Attachment A: Interim Updates to HHSAR

General Instructions: Any contract, delivery or task order using FY-2012 appropriations should be modified to add the applicable terms and conditions set forth in this memorandum.

Sections 218 and 503 of the Labor, HHS and Education Appropriation Act - Revised HHSAR 352.203-70, Anti-Lobbying

HHSAR 352.203-70 Anti-Lobbying has been revised to include:

1. Additional prohibitions on: electronic communication; applicability to appropriations under Public Law 112-74 and Section 4002 of Public Law 111-148 (Prevention and Public Health Fund); additional government bodies; and
2. Prohibitions against using appropriated funds for advocacy of tax increases or promotion of gun control. 

303.808-70 Solicitation provision and contract clause.

When using funding for any HHS OPDIV except IHS and FDA from Public Law 112-74,  or from the Prevention and Public Health Fund, Public Law 111-148, the Contracting Officer shall insert the clause in 352.203-70, Anti-lobbying, in solicitations and contracts.

352.203-70 Anti-Lobbying.

As prescribed in 303.808-70, the Contracting Officer shall insert the following clause:

ANTI-LOBBYING (MAR 2012)

Pursuant to the current HHS annual appropriations act, Public Law 112-74, except for normal and recognized executive-legislative relationships, the Contractor shall not use any HHS contract funds for:

1. Publicity or propaganda purposes;
2.  The preparation, distribution, or use of any kit, pamphlet, booklet, publication, electronic communication, radio, television or video presentation designed to support or defeat the enactment of legislation before the Congress or any State or local legislature or legislative body, except in presentation to the Congress or any State or local legislature itself; or designed to support or defeat any proposed or pending regulation, administrative action, or order issued by the executive branch of any State or local •government, except in presentation to the executive branch of any State or local government itself; or
3. Payment of salary or expenses of the Contractor, or any agent acting for the Contractor, related to any activity designed to influence the enactment of legislation, appropriations, regulation, administrative action, or Executive order proposed or pending before the Congress or any State government, State  legislature or local legislature or legislative body, other than for normal and recognized executive-legislative relationships or participation by an agency or officer of a State, local or tribal government in policymaking and administrative processes within the executive branch of that government.

The prohibitions in subsections (a), (b) and (c) above shall include any activity to advocate or promote any proposed, pending or future Federal, State or local tax increase, or any proposed, pending, or future requirement for, or restriction on, any legal consumer product, including its sale or marketing, including, but not limited to, the advocacy or promotion of gun control. 

(End of clause)

Section 220 of the Labor, HHS and Education Appropriation Act - New HHSAR 304.16, Affordable Care Act Prevention and Public Health Fund – Reporting Requirements,; HHSAR 305.8, Publicizing Requirements Under the Affordable Care Act Prevention and Public Health Fund,; and HHSAR 352.204-16, Prevention and Public Health Fund – Reporting Requirements 

To enhance transparency and accountability, the website at https://www.hhs.gov/open/recordsandreports/prevention/index.html has been created for posting notices regarding use of the Affordable Care Act Prevention and Public Health Fund (PPHF)  When PPHF funding will be used, program offices and Contracting Officers shall use a standard naming convention to insert  “PPHF 2012” at the beginning of  the description of requirement.  This naming convention will be used throughout the acquisition process.   Program offices shall use that naming convention in the “Description of Requirement” when entering their request in iProcurement or any other requisition system or form.  Contracting Officers shall use that naming convention in all announcements posted on the PPHF website and in award/modification documents.  The notices to be published on the PPHF website should be sent to the following ASPA points-of-contact:

• Julie Weckerlein
• Chris Bernstein

When using PPHF funding, Contracting Officers shall modify existing contracts, on a bilateral basis, to include the applicable HHSAR provisions and clauses and any cost impact to the contractor caused by adding the additional terms and conditions.  This also applies to orders placed against existing contracts.  In the event that a contractor refuses to accept such a modification, the contractor will not be eligible for receipt of any PPHF funds.  Existing contracts should be modified to add the clause when PPHF funds are first obligated under the contract.

Please note that this gathering of contractor information will be subject to OMB clearance pursuant to the Paperwork Reduction Act.  

Subpart 304.16— Affordable Care Act Prevention and Public Health Fund —Reporting Requirements

304.1600 Scope of subpart.

This subpart implements section 220 of Public Law 112-74, FY2012 Labor, HHS and Education Appropriations Act, which requires, semi-annual reporting on the use of funds from the Prevention and Public Health Fund (PPHF), Public Law 111-148, sec. 4002.  Contractors that receive awards (or modifications to existing awards) with a value of $25,000 or more funded, in whole or in part, from the Prevention and Public Health Fund, shall report information specified in the clause at 352.204-16, including, but not limited to—

1. The dollar amount of contractor invoices;
2. The supplies delivered and services performed; and
3. Specific information on subcontracts with a value of $25,000 or more. 

304.1601 Procedures.

1. In any contract action funded in whole or in part by the PPHF, the contracting officer shall indicate that the contract action is being made under the PPHF, and indicate which products or services are funded under the PPHF. This requirement applies whenever PPHF funds are used, regardless of the contract instrument.
2. To maximize transparency of PPHF funds that shall be reported by the contractor, the contracting officer shall structure contract awards to allow for separately tracking PPHF funds. For example, the contracting officer may consider awarding dedicated separate contracts when using PPHF funds or establishing contract line item number (CLIN) structures to prevent commingling of PPHF funds with other funds.
3. Contracting officers shall ensure that the contractor complies with the reporting requirements of 352.204-16, Prevention and Public Health Fund—Reporting Requirements. Upon receipt of each report, the Contracting officer shall review it for completeness, address any clarity or completeness issues with the contractor, and submit the final approved report in Section 508 compliant format to an ASPA point-of-contact for posting on HHS’ Prevention and Public Health Website at https://www.hhs.gov/open/recordsandreports/prevention/index.html no later than 30 days after the end of the reporting period.  If the contractor fails to comply with the reporting requirements, the contracting officer shall exercise appropriate contractual remedies.
4. The contracting officer shall make the contractor’s failure to comply with the reporting requirements a part of the contractor’s performance information under FAR Subpart 42.15.

304.1602 Contract clause.

Insert the clause at 352.204-16, Prevention and Public Health Fund—Reporting Requirements, in all solicitations and contract actions funded in whole or in part with PPHF funds, except classified solicitations and contracts. This includes, but is not limited to, awarding or modifying orders against existing or new contracts issued under FAR subparts 8.4 and 16.5 that will be funded with PPHF funds. Contracting officers shall include this clause in any existing contract or order that will be funded with PPHF funds. Contracting officers may not use PPHF funds on existing contracts and orders if the clause at 352.204-16 is not incorporated. This clause is not required for any contract, or task, and or delivery orders issued under a contract which contains the original clause 352.204-16.

Subpart 305.8—Publicizing Requirements Funded From the Affordable Care Act Prevention and Public Health Fund

305.801 Scope.

Pursuant to the FY2012 Labor, HHS and Education Appropriations Act, Public Law 112-74, Section 220, this subpart prescribes requirements for posting presolicitation and award notices for actions funded in whole or in part from the Prevention and Public Health Fund (PPHF)., Public Law 111-148, sec. 4002,  The requirements of this subpart enhance transparency to the public.

305.802 Applicability.

This subpart applies to all actions funded in whole or in part by the PPHF.

305.803 Definitions.

As used in this subpart—

“Task or delivery order contract” means a “delivery order contract,” and or a “task order contract”, as defined in FAR 16.501-1.   For example, it includes orders under Government-wide Acquisition Contracts (GWACs), FAR 8.4 contracts, and other indefinite-delivery/indefinite-quantity contracts, whether single award or multiple award).

305.804 Publicizing pre-award.

(a)(1) Notices of all proposed contract actions, funded in whole or in part by the PPHF, shall be identified on HHS’ Prevention and Public Health Fund Website at https://www.hhs.gov/open/recordsandreports/prevention/index.html no later than one day after issuance of the solicitation or other request for proposal  or quotation document.   When applicable, the notice shall provide a link to the full text; for example, a link to the FedBizOpps notice required by FAR 5.201.

305.805 Publicizing postaward.

Notices of award of contract actions exceeding $25,000, funded in whole or in part by the PPHF, shall be identified on HHS’ Prevention and Public Health Fund Website at https://www.hhs.gov/open/recordsandreports/prevention/index.html no later than five days after the award is made. 

352.204-16 Prevention and Public Health Fund —Reporting Requirements.

As prescribed in HHSAR 304.1602, insert the following clause:

PREVENTION AND PUBLIC HEALTH FUND—REPORTING REQUIREMENTS (MAR 2012)

1. Pursuant to Public Law 112-74, FY2012 Labor, HHS and Education Appropriations Act, Sec. 220, this contract requires the contractor to provide products and/or services that are funded from the Prevention and Public Health Fund (PPHF), Public Law 111-148, sec. 4002.  Section 220(a)(5) requires each contractor to report on its use of these funds under this contract. These reports will be made available to the public.
2. Semi-annual reports from the Contractor for all work funded, in whole or in part, by the PPHF, are due no later than 20 days following the end of each six-month period.  The six-month reporting periods are January through June and July through December.  The first report is due no later than 20 days after the end of the six-month period following contract award. Subsequent reports are due no later than 20 days after the end of each reporting period.  If applicable, the Contractor shall submit its final report for the remainder of the contract period no later than 20 days after the end of the reporting period in which the contract ended.
3. The Contractor shall provide the following information in an electronic and 508 compliant format to the Contracting Officer.
   1. The Government contract and order number, as applicable.
   2. The amount of PPHF funds invoiced by the contractor for the reporting period and the cumulative amount invoiced for the contract or order period.
   3. A list of all significant services performed or supplies delivered, including construction, for which the contractor invoiced in the reporting period.
   4. Program or project title, if any.
   5. The Contractor shall report any subcontract funded in whole or in part with PPHF funding, that is valued at $25,000 or more.  The Contractor shall advise the subcontractor that the information will be made available to the public. The Contractor shall report:
4. Name and address of the subcontractor.
5. Amount of the subcontract award.
6. Date of the subcontract award.
7. A description of the products or services (including construction) being provided under the subcontract.

(End of clause)

Section 203 of the Labor, HHS and Education Appropriation Act - Revised HHSAR 352.231-70, Salary Rate Limitation

HHSAR 352.231-70, Salary Rate Limitation, has been revised to indicate applicability to all OPDIVs except FDA and IHS and the salary rate limitation has been changed from Executive Level I to Executive Level II.  The prescription at HHSAR 331.101-70 has been revised to indicate applicability to all OPDIVs except FDA and IHS.

Contracting Officers shall modify existing extramural contracts, on a bilateral basis to include this HHSAR clause and any cost impact to the contractor caused by adding the additional terms and conditions.  This also applies to orders placed against existing contracts.  In the event that a contractor refuses to accept such a modification, the contractor will not be eligible for receipt of any FY2012 funds effective December 23, 2011.

331.101-70 Salary rate limitation.

1. Congress has stipulated in the HHS appropriations act that, under applicable extramural contracts for all HHS organizations except IHS and FDA, appropriated funds cannot be used to pay the direct salary of an individual at a rate in excess of the Federal Executive Schedule Level II.   For the purposes of the salary limitation provision and its application to acquisitions, the term “extramural” refers to activities that a contractor undertakes for specified programmatic purposes, other than those of an administrative nature or in support of Federal laboratories, facilities, or information technology systems, through a formal and legally-binding contract.
2. The Contracting Officer shall insert the clause in 352.231-70, Salary Rate Limitation, in extramural solicitations and contracts for  all HHS organizations except IHS and FDA, when a cost-reimbursement, fixed-price level-of-effort, time-and-materials, or labor-hour contract is contemplated, including modifications of contracts of those types.

352.231-70 Salary rate limitation.

As prescribed in 331.101-70, the Contracting Officer shall insert the following clause in extramural solicitations and contracts:

SALARY RATE LIMITATION (MAR 2012)

1. Pursuant to the current and applicable prior HHS appropriations acts, the Contractor shall not use contract funds to pay the direct salary of an individual at a rate in excess of the Federal Executive Schedule Level II in effect on the date an expense is incurred.
2. For purposes of the salary rate limitation, the terms ``direct salary,'' ``salary”, and ``institutional base salary'', have the same meaning and are collectively referred to as ``direct salary'', in this clause. An individual's direct salary is the annual compensation that the Contractor pays for an individual's direct effort (costs) under the contract.  Direct salary excludes any income that an individual may be permitted to earn outside of duties to the Contractor.  Direct salary also excludes fringe benefits, overhead, and general and administrative expenses (also referred to as indirect costs or facilities and administrative [F&A] costs).

Note:  The salary rate limitation does not restrict the salary that an organization may pay an individual working under an HHS contract or order; it merely limits the portion of that salary that may be paid with Federal funds.

1. The salary rate limitation also applies to individuals under subcontracts.  If this is a multiple-year contract or order, it may be subject to unilateral modification by the Contracting Officer to ensure that an individual is not paid at a rate that exceeds the salary rate limitation provision established in the HHS appropriations act in effect when the expense is incurred regardless of the rate initially used to establish contract or order funding.
2. See the salaries and wages pay tables on the U.S. Office of Personnel Management Web site for Federal Executive Schedule salary levels that apply to the current and prior periods.

(End of clause)

Section 219 of the Labor, HHS and Education Appropriation Act - Revised HHSAR 335.017-2, Establishing or changing an FFRDC

HHSAR 335.017-2(k) has been added to include a prohibition specific to CMS against using appropriated funds to advance the creation of a Federally Funded Research and Development Center until a Federal Register notice has been published that outlines: how this proposal would meet the requirements in FAR 35.017-2; agency procedures to ensure small business competitiveness; and a transparent award and governance process.

335.017-2 Establishing or changing an FFRDC.

(k)  None of the funds appropriated or otherwise made available by the 2012 Labor/HHS Appropriations Act may be expended to advance the creation of a Federally Funded Research and Development Center (FFRDC) at CMS prior to a Federal Register notice being issued that outlines:   a) how the proposal to create an FFRDC would meet the specific requirements identified in FAR 35.017-2; b) agency procedures to ensure that acquisition opportunities for small business are maintained;  and c) transparent processes for the  award of an FFRDC contract and to ensure that the FFRDC complies with FAR 35.017-2(h).

HHS’ Non-Discrimination Policy - Added HHSAR 352.237-73 Non-Discrimination in Service Delivery

Provisions are being implemented to make explicit HHS’ non-discrimination policy when obligating appropriations for solicitations, contracts and orders that deliver service under HHS’ programs directly to the public.

337.103-70 (d)

The Contracting Officer shall insert the clause in 352.237-73, Non-Discrimination in Service Delivery, in solicitations, contracts, and orders to deliver services under HHS’ programs directly to the public.

352.237-73 Non-Discrimination in Service Delivery.

As prescribed in 337.103-70(d), the Contracting Officer shall insert the following clause in solicitations and contracts:

NON-DISCRIMINATION IN SERVICE DELIVERY (MAR 2012)

It is the policy of the Department of Health and Human Services that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as race, color, national origin, religion, sex, gender identity, sexual orientation, or disability (physical or mental).  By acceptance of this contract, the contractor agrees to comply with this policy in supporting the program and in performing the services called for under this contract.  The contractor shall include this clause in all sub-contracts awarded under this contract for supporting or performing the specified program and services.  Accordingly, the contractor shall ensure that each of its employees, and any sub-contractor staff, is made aware of, understands, and complies with this policy.