Subpart 301.6--Career Development, Contracting Authority, and Responsibilities
HHS Acquisition Regulation (HHSAR)301.602 Contracting Officers
301.603 Selection, appointment, and termination of appointment of Contracting Officers
301.604 Training and certification of Contracting Officer's Technical RepresentativesSections on this page: 301.602 Contracting Officers 301.603 Selection, appointment, and termination of appointment of Contracting Officers. 301.604 Training and certification of Contracting Officers’ Technical Representatives.
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 $150,000 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. Back to Top (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. 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 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. 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. The HCA shall terminate or revoke Contracting Officer appointments in accordance with FAR 1.603-4. (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. 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. (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. 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 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. When the HHS Office on Disability (OD) so requires, all GS-1102s, GS-1105s, and GS-1106s who award or administer acquisitions that 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 OD sponsored training. For information on frequency, timing, and duration of the training requirement, personnel shall consult with the HHS OD. (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. 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.) Back to Top 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 Representatives Program Handbook (COTR Handbook) 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. (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. 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’ COTR Handbook for information on CLPs. (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 the training by the extended date, the HCA’s approval for the individual’s assignment to the contract will automatically terminate on that date. (a) See HHS’ COTR Handbook for information on additional COTR training requirements. (b) 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. Back to Top
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