside 
the Federal government are eligible for full or partial consideration 
under FAC-P/PM. See FAI's Web site, and Chapter 3, Federal Acquisition 
Certification--Program and Project Managers--Application and 
Certification Procedures, in the P/PM Handbook for additional 
information.
    (b) A certification transfer should not be initiated w