[Federal Register Volume 71, Number 9 (Friday, January 13, 2006)]
[Proposed Rules]
[Pages 2444-2451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-302]
[[Page 2443]]
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Part VI
Department of Housing and Urban Development
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48 CFR Parts 2404, 2408 et al.
Amendments to HUD Acquisition Regulations (HUDAR); Proposed Rule
Federal Register / Vol. 71, No. 9 / Friday, January 13, 2006 /
Proposed Rules
[[Page 2444]]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
48 CFR Parts 2404, 2408, 2415, 2437, 2439, and 2452
[Docket No. FR-4705-P-01; HUD-2006-0002]
RIN 2535-AA26
Amendments to HUD Acquisition Regulations (HUDAR)
AGENCY: Office of the Chief Procurement Officer, HUD.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend HUD's Acquisition Regulations
(HUDAR) to implement miscellaneous changes. The proposed revisions
include improvements in clarity and uniformity in the Department's
acquisition regulations.
DATES: Comment Due Date: March 14, 2006.
ADDRESSES: Interested persons are invited to submit comments regarding
this rule to the Regulations Division, Office of General Counsel,
Department of Housing and Urban Development, 451 Seventh Street, SW.,
Room 10276, Washington, DC 20410-0500. Interested persons may also
submit comments electronically through the Federal electronic
rulemaking portal at: www.regulations.gov. Facsimile (FAX) comments are
not acceptable. All communications must refer to the docket number and
title. All comments and communications submitted will be available,
without revision, for public inspection and copying between 8 a.m. and
5 p.m. weekdays at the above address. Due to security measures at the
HUD Headquarters building, an advance appointment to review the public
comments must be scheduled by calling the Regulations Divisions at
(202) 708-3055 (this is not a toll-free number). Copies of the public
comments are also available for inspection and downloading at
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Frederick Graves, Policy and Field
Operations Division, Office of the Chief Procurement Officer (Seattle
Outstation), Department of Housing and Urban Development, Seattle
Federal Office Building, 909 First Avenue, Seattle, WA 98104-1000,
telephone (206) 220-5259, FAX (206) 220-5247 (these are not toll-free
numbers). Persons with hearing or speech impairments may access that
number via TTY by calling the toll-free Federal Information Relay
Service at (800) 877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
The uniform regulation for the procurement of supplies and services
by Federal departments and agencies, the Federal Acquisition Regulation
(FAR), was promulgated on September 19, 1983 (48 FR 42102). The FAR is
codified in title 48, chapter 1, of the Code of Federal Regulations.
HUD promulgated its regulation to implement the FAR on March 1, 1984
(49 FR 7696).
The HUDAR (title 48, chapter 24 of the Code of Federal Regulations)
is prescribed under section 7(d) of the Department of HUD Act (42
U.S.C. 3535(d)); section 205(c) of the Federal Property and
Administrative Services Act of 1949 (40 U.S.C. 486(c)); and the general
authorization in FAR 1.301. The most recent publication of the HUDAR as
a final rule was on January 21, 2000 (65 FR 3571, 65 FR 3575).
II. This Proposed Rule
This proposed rule would amend the HUDAR to provide for greater
uniformity in departmental contracts. The following describes HUD's
proposed changes.
Section 2404.701 is added to prescribe the use of a non-disclosure
clause to protect the Department from unauthorized disclosure of
protected information (as the term is defined in the clause) provided
by HUD to contractors under HUD contracts.
A new section 2408.404 is added to prescribe selection factors for
use in placing competitive task orders for services under the General
Services Administration (GSA) schedule contracts when the order is
expected to exceed $500,000.
In Section 2415.304, a new paragraph (c) is added to prescribe the
use of a solicitation provision containing the Department's small
business goals and a selection factor to evaluate offerors' (other than
offerors that are small businesses) proposed subcontracting with small
businesses. The evaluation is conducted using the offerors' proposed
small business plan submitted pursuant to HUDAR 2452.219-70.
Subparagraph (d)(2) is removed to reflect departmental policy
eliminating the requirement that numerical scoring be used to evaluate
all technical proposals. Subparagraph (d)(1) is renumbered as paragraph
(d).
Section 2415.305 is revised to better define technical
unacceptability of offers.
In section 2437.110, paragraph (b) is removed and redesignated as
2408.802-70 to correspond to the FAR. Redesignated paragraph (e) is
revised to change the title and simplify the prescription for the use
of clause 2452.237-75. Redesignated paragraph (f) is revised to change
the title of clause 2452.237-77.
Section 2439.107 is revised to clarify the applicability of clause
2452.239-70.
A new section 2452.204-70 is added to implement departmental policy
concerning the non-disclosure by contractors of information that HUD
provides to them. HUD believes that the additional contract clause is
needed to ensure that contractors do not make unauthorized disclosures
without the Department's consent.
A new section 2452.208-70 is added to prescribe criteria to be used
when competing task orders under GSA Federal Supply Schedule contracts.
These factors include criteria related to the contractors' proposed
efforts in meeting the Department's small business subcontracting
goals. HUD will revise these goals annually to reflect new
governmentwide goals promulgated by the U.S. Small Business
Administration and any additional changes to goal amounts that HUD
determines to be warranted.
Numerous revisions are made to section 2452.209-72, including:
Greater clarification of activities that may result in default;
referencing the definition of organizational conflict of interest at
FAR subpart 9.5; and adding a prohibition against contractors
evaluating their own work or that of other entities without the
Contracting Officer's approval.
Section 2452.215-70 is revised to explicitly state HUD's right to
contact any or all of the references provided to it by an offeror for
the purposes of assessing the offeror's past performance and HUD's
right to use other relevant past performance information not provided
by the offeror.
A new section 2452.215-71 is added to include a small business
subcontracting source selection factor in solicitations for contracts
that are expected to exceed $500,000 and contain the provision at
2452.219-70, Small Business Subcontracting Plan Compliance. The
solicitation provision also notifies potential offerors of the
Department's current small business subcontracting goals (see also
2452.208-70 above). [Note: The former 2452.215-72 is being consolidated
into this provision to eliminate redundancies between them.]
Section 2452.216-70 is revised to correct the prescriptive
reference and clarify its usage in cost-plus-award-fee contracts and to
insert instructions concerning payment that were previously located in
section 2452.216-71.
In section 2452.216-74, the prescriptive text citation is
corrected,
[[Page 2445]]
and the last sentence of paragraph (b) and subparagraphs (b)(1)-(b)(3)
are made into a new paragraph (c), an alternate clause to be used for
cost-plus-award-fee contracts.
Section 2452.237-75 is revised to comply with Federal Information
Processing Standards 201, Homeland Security Presidential Directive
(HSPD-12), and OMB Memorandum M-05-24 with regard to granting
contractor employees physical access to Government facilities.
Section 2452.239-70 is revised to comply with Federal Information
Processing Standards 201, Homeland Security Presidential Directive
(HSPD-12), and OMB Memorandum M-05-24, with regard to granting
contractor employees access to federal government systems. It revises
the definition of information technology resources covered by the
clause, changes the background clearance forms required, clarifies the
responsibility of contractors in identifying employees who should
obtain a background clearance, and permits access by non-U.S. nationals
who have been lawfully admitted to the United States for permanent
residence. Reviewers are encouraged to comment on the content of the
revised clause.
III. Findings and Certifications
Paperwork Reduction Act Statement
The information collection requirements proposed in this rule, as
described in the table below, have been submitted to the Office of
Management and Budget for review under section 3507(d) of the Paperwork
Reduction Act of 1995 (44 U.S.C. Chapter 35). The information
collection requirements for the HUDAR are currently approved by OMB
under control number 2535-0091.
HUD's estimate of the total reporting and recordkeeping burden that
will result from the collection of information is as follows:
Reporting and Recordkeeping Burden:
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Est. average
Number of time for Est. annual
Section reference parties Frequency of requirement requirement burden (hrs.)
(hrs.)
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HUDAR:
2452.208-70......................... 700 1/annum.................... 8.0 5,600
2452.209-70......................... 250 1/annum.................... 0.5 125
2452.209-72......................... 5 1/annum.................... 1.0 5
2452.215-70......................... 275 1/annum.................... 80.0 22,000
2452.215 ALT II..................... 25 1/annum.................... 40.0 1,000
2452.216-72......................... 5 4/annum.................... 2.0 40
2452.216-78 ALT II.................. 1,500 1/annum.................... 4.0 6,000
2452.219-70......................... 150 1/annum.................... 0.5 75
2452.237-70......................... 150 1/annum.................... 1.0 150
2452.237-75......................... 500 1/annum.................... 1.0 500
2452.239-70......................... 500 1/annum.................... 1.0 500
2452.242-71 (plan).................. 40 1/annum.................... 8.0 320
2452.242-71 (reports)............... 40 12/annum................... 6.0 2,880
HUD 770............................. 2 1/annum.................... 0.5 1
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Total Reporting and ......... ........................... .............. 39,196
Recordkeeping Burden (Hours).
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In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments
from members of the public and affected agencies concerning this
collection of information to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated
collection techniques or other forms of information technology; e.g.,
permitting responses to be submitted electronically.
Interested persons are invited to submit comments regarding the
information collection requirements in this proposal. Comments must be
received within 30 days from the date of this proposal. Comments must
refer to the proposal by name (HUDAR) and must be sent to:
HUD Desk Officer, Office of Management and Budget, New Executive Office
Building, Washington, DC 20503, Facsimile: (202) 395-6974; and
Lillian Deitzer, Department of Housing and Urban Development, Room 8001
PL, 451 Seventh Street, SW., Washington, DC 20410-0001, E-mail:
[email protected], Telephone: (202) 708-2374. This is not a
toll-free number.
Unfunded Mandates Reform Act
The Secretary has reviewed this rule before publication and by
approving it certifies, in accordance with the Unfunded Mandates Reform
Act of 1995 (2 U.S.C. 1532), that this rule does not impose a Federal
mandate that will result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
This proposed rule makes technical changes to existing contracting
procedures and does not make any major changes that would significantly
impact businesses. Accordingly, the undersigned certifies that this
rule will not have a significant economic impact on a substantial
number of small entities. Notwithstanding HUD's determination that this
rule will not have a significant economic impact on a substantial
number of small entities, HUD specifically invites comments regarding
less burdensome alternatives to this rule
[[Page 2446]]
that will meet HUD's objectives as described in this preamble.
Environmental Impact
This proposed rule does not direct, provide for assistance or loan
and mortgage insurance for, or otherwise govern or regulate real
property acquisition, disposition, leasing, rehabilitation, alteration,
demolition, or new construction, or establish, revise, or provide for
standards for construction or construction materials, manufactured
housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this
proposed rule is categorically excluded from environmental review under
the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
either imposes substantial direct compliance costs on State and local
governments and is not required by statute, or the rule preempts state
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. This proposed rule would not have
federalism implications and would not impose substantial direct
compliance costs on State and local governments or preempt state law
within the meaning of the Executive Order.
List of Subjects
48 CFR Parts 2404, 2408, 2415, 2437, and 2452
Government procurement.
48 CFR Part 2439
Computer technology, Government procurement.
For the reasons discussed in the preamble, HUD proposes to amend 48
CFR chapter 24 as set forth below:
PART 2404--ADMINISTRATIVE MATTERS
1. The authority citation for part 2404 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
2. Add subpart 2404.7 and section 2404.701 to read as follows:
Subpart 2404.7--Contractor Records Retention
2404.701 Contract clause.
The Contracting Officer shall insert the clause at 2452.204-70,
Non-disclosure of Information, in all solicitations and contracts when
it is expected or likely that the contractor will have access to, or be
provided, protected information as defined in the clause.
PART 2408--REQUIRED SOURCES OF SUPPLIES AND SERVICES
3. Add 2408.404 and subpart heading to read as follows:
Subpart 2408.4--Federal Supply Schedules
2408.404 Selection Factors for Competitive GSA Task Orders.
(b) The Contracting Officer shall use a provision substantially the
same as the provision at 2452.208-70 when placing task orders for
services under General Services Administration schedule contracts when
the order is expected to exceed $500,000. The Contracting Officer shall
insert the percentage goals in effect at the time quotations are
requested from schedule contractors. The provision may be tailored to
suit the specific task order competition, but small business
participation shall be evaluated in every competition.
PART 2415--CONTRACTING BY NEGOTIATION
4. The authority citation for part 2415 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 41 U.S.C. 253; 42 U.S.C. 3535(d).
5. Revise section 2415.304 to read as follows:
2415.304 Evaluation factors.
(c) The Contracting Officer shall insert the provision at 2452.215-
71 in all solicitations exceeding $500,000 that include the provision
at 2452.219-70, Small Business Subcontracting Plan Compliance. The
Contracting Officer shall insert the percentage goals in effect at the
time offers are solicited.
(d) The solicitation shall state the basis for the source selection
decision as either ``lowest price technically acceptable'' (LPTA)
process or ``tradeoff'' process (as defined at FAR subpart 15.1).
6. Revise section 2415.305(a)(3) to read as follows:
2415.305 Proposal evaluation.
(a) * * *
(3) Technical evaluation. The TEP shall rate each proposal based on
the evaluation factors specified in the solicitation.
(i) A proposal shall be considered unacceptable if
(A) It does not represent a reasonable initial effort to address
the essential requirements of the RFP or clearly demonstrates that the
offeror does not understand the requirements; or
(B) It contains major deficiencies or omissions that discussions
with the offeror could not reasonably be expected to cure.
(ii) Under the tradeoff process, predetermined threshold levels of
technical acceptability for proposals shall not be employed.
(iii) A technical evaluation report that complies with FAR
15.305(a)(3) shall be prepared and signed by the technical
evaluator(s), furnished to the Contracting Officer, and maintained as a
permanent record in the official procurement file in accordance with
established departmental procedures.
PART 2437--SERVICE CONTRACTING
7. The authority citation for part 2437 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
8. Amend section 2437.110 as follows:
a. Remove paragraph (b);
b. Redesignate paragraphs (c), (d), (e), and (f) as (b), (c), (d),
and (e), respectively;
c. Revise newly redesignated paragraphs (d) and (e) to read as
follows:
2437.110 Solicitation provisions and contract clauses.
* * * * *
(d) The Contracting Officer shall insert the clause at 2452.237-75,
Access to HUD Facilities, in all solicitations and contracts where
contractor employees, including subcontractors and consultants, will be
required to work in or have access to any HUD facilities. If contractor
employees will also be required to have access to HUD information
systems, see 2439.107.
(e) The Contracting Officer shall insert the clause at 2452.237-77,
Observance of Legal Holidays and Closure of HUD Facilities, in all
solicitations and contracts where contractor personnel will be working
on-site in any HUD office.
PART 2439--ACQUISITION OF INFORMATION TECHNOLOGY
9. The authority citation for part 2439 reads as follows:
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
10. Revise section 2439.107(a) to read as follows:
2439.107 Contract clauses.
(a) The Contracting Officer shall insert the clause at 2452.239-70,
Access to HUD Systems, in solicitations and contracts when the contract
will require contractor employees, including subcontractors and
consultants, to have
[[Page 2447]]
access to any HUD information system(s) as defined in the clause. If
contractor employees will also be required to have physical access to
HUD facilities, see 2437.110.
* * * * *
PART 2452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
11. The authority citation for part 2452 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 42 U.S.C. 3535(d).
12. Add section 2452.204-70 to read as follows:
2452.204-70 Non-disclosure of Information.
As prescribed in 2404.701, insert the following clause:
NON-DISCLOSURE OF INFORMATION (* * * 2006)
(a) Definitions. As used in this clause--
Contractor means employees, subcontractors, consultants,
affiliates, partners, joint ventures, and team members with which
the contractor is associated.
Protected information means government procurement-sensitive
information (e.g., acquisition planning, source selection),
proprietary business information provided to the Government by other
parties (e.g., other contractors), and personal information
protected by the Privacy Act (e.g., Social Security Numbers).
(b) The contractor shall not release, disclose, or use in any
way that would permit or result in release or disclosure to any
party outside the government any information described in paragraph
(a) provided to the contractor by the government, unless:
(1) The Contracting Officer has given prior written
authorization for its release or disclosure; or
(2) The information is otherwise in the public domain prior to
the date of release.
(c) The prohibition in paragraph (b) includes information in any
medium (e.g., paper document, electronic file, audio or video tape,
film, or oral communication). The prohibition also covers
information provided by the government whether or not in its
original form (e.g., where the information has been included in
contractor-generated work or where it is discernible from materials
incorporating or based upon such information).
(d) The prohibition contained in this clause has no expiration
date.
(e) The contractor shall ensure that contractor personnel who
are provided protected information as defined in this clause execute
a non-disclosure agreement prior to obtaining such information.
(End of clause)
13. Add section 2452.208-70 to read as follows:
2452.208-70 Selection of Contractor for Task Orders Under GSA Schedule
Contracts.
As prescribed in 2408.404(b), insert a provision substantially the
same as the following:
SELECTION OF CONTRACTOR FOR TASK ORDERS UNDER GSA SCHEDULE CONTRACTS (*
* * 2006)
(a) General. Any eligible contractor may compete for the
proposed task order. In awarding the task order, HUD will evaluate
the contractor's offer using the selection factors in paragraph (c),
and select the contractor that presents the overall best value to
the federal government, considering those factors. For the purposes
of evaluating offers, the combined relative merit of the offer as
evaluated in accordance with the non-price factors and the small
business subcontracting participation factor shall be considered
more important than the evaluated cost/price.
(b) Small business subcontracting participation.
(1) Consistent with the intent of the Small Business Act, HUD is
strongly committed to ensuring that small businesses, veteran-owned
small businesses, service-disabled veteran-owned small businesses,
HUBZone small businesses, small disadvantaged businesses, and women-
owned small businesses have maximum opportunities to participate in
subcontracting with HUD prime contractors. Therefore, contractors
shall provide the maximum practicable subcontracting opportunities
to those small businesses. Contractors shall address in their offer
the manner in which they plan to assist the Department in achieving
this goal. As part of the evaluation for award, HUD will consider
the contractor's statement addressing how it proposes to meet the
small business participation goal for the task order. As part of the
performance requirements under the task order, the contractor will
be required to submit a semi-annual report on subcontracting
achievements.
(2) In support of its commitment, HUD has established the
following goals, expressed as a percentage of the total value of
each contract action (including task orders, modifications, and
options):
(i) Total Small Business--up to [Contracting Officer insert
percentage] percent.
(ii) Within the total Small Business goal in (i), the following
subordinate goals apply:
(A) Small Disadvantaged Business--[Contracting Officer insert
percentage] percent.
(B) Women-Owned Small Business--[Contracting Officer insert
percentage] percent.
(C) Service-Disabled Veteran-Owned Small Business--[Contracting
Officer insert percentage] percent.
(D) HUBZone Small Business--[Contracting Officer insert
percentage] percent.
(iii) Competing contractors shall include as part of their offer
a copy of their master subcontracting plan of record for the GSA
schedule contract under which this task order is to be awarded.
(c) Selection factors.
(1) Non-price factors.
(i) Technical and management capability (applicable to all
business types).
(A) The contractor's understanding of HUD's requirement as
demonstrated by the extent to which the contractor's offer presents
an efficient and realistic approach to meeting the proposed
requirement, considering methods, scheduling of work, and management
of resources.
(B) This evaluation criterion shall also apply to subcontractors
that the offeror is proposing, and their contribution to
demonstrating the offeror's understanding of the requirement.
(ii) Past performance.
(A) (Applicable to all business types.) As confirmed by
references, the contractor's demonstrated record consists of
successful past performance of the same or substantially similar
work, including quality of services, schedule and delivery
compliance, and cost control, within [Contracting Officer insert
time period, e.g., the past three years]. The contractor shall
identify at least five contracts, including federal, state, and
local government and the private sector, for efforts similar to this
requirement and provide current points of contact for each.
(B) (Applicable to other than small businesses.) Relevant is the
contractor's demonstrated success in utilizing small businesses in
the performance of past contracts, as confirmed by submission of
required subcontracting reports, SF-294 and SF-295, and the
contractor's actual achieved subcontracting percentages as
contrasted with the proposed small business subcontracting goals
stated under those contracts. The contractor shall identify the
contracts under which it has subcontracted with small businesses,
and shall provide points of contact for all federal agencies to
which it has submitted subcontracting plans and reports under
contracts within the past 3 years.
(iii) Key personnel (applicable to all business types). The
qualifications, including relevant prior experience, special
training, and education, of proposed key personnel (see HUDAR clause
2452.237-77, Key Personnel). The offer shall identify all key
personnel and describe how each one meets the qualifications for the
position for which he/she is proposed. The term ``key personnel''
includes employees of the contractor, any subcontractor(s),
affiliates, joint venture partners, or team members, and consultants
engaged by any of those entities.
(2) Small business subcontracting participation (applicable to
other than small businesses). Small-business offerors will
automatically receive the maximum possible credit for this factor.
They shall not be required to submit a subcontracting plan or
demonstrate subcontracting past performance (see paragraph
(2)(ii)(B) above). The evaluation shall consider:
(i) The total value of the proposed small business
subcontracting effort as it relates to the total value of the
prospective order;
(ii) Specific goals established for the categories of small
business listed in paragraph (b)(2) above;
(iii) Specific commitments from small business concerns to
assist in the contractor's proposed effort as evidenced in the
offer; and
[[Page 2448]]
(iv) The substantive nature of the work required by the task
order that the contractor proposes to subcontract.
(3) Evaluated cost/price (applicable to all business types). HUD
will evaluate the contractor's proposed costs/prices for the basic
task order and all options, if any. While the cost/price will not be
assigned a specific weight, it shall be considered a significant
criterion in the overall evaluation of offers. HUD may award the
order to other than the lowest-priced offer.
(End of provision)
14. Revise section 2452.209-72 to read as follows:
2452.209-72 Organizational Conflicts of Interest.
As prescribed in 2409.507-2, insert the following contract clause
in all contracts:
ORGANIZATIONAL CONFLICTS OF INTEREST (* * * 2006)
(a) The contractor warrants that, to the best of its knowledge
and belief, except as otherwise disclosed in accordance with
paragraph (b), neither the contractor, nor the contractor's
employees, subcontractors, team members, consultants, partners,
joint ventures, affiliates, and other business relationships has an
organizational conflict of interest as defined at FAR subpart 9.5,
which would affect the contractor's ability to perform the work
under the contract.
(b)(1) If, after award, the contractor discovers an apparent or
actual organizational conflict of interest with respect to this
contract, the contractor shall make an immediate written disclosure
to the Contracting Officer, which shall include:
(i) A full description of the actual or potential conflict of
interest, including all relevant facts; and
(ii) A plan for avoiding, neutralizing, or mitigating the
conflict of interest, including a description of any effect such
avoidance, neutralization, or mitigation is expected to have on the
contract's cost, schedule, and performance.
(2) The contractor shall cease the performance of all affected
work if directed by the Contracting Officer.
(3) When the conflict of interest can be avoided, neutralized,
or mitigated, the mitigation plan accepted by the government will be
incorporated into the contract by bilateral modification.
(4) If the conflict of interest cannot be avoided, neutralized,
or mitigated, but the contract can be modified to remove the
affected work, the Contracting Officer will modify the contract
accordingly. If the conflict is extensive to the point that the
removal of affected work is not practicable, the Contracting Officer
may terminate the contract for convenience.
(c) The Contracting Officer may terminate the contract for
default if--
(1) It is determined that the contractor was aware of an
organizational conflict of interest, either before or after the
award of the contract, and intentionally did not disclose the
conflict to the Contracting Officer; or
(2) The contractor takes any action prohibited by this clause or
fails to take action required by this clause.
(d) A conflict of interest on the part of the prime contractor,
before or after award, may be grounds for disqualifying the
contractor and any partners, affiliates, principals, subcontractors,
consultants, and employees from performing or competing for (e.g.,
under subcontract) any affected work. The government may
unilaterally determine to permit individuals or entities associated
with the prime contractor to perform or compete for affected work.
(e) The contractor shall not evaluate or otherwise advise the
government concerning its own products or services, or those of
another contractor or organization competing for a federal contract,
without the written approval of the Contracting Officer. The
contractor shall notify the Contracting Officer promptly, in
writing, whenever the contractor has been directed to evaluate or
advise the government concerning its own products or services or
those of another contractor or competitor for a federal contract.
(f) If this is an indefinite-delivery type contract under which
supplies or services are provided via task or delivery orders, the
word ``contract'' shall be read to include individual orders.
(g) Nothing in this clause is intended to prohibit the
contractor from marketing or selling to the government its product
lines in existence on the effective date of this contract, nor shall
this clause prohibit the contractor from participating in any
research and development or delivering any design, development
model, or prototype of any such equipment. Sales of catalog or
standard commercial items by the contractor are also exempt from the
requirements of this clause.
(h) The rights and remedies described herein shall not be
exclusive and are in addition to other rights and remedies provided
by law or included elsewhere in this contract.
(i) The contractor shall include the provisions of this clause
in all subcontracts, teaming agreements, or other contractual
relationships that require or provide for access to information or
performance of activities covered by this clause. The contractor
shall substitute ``subcontractor'' or other terms for ``contractor''
wherever appropriate.
(End of clause)
15. In section 2452.215-70, revise the undesignated introductory
paragraph, the undesignated introductory heading, and paragraph (c)(2)
to read as follows:
2452.215-70 Proposal Content.
As prescribed in 2415.209(a), insert a provision substantially the
same as the following:
PROPOSAL CONTENT (* * * 2006)
* * * * *
(c) * * *
(2) Past performance. The offeror shall provide evidence of the
offeror's past performance in accomplishing work--including meeting
delivery dates and schedules--the same as, or substantially similar
to, that required by the solicitation. The offeror shall provide
references as described below. The offeror is responsible for
providing accurate and current contact information for all
references provided. The government shall not be responsible for any
failure to contact references resulting from inaccurate or outdated
information provided by the offeror. In evaluating the offeror's
past performance, the government reserves the right to contact any
of the references provided, but shall not be required to contact all
of them. Furthermore, the government shall not be restricted to
information obtained from references provided by the offeror and may
use information obtained from other sources, including references
not specifically provided by the offeror but which are known or
become known to the government based on its review of the
contractor's performance history. [Contracting Officer insert
specific instructions for reference check information required].
* * * * *
16. Add section 2452.215-71 to read as follows:
2452.215-71 Small Business Subcontracting Evaluation.
As prescribed in 2415.304(c), insert the following provision:
SMALL BUSINESS SUBCONTRACTING EVALUATION (* * * 2006)
(a) General. In accordance with FAR 19.702, contractors shall
provide the maximum practicable subcontracting opportunities to
small business, veteran-owned small business, service-disabled
veteran-owned small business, HUBZone small business, small
disadvantaged business, and women-owned small business concerns. HUD
is strongly committed to ensuring that such small businesses have
maximum opportunities to participate in subcontracting with HUD
prime contractors. Contractors that are unable to meet the
established goal due to practical considerations must provide the
rationale for the proposed level of subcontracting.
(b) Subcontracting Goals. In support of its commitment, HUD has
established the following goals, which are expressed as a percentage
of the total value of each contract and subsequent modifications:
(1) Small Business--[Contracting Officer insert percentage]
percent.
(2) Within the total Small Business goal in (1), the following
subordinate goals shall apply:
(i) Small Disadvantaged Business--[Contracting Officer insert
percentage] percent.
(ii) Women-Owned Small Business--[Contracting Officer insert
percentage] percent.
(iii) Service-Disabled Veteran-Owned Small Business--
[Contracting Officer insert percentage] percent.
(iv) HUBZone Small Business--[Contracting Officer insert
percentage] percent.
(c) Evaluation. In addition to the technical and management
evaluation factors set forth
[[Page 2449]]
elsewhere in this solicitation, HUD will evaluate proposals in terms
of subcontracting opportunities provided to small business concerns
as described in the offeror's proposed subcontracting plan submitted
in accordance with the provisions at 52.219-9 and 2452.219-70 in
this solicitation. The evaluation shall consider the following:
(1) The total value of the proposed small business
subcontracting effort as it relates to the total value of the offer
for the prospective contract;
(2) The offeror's specific goals established for each of the
following categories of small business:
(i) Small Business;
(ii) Veteran-owned small business;
(iii) Service-disabled veteran-owned small business;
(iv) HUBZone small business;
(v) Small disadvantaged business; and
(vi) Women-owned small business;
(3) Specific commitments to small business concerns; and
(4) The substantive nature of the work required by the
solicitation that the offeror proposes to subcontract.
(End of provision)
17. Revise section 2452.237-75 to read as follows:
2452.237-75 Access to HUD Facilities.
As prescribed in 2437.110(e), insert the following clause in
solicitations and contracts:
ACCESS TO HUD FACILITIES (* * * 2006)
(a) Definitions. As used in this clause--
Access means physical entry into, and to the extent authorized,
mobility within, a Government facility.
Contractor employee means an employee of the prime contractor or
of any subcontractor, affiliate, partner, joint venture, or team
members with which the contractor is associated. It also includes
consultants engaged by any of those entities.
Facility and Government facility mean buildings, including areas
within buildings, owned, leased, shared, occupied, or otherwise
controlled by the federal government.
NACI means National Agency Check with Written Inquiries, the
minimum background investigation prescribed by the U.S. Office of
Personnel Management.
``PIV Card'' means Personal Identity Verification (PIV) Card,
the federal government-issued identification credential
(identification badge).
(b) General. The performance of this contract requires
contractor employees to have access to HUD facilities. All such
employees who do not already possess a current PIV Card acceptable
to HUD shall be required to provide personal background information,
undergo a background investigation (NACI or other OPM-required or -
approved investigation), including an FBI National Criminal History
Fingerprint Check, and obtain a PIV Card prior to being permitted
access to any such facility in performance of this contract. HUD may
accept a PIV Card issued by another federal agency but shall not be
required to do so. No contractor employee will be permitted access
to a HUD facility without a proper PIV Card.
(c) Background information.
(1) For each contractor employee subject to the requirements of
this clause and not in possession of a current PIV Card acceptable
to HUD, the contractor shall submit the following properly completed
forms: Standard Form (SF) 85, ``Questionnaire for Non-sensitive
Positions,'' FD-258 (Fingerprint Chart), and a partial Optional Form
(OF) 306 (Items 1, 2, 6, 8-13, 16, and 17). The SF-85 and OF-306 are
available from the Office of Personnel Management's (OPM) Web site:
http://www.opm.gov. The Government Technical Representative (GTR)
will provide all other forms that are not obtainable via the
Internet.
(2) The contractor shall deliver the forms and information
required in subparagraph (c)(1) to the GTR.
(3) The information provided in accordance with paragraph (c)(1)
will be used to perform a background investigation to determine the
suitability of the contractor employees to have access to Government
facilities. After completion of the investigation, the GTR will
notify the contractor in writing if any contractor employee is
determined to be unsuitable to be given access to a Government
facility. If so notified, the contractor shall immediately remove
such employees from work on this contract that requires their
physical presence in a Government facility.
(4) Affected contractor employees who have had a federal
background investigation without a subsequent break in federal
employment or federal contract service exceeding 2 years may be
exempt from the investigation requirements of this clause subject to
verification of the previous investigation. For each such employee,
the contractor shall submit the following information in lieu of the
forms and information listed in subparagraph (c)(1): employee's full
name, Social Security Number, and place and date of birth.
(d) PIV Cards.
(1) HUD will issue a PIV Card to each contractor employee who is
to be given access to HUD facilities and does not already possess a
PIV Card acceptable to HUD (see paragraph (b)). HUD will not issue
the PIV Card until the contractor employee has successfully cleared
the FBI National Criminal History Fingerprint Check, and until HUD
has initiated the background investigation for the contractor
employee. Initiation is defined to mean that all background
information required in paragraph (c)(1) has been delivered to HUD.
The employee may not be given access prior to those two events. HUD
may issue a PIV Card and grant access pending the completion of the
background investigation. HUD will revoke the PIV Card and the
employee's access if the background investigation process (including
adjudication of investigation results) for the employee has not been
completed within 6 months after the issuance of the PIV Card.
(2) PIV Cards shall identify individuals as contractor
employees. Contractor employees shall display their PIV Cards on
their persons at all times while working in a HUD facility and shall
present their cards for inspection upon request by HUD officials or
HUD security personnel.
(3) The contractor shall be responsible for all PIV Cards issued
to the contractor's employees and shall immediately notify the GTR
if any PIV Card(s) cannot be accounted for. The contractor shall
notify the GTR immediately whenever any contractor employee no
longer has a need for his/her HUD-issued PIV Card (e.g., employee
terminates employment with the contractor, employee's duties no
longer require access to HUD facilities). In such cases, the GTR
will instruct the contractor on how to return the PIV Card. Upon
expiration of this contract, the GTR will instruct the contractor on
how to return all HUD-issued PIV Cards not previously returned. The
contractor shall not return PIV Cards to any person other than the
individual(s) named by the GTR.
(e) Control of access. HUD shall have and exercise full and
complete control over granting, denying, withholding, and
terminating access of contractor employees to HUD facilities. The
GTR will notify the contractor immediately when HUD has determined
that an employee is unsuitable or unfit to be permitted access to a
HUD facility. In such cases, the contractor shall immediately notify
the employee that he/she no longer has access to any HUD facility,
remove the employee from any such facility that he/she may be in,
and provide a suitable replacement in accordance with the
requirements of this clause.
(f) Access to HUD information systems. If this contract requires
contractor employees to have access to HUD information system(s),
application(s), or information contained in such systems, the
contractor shall comply with all requirements of HUDAR clause
2452.239-70, Access to HUD Systems, including providing for each
affected employee any additional background investigation forms
prescribed in that clause.
(g) Subcontracts. The contractor shall incorporate this clause
in all subcontracts where the requirements specified in paragraph
(b) of this section are applicable to performance of the
subcontract.
(End of clause)
18. Revise section 2452.239-70 to read as follows:
2452.239-70 Access to HUD Systems.
As prescribed in 2439.107(a), insert the following clause:
ACCESS TO HUD SYSTEMS (* * * 2006)
(a) Definitions: As used in this clause--
Access means the ability to obtain, view, read, modify, delete,
and/or otherwise make use of information resources.
Application means the use of information resources (information
and information technology) to satisfy a specific set of user
requirements (see OMB Circular A-130).
Contractor employee means an employee of the prime contractor or
of any subcontractor, affiliate, partner, joint venture, or team
members with which the contractor is associated. It also includes
consultants engaged by any of those entities.
Mission critical system means an information technology or
[[Page 2450]]
telecommunications system used or operated by HUD or by a HUD
contractor, or organization on behalf of HUD, that processes any
information, the loss, misuse, disclosure, or unauthorized access
to, or modification of which would have a debilitating impact on the
mission of the agency.
NACI means National Agency Check with Written Inquiries, the
minimum background investigation prescribed by the U.S. Office of
Personnel Management.
PIV Card means Personal Identity Verification (PIV) Card, the
federal government-issued identification credential (i.e.,
identification badge).
Sensitive information means any information, the loss, misuse,
or unauthorized access to or modification of which could adversely
affect the national interest or the conduct of federal programs or
the privacy to which individuals are entitled under section 552a of
title 5, United States Code (the Privacy Act), but which has not
been specifically authorized under criteria established by an
Executive Order or an Act of Congress to be kept secret in the
interest of national defense or foreign policy.
System means an interconnected set of information resources
under the same direct management control, which shares common
functionality. A system normally includes hardware, software,
information, data, applications, communications, and people (see OMB
Circular A-130). System includes any system owned by HUD or owned
and operated on HUD's behalf by another party.
(b) General.
(1) The performance of this contract requires contractor
employees to have access to one or more HUD systems. All such
employees who do not already possess a current PIV Card acceptable
to HUD shall be required to provide personal background information,
undergo a background investigation (NACI or other OPM-required or
approved investigation), including an FBI National Criminal History
Fingerprint Check, and obtain a PIV Card prior to being permitted
access to any such system in performance of this contract. HUD may
accept a PIV Card issued by another federal agency but shall not be
required to do so. No contractor employee will be permitted access
to any HUD system without a PIV Card.
(2) All contractor employees who require access to mission-
critical systems or sensitive information contained within a HUD
system or application(s) are required to undergo a more extensive
background investigation. The investigation shall be commensurate
with the risk and security controls involved in managing, using, or
operating the system or applications(s).
(c) Citizenship-related requirements. Each affected contractor
employee as described in paragraph (b) shall be:
(1) A United States (U.S.) citizen; or
(2) A national of the United States (see 8 U.S.C. 1408); or
(3) An alien lawfully admitted into the United States for
permanent residence as evidenced by an Alien Registration Receipt
Card Form I-151.
(d) Background investigation process:
(1) The Government Technical Representative (GTR) shall notify
the contractor of those contractor employee positions requiring
background investigations.
(i) For each contractor employee requiring access to HUD
information systems, the contractor shall submit the following
properly completed forms: Standard Form (SF) 85, ``Questionnaire for
Non-sensitive Positions,'' FD 258 (Fingerprint Chart), and a partial
Optional Form (OF) 306 (Items 1, 2, 6, 8-13, 16, and 17).
(ii) For each contractor employee requiring access to mission-
critical systems or sensitive information contained within a HUD
system and/or application(s), the contractor shall submit the
following properly completed forms: SF-85P, ``Questionnaire for
Public Trust Positions,'' FD-258, and a Fair Credit Reporting Act
form (authorization for the credit-check portion of the
investigation). Contractor employees shall not complete the Medical
Release behind the SF-85P.
(iii) The SF-85, 85P, and OF-306 are available from the Office
of Personnel Management's Web site: http://www.opm.gov. The GTR will
provide all other forms that are not obtainable via the Internet.
(2) The contractor shall deliver to the GTR the forms and
information required in subparagraph (d)(1).
(3) Affected contractor employees who have had a federal
background investigation without a subsequent break in federal
employment or federal contract service exceeding 2 years may be
exempt from the investigation requirements of this clause subject to
verification of the previous investigation. For each such employee,
the contractor shall submit the following information in lieu of the
forms and information listed in subparagraph (d)(1): Employee's full
name, Social Security Number, and place and date of birth.
(4) The investigation process shall consist of a range of
personal background inquiries and contacts (written and personal)
and verification of the information provided on the investigative
forms described in subparagraph (d)(1).
(5) Upon completion of the investigation process, the GTR will
notify the contractor if any contractor employee is determined to be
unsuitable to have access to HUD's system(s), application(s), or
information. Any employee who HUD determines to be unsuitable may
not be given access to those resources. If an unsuitable employee
has already been given access pending the results of the background
investigation, the contractor shall ensure that the employee's
access is revoked immediately upon receipt of the GTR's
notification.
(6) Failure of the GTR to notify the contractor (see
subparagraph (d)(1)) of any employee who should be subject to the
requirements of this clause and is known, or should reasonably be
known, by the contractor to be subject to the requirements of this
clause, shall not excuse the contractor from making such employee(s)
known to the GTR. Any such employee who is identified and is working
under the contract without having had the appropriate background
investigation or furnished the required forms for the investigation,
shall cease to perform such work immediately and shall not be given
access to the system(s)/application(s) described in paragraph (b)
until the contractor has provided the investigative forms required
in subparagraph (d)(1) for the employee to the GTR.
(7) The contractor shall notify the GTR in writing whenever a
contractor employee for whom a background investigation package was
required and submitted to HUD, or for whom a background
investigation was completed, terminates employment with the
contractor or otherwise is no longer performing work under this
contract that requires access to the system(s), application(s), or
information. The contractor shall provide a copy of the written
notice to the Contracting Officer.
(e) PIV Cards.
(1) HUD will issue a PIV Card to each contractor employee who is
to be given access to HUD systems and does not already possess a PIV
Card acceptable to HUD (see paragraph (b)). HUD will not issue the
PIV Card until the contractor employee has successfully cleared an
FBI National Criminal History Fingerprint Check, and HUD has
initiated the background investigation for the contractor employee.
Initiation is defined to mean all background information required in
paragraph (d)(1) has been delivered to HUD. The employee may not be
given access prior to those two events. HUD may issue a PIV Card and
grant access pending the completion of the background investigation.
HUD will revoke the PIV Card and the employee's access if the
background investigation process (including adjudication of
investigation results) for the employee has not been completed
within 6 months after the issuance of the PIV Card.
(2) PIV Cards shall identify individuals as contractor
employees. Contractor employees shall display their PIV Cards on
their persons at all times while working in a HUD facility and shall
present cards for inspection upon request by HUD officials or HUD
security personnel.
(3) The contractor shall be responsible for all PIV Cards issued
to the contractor's employees and shall immediately notify the GTR
if any PIV Card(s) cannot be accounted for. The contractor shall
notify the GTR immediately whenever any contractor employee no
longer has a need for his/her HUD-issued PIV Card (e.g., the
employee terminates employment with the contractor, or employee's
duties no longer require access to HUD systems). The GTR will
instruct the contractor on how to return the PIV Card. Upon
expiration of this contract, the GTR will instruct the contractor on
how to return all HUD-issued PIV Cards not previously returned. The
contractor shall not return PIV Cards to any person other than the
individual(s) named by the GTR.
(f) Control of access. HUD shall have and exercise full and
complete control over granting, denying, withholding, and
terminating access of contractor employees to HUD systems. The GTR
will notify the contractor immediately when HUD has determined that
an employee is unsuitable or unfit to be permitted access to a HUD
system. The contractor shall immediately notify such an employee
that he/she no longer has access
[[Page 2451]]
to any HUD system, shall retrieve the employee's PIV Card from the
employee, and shall provide a suitable replacement employee in
accordance with the requirements of this clause.
(g) Incident response notification. An incident is defined as an
event, either accidental or deliberate, that results in unauthorized
access, loss, disclosure, modification, or destruction of
information technology systems, applications, or data. The
contractor shall immediately notify the GTR and the Contracting
Officer of any known or suspected incident, or any unauthorized
disclosure of the information contained in the system(s) to which
the contractor has access.
(h) Non-disclosure of information.
(1) Neither the contractor nor any of its employees shall
divulge or release data or information developed or obtained during
performance of this contract, except to authorized government
personnel with an established need to know or upon written approval
of the Contracting Officer. Information contained in all source
documents and other media provided by HUD is the sole property of
HUD.
(2) The contractor shall require that all employees who may have
access to the system(s)/applications(s) identified in paragraph (b)
sign a pledge of non-disclosure of information. The employees shall
sign these pledges before they are permitted to perform work under
this contract. The contractor shall maintain the signed pledges for
a period of 3 years after final payment under this contract. The
contractor shall provide a copy of these pledges to the GTR.
(i) Security procedures.
(1) The contractor shall comply with applicable federal and HUD
statutes, regulations, policies, and procedures governing the
security of the system(s) to which the contractor's employees have
access including, but not limited to:
(i) Federal Information Security Management Act (FISMA) of 2002;
(ii) OMB Circular A-130, Management of Federal Information
Resources, Appendix III, Security of Federal Automated Information
Resources;
(iii) HUD Handbook 2400.25, Information Security Policy;
(iv) HUD Handbook 732.3, Personnel Security/Suitability;
(v) Federal Information Processing Standards 201 (FIPS 201),
Sections 2.1 and 2.2;
(vi) Homeland Security Presidential Directive 12 (HSPD-12); and
(vii) OMB Memorandum M-05-24, Implementing Guidance for HSPD-12.
The HUD Handbooks are available online at: http://www.hudclips.org/ or from the GTR.
(2) The contractor shall develop and maintain a compliance
matrix that lists each requirement set forth in paragraphs (b), (c),
(d), (e), (f), (g), (h), (i)(1), and (m) of this clause with
specific actions taken, and/or procedures implemented, to satisfy
each requirement. The contractor shall identify an accountable
person for each requirement, the date actions/procedures were
initiated/completed, and certify that information contained in this
compliance matrix is correct. The contractor shall ensure that
information in this compliance matrix is complete, accurate, and up-
to-date at all times for the duration of this contract. Upon
request, the contractor shall provide copies of the current matrix
to HUD.
(3) The contractor shall ensure that its employees, in
performance of the contract, receive annual training (or a single
time if the contract is for less than one year) in HUD information
technology security policies, procedures, computer ethics, and best
practices in accordance with HUD Handbook 2400.25.
(j) Access to contractor's systems. The contractor shall afford
HUD, including the Office of Inspector General, access to the
contractor's facilities, installations, operations, documentation
(including the compliance matrix required under paragraph (i)(2)),
databases, and personnel used in performance of the contract. Access
shall be provided to the extent required to carry out, but not
limited to, any information security program activities,
investigation and audit to safeguard against threats and hazards to
the integrity, availability, and confidentiality of HUD data and
systems, or to the function of information systems operated on
behalf of HUD, and to preserve evidence of computer crime.
(k) Contractor compliance with this clause. Failure on the part
of the contractor to comply with the terms of this clause may result
in termination of this contract for default.
(l) Physical access to federal government facilities. The
contractor and any subcontractor(s) shall also comply with the
requirements of HUDAR clause 2452.237-75 when the contractor's or
subcontractor's employees will perform any work under this contract
on-site in a HUD or other federal government facility.
(m) Subcontracts. The contractor shall incorporate this clause
in all subcontracts where the requirements specified in paragraph
(b) of this section are applicable to performance of the
subcontract.
(End of clause)
Dated: December 21,2005.
Joseph A. Neurauter,
Chief Procurement Officer.
[FR Doc. 06-302 Filed 1-12-06; 8:45 am]
BILLING CODE 4210-73-P