Attachment A - HHS FAR Deviations.pdf

Department of Health and Human Service (HHS)

Federal Acquisition Regulation (FAR) Class Deviation 18‐01

Whistleblower Protection for Contractor Employees

Solicitation and Contract Addendum for Commercial Items/Services that Exceed the Simplified Acquisition Threshold

Background: The FAR currently provides that when the 4‐year pilot program under 41 U.S.C. 4712 expires, the previous whistleblower coverage is back in effect. However, the Civilian Agency Acquisition

Council (CAAC) issued CAAC Letter 2017‐02, dated July 5, 2017, to further implement 41 U.S.C. 4712 (as amended by Public Law 114‐261) to make permanent the 4‐year pilot program and clarifies the use of certain Whistleblower Protection clauses. In turn, the HHS Deputy Assistant Secretary for Office of

Grants and Acquisition Policy and Accountability/Senior Procurement Executive issued HHS FAR Class

Deviation 18‐01, dated February 8, 2018, to implement CAAC guidance and Enhance Whistleblower

Protection for Contractor Employees.

Pursuant to the above‐stated authorities, the underlying solicitation/contract hereby incorporates the following Terms and Conditions:

PART 3‐IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

Subpart 3.9‐whistleblower Protections for Contractor Employees

3.900 Scope of subpart.

This subpart implements various statutory whistleblower programs. This subpart does not implement 10 U.S.C. 2409, which is applicable only to DoD, NASA, and the Coast Guard.

41 U.S.C. 4705 (in effect before July 1, 2013). Sections 3.901 through 3 .906 of this subpart implemented 41 U.S.C. 4705, applicable to civilian agencies other than NASA and the Coast Guard.

41 U.S.C. 4712 (in effect on and after July 1, 2013). Section 3.908 of this subpart implements the pilot program, applicable to civilian agencies other than NASA and the Coast Guard, except as provided in paragraph {d) of this section.

Section 743 of Division E, Title VII of the Consolidated and further Continuing Appropriations Act, 2015 (Pub. L. 113‐235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions), implemented in 3.909, applicable to all agencies.

Contracts funded by the American Recovery and Reinvestment Act. Section 3.907 of this subpart implements section 1553 of the American Recovery and Reinvestment Act of 2009 (Pub. L. 111‐ 5), and applies to all contracts funded in whole or in part by that Act.

[This space intentionally left blank.]

52.203‐17 Contractor Employee Whistleblower Rights and Requirement to Inform Employees of

Whistleblower Rights. (APR 2014)

(a) This contract and employees working on this contract will be subject to the whistleblower rights and remedies in the pilot program on Contractor employee whistleblower protections established at 41

U.S.C. 4712 by section 828 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112‐

239) and FAR 3.908

(b) The Contractor shall inform its employees in writing, in the predominant language of the workforce, of employee whistleblower rights and protections under 41 U.S.C. 4712, as described in section 3.908 of the Federal Acquisition Regulation.

(c) The Contractor shall insert the substance of this clause, including this paragraph (c), in all subcontracts over the simplified acquisition threshold.

(End of clause)

PART 52‐SOLICITATION PROVISIONS AND CONTRACT CLAUSES

52.212‐4 Contract Terms and Conditions‐Commercial Items (Deviation 2017‐02).

As prescribed in 12.301(b)(3), the following clause applies:

CONTRACT TERMS AND CONDITIONS‐COMMERCIAL ITEMS (DEVIATION 2017‐XX) (JUNE 2017)

(a)***

Compliance with laws unique to Government contracts. The Contractor agrees to comply with 31 U.S.C.

1352 relating to limitations on the use of appropriated funds to influence certain Federal contracts; 18

U.S.C. 431 relating to officials not to benefit; 40 U.S.C. chapter 37, Contract Work Hours and Safety

Standards; 41 U.S.C. chapter 87, Kickbacks; 10 U.S.C 2409 relating to whistleblower protections; 49

U.S.C. 40118, Fly American; and 41 U.S.C. chapter 21 relating to procurement integrity.

52.212‐5 Contract Terms and Conditions Required to Implement Statutes or Executive Orders‐

Commercial Items (Deviation 2017‐02).

As prescribed in 12.301(b)(4), the following clause applies:

CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS‐

COMMERCIAL ITEMS (DEVIATION 2017‐XX) (JUNE 2017)

[This space intentionally left blank.]

The Contractor shall comply with the FAR clauses in this paragraph(b) that the Contracting Officer has indicated as being incorporated in this contract by reference to implement provisions of law or

Executive orders applicable to acquisitions of commercial items:

_X_ (1) 52.203‐6, Restrictions on Subcontractor Sales to the Government (Sept 2006), with Alternate I

(Oct 1995) (41 U.S.C. 4704 and 10 U.S.C. 2402).

_X_ (2) 52.203‐13, Contractor Code of Business Ethics and Conduct (Oct 2015) (41 U.SC. 3509).

Note: Applies only if the value of the contract is expected to exceed $5.5 million and the performance period is anticipated to be 120 days or more.

_X_ (3) 52.203‐15, Whistleblower Protections under the American Recovery and Reinvestment Act of

2009 (June 2010) (Section 1553 of Pub. L. 111‐5).

Note: Applies only to contracts funded by the American Recovery and Reinvestment Act of

2009. Please contact the FDA Contracting Officer if you have any questions regarding the application of the clause.

_X_ (4) 52.203‐17, Contractor Employee Whistleblower Rights and Requirement to Inform Employees of

Whistleblower Rights (April 2014) (41 U.S.C. 4712) relating to whistleblower protections).

The paragraphs below are renumbered

52.301 Solicitation provisions and contract clauses (Matrix).

Please see CAAC Letter 17‐02, available at:

https://www.acquisition.gov/sites/default/files/page_file_uploads/CAAC%20Letter%202017‐02.pdf.

Attachment - FAR deviation: Class Deviation from the Federal Acquisition Regulation (FAR) to provide for accelerated payments to small business contractors and subcontractors

FAR Deviation Text

Baseline is FAC 2020-05, published in the Federal Register on February 27, 2020.

Deviations are shown by [bracketed bold additions] and strikeouts.

FAR text unchanged shown as asterisks *** or *****

PART 12—ACQUISITION OF COMMERCIAL ITEMS

Subpart 12.3—Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items

12.301 Solicitation provisions and contract clauses for the

acquisition of commercial items.

(d) ***

(12) Insert the clause at 52.232-40, Providing Accelerated Payments to Small Business Subcontractors, as prescribed in 32.009-2.

PART 32—CONTRACT FINANCING

32.009 Providing accelerated payments to small business

[contractors and to prime contractors that subcontract with a small business concern]subcontractors.

32.009-1 General.

[(a) Pursuant to 31 U.S.C. 3903(a) and 10 U.S.C. 2307(a), agencies shall provide accelerated payments, to the fullest extent permitted by law, with a goal of 15 days after receipt of a proper invoice and all other required documentation, if a specific payment date is not established by contract, to—

1) Small business contractors, and

2) Prime contractors that subcontract with a small business concern, if the prime contractor agrees to make payments to the small business subcontractor in accordance with the accelerated payment date, to the maximum extent practicable, without any further consideration from or fees charged to the subcontractor.]Pursuant to the policy provided by OMB Memorandum

M-12-16, Providing Prompt Payment to Small Business

Subcontractors (and as extended by OMB Memoranda M-13-15 and M-

14-10, both titled Extension of Policy to Provide Accelerated

Payment to Small Business Subcontractors), agencies shall take measures to ensure that prime contractors pay small business subcontractors on an accelerated timetable to the maximum extent practicable, and upon receipt of accelerated payments from the

Government. This acceleration does not provide any new rights under the Prompt Payment Act and does not affect the application of the Prompt Payment Act late payment interest provisions.

[(b)] This acceleration does not provide any new rights under the Prompt Payment Act and does not affect the application of the Prompt Payment Act late payment interest provisions.

32.009-2 Contract clause.

Insert clause 52.232-40, Providing Accelerated Payments to

Small Business Subcontractors, in all solicitations and contracts.

SUBPART 32.9—PROMPT PAYMENT

32.903 Responsibilities.

(a) * * *

(5) May authorize the use of the accelerated payment methods specified at 5 CFR 1315.5 [(but see 32.009-1(a))].

32.906 Making payments.

(a) * * *

(2) That the use of accelerated payment methods are necessary (see 32.903(a)(5)) [(but see 32.009-1(a))].

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 52.2—Text of Provisions and Clauses

52.212-5 Contract Terms and Conditions Required To Implement Statutes or Executive Orders—Commercial Items.

As prescribed in 12.301(b)(4), insert the following clause:

CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR

EXECUTIVE ORDERS—COMMERCIAL ITEM (MAR 2020)[(DEVIATION APR

2020)]

(b) * * *

__ (60) [52.232-40, Providing Accelerated Payments to Small Business Subcontractors (DEC 2013)(DEVIATION APR 2020)(31 U.S.C.

3903 and 10 U.S.C. 2307).

__ (61)] 52.239-1, Privacy or Security Safeguards (AUG 1996) (5 U.S.C. 552a).

__ ([62]61) 52.242-5, Payments to Small Business Subcontractors (JAN 2017)(15 U.S.C. 637(d)(13)).

__ ([63]62)(i) 52.247-64, Preference for Privately Owned U.S.- Flag Commercial Vessels (Feb 2006) (46 U.S.C. Appx. 1241(b) and 10 U.S.C. 2631).

__ (ii) Alternate I (Apr 2003) of 52.247-64.

__ (iii) Alternate II (Feb 2006) of 52.247-64.

52.213-4 Terms and Conditions—Simplified Acquisitions (Other Than Commercial Items).

As prescribed in 13.302-5(d), insert the following clause:

TERMS AND CONDITIONS—SIMPLIFIED ACQUISITIONS (OTHER THAN

COMMERCIAL ITEMS (JAN 2020)[(DEVIATION APR 2020)]

(a)***

(2) ***

(vi) 52.232-40, Providing Accelerated Payments to Small Business Subcontractors (DEC 2013)[(DEVIATION APR 2020)(31 U.S.C. 3903 and 10 U.S.C. 2307)].

(viii) 52.244-6, Subcontracts for Commercial Items (AUG

2019)[(DEVIATION APR 2020)].

52.232-40 Providing Accelerated Payments to Small Business

Subcontractors.

As prescribed in 32.009-2, insert the following clause:

PROVIDING ACCELERATED PAYMENTS TO SMALL BUSINESS SUBCONTRACTORS

(DEC 2013)[(DEVIATION APR 2020)]

(a)[(1) In accordance with 31 U.S.C. 3903 and 10 U.S.C. 2307, u]Upon receipt of accelerated payments from the Government, the

Contractor shall make accelerated payments to its small business subcontractors under this contract [in accordance with the accelerated payment date established], to the maximum extent practicable and prior to when such payment is otherwise required under the applicable contract or subcontract, [with a goal of 15 days] after receipt of a proper invoice and all other required documentation from the small business subcontractor [if a specific payment date is not established by contract.

(2) The Contractor agrees to make such payments to its small business subcontractors without any further consideration from or fees charged to the subcontractor].

(b) The acceleration of payments under this clause does not provide any new rights under the Prompt Payment Act.

(c) Include the substance of this clause, including this paragraph (c), in all subcontracts with small business concerns, including subcontracts with small business concerns for the acquisition of commercial items.

(End of clause)

52.244-6 Subcontracts for Commercial Items.

As prescribed in 44.403, insert the following clause:

SUBCONTRACTS FOR COMMERCIAL ITEMS (AUG 2019)[(DEVIATION APR

2020)]

(c)(1) * * *

(xix) 52.232-40, Providing Accelerated Payments to Small

Business Subcontractors (DEC 2013)[(DEVIATION APR 2020)], if flow down is required in accordance with paragraph (c) of FAR clause 52.232-40.