HHSAR Class Deviation 2025-02

March 31, 2025

MEMORANDUM

1. Effective Date:

Immediately upon signature.

2. Expiration Date:

This CD is effective until incorporated into the HHSAR, superseded, or otherwise rescinded.

3. Purpose:

This CD  updates the following HHSAR Parts listed below to implement or align with Executive Orders (EO) issued on or after January 20, 2025:

• HHSAR PART 309 – CONTRACTOR QUALIFICATIONS
• HHSAR PART 322—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
• HHSAR PART 323—ENVIRONMENT, SUSTAINABLE ACQUISITION, AND MATERIAL SAFETY
• HHSAR PART 337—SERVICE CONTRACTING
• HHSAR PART 352—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

4. Applicability:

The requirements in this CD are applicable to all HHS Operating Divisions and Staff Divisions (OpDivs/StaffDivs) for applicable solicitations and contracts.

5. Roles And Responsibilities:

Heads of the Contracting Activities (HCA) shall ensure this CD is disseminated to the acquisition workforce and ensure compliance with the requirements in the CD. Additionally, HCAs must review and update any applicable internal procedures and guidance to reflect the policies and guidance contained herein.

6. Background:

This CD is necessary to immediately update HHSAR policies to comply with EOs issued on or after January 20, 2025, to implement President Trump’s agenda and priorities throughout the Executive Departments and agencies. Within several of these EOs, other existing EOs were revoked impacting current acquisition policies in the Federal Acquisition Regulation (FAR) and the HHSAR. While the Office of Management and Budget (OMB) has been tasked with providing agencies with guidance on revisions to the FAR, there are HHSAR policies and procedures that must also be revised to align with the new EOs. 

This CD revises the HHSAR to implement or align with certain, applicable requirements of the following EOs:

• EO 14148 of January 20, 2025, Initial Rescissions of Harmful Executive Orders and Actions, specifically Section 2 which revoked the following:
  • EO 13985 of January 20, 2021, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.
  • EO 13988 of January 20, 2021, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.
  • EO 14057 of December 8, 2021, Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability.
• EO 14154 of January 20, 2025, Unleashing American Energy.
• EO 14168 of January 20, 2025, Defending Woman From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government 
• EO 14173 of January 21, 2025, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, specifically Section 3 which revoked the following:
  • EO 11246 of September 24, 1965, Equal Employment Opportunity.
  • EO 13672 of July 21, 2014, Further Amendments to “Executive Order 11478, Equal Employment Opportunity in the Federal Government,” and “Executive Order 11246, Equal Employment Opportunity.”
• EO 14187 of January 28, 2025, Protecting Children From Chemical and Surgical Mutilation

41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure, or form, including an amendment or modification, may not take effect until 60 days after it is published for public comment in the Federal Register if it “(A) relates to the expenditure of appropriated funds; and (B)(i) has a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form; or (ii) has a significant cost or administrative impact on contractors or offerors.”

However, to ensure alignment with recently issued EOs, it is necessary to issue this CD in advance of a proposed rule to ensure HHS solicitations and contracts consistently reflect the policies and priorities of the Administration. HHS intends on developing a rule after the release of this CD.

7. Policy/Guidance:

HHS contracting staff must comply with the following as reflected in Attachment 1, HHSAR Deviation Text, as follows:

A. When issuing new solicitations or contracts/orders:

1. Do not include any rescinded provisions and clauses  identified in Attachment 1.

2. Include applicable deviated provisions and clauses identified in Attachment 1.

B. For open solicitations:

1. Amend the solicitation to remove any rescinded provisions and clauses identified in Attachment 1.

2. Amend the solicitation to include applicable deviated provisions and clauses as identified in Attachment 1.

C. For existing contracts/orders:

1. At the next available opportunity, modify the contract/order to remove any rescinded provisions and clauses identified in Attachment 1.

2. At the next available opportunity, modify the contract/order to include applicable deviated provisions and clauses identified in Attachment 1.

8. Authority:

This CD is issued under the authority of FAR 1.404, Class deviations, and HHSAR 301.401, Deviations, for the purpose of immediately implementing policy in the HHSAR via a class deviation to comply with requirements of certain EOs as identified in Section 9 below.

9. Summary Of HHSAR Changes:

To implement or align with the requirements, the HHSAR is deviated and revised, as summarized below and provided in Attachment 1.

• HHSAR Part 309—Contractor Qualifications 
  • Adds Subpart 309.70—HHS Special Contractor Qualifications
• HHSAR Part 322—Application of Labor Laws to Government Acquisitions
  • Remove Subpart 322.8—Equal Employment Opportunity in its entirety.
• HHSAR Part 323—Environment, Sustainable Acquisition, and Material Safety
  • Remove Section 323.7100—Policy in its entirety and reserve the section number.
• HHSAR Part 337—Service Contracting
  • Remove paragraph (e) in section 337.103, Contracting officer responsibility, under subpart 337.1—Service Contracts—General. Subsequent paragraphs in the section was re-numbered accordingly.
• HHSAR Part 352—Solicitation Provisions and Contract Clauses
  • Adds provision at 352.209-1, Contractor Compliance with Defending Woman and Protecting Children Requirements – Certification (March 2025) (Deviation) 
  • Adds clause at 352.209-2, Contractor Compliance with Defending Woman and Protecting Children Requirements (March 2025) (Deviation) 
  • Remove the clause at 352.222-70, Contractor Cooperation in Equal Employment Opportunity Investigations, and reserve the clause number.
  • Remove the provision at 352.223-71, Instructions to Offerors—Sustainable Acquisition, and reserve the clause number.
  • Remove paragraph (c) from clause 352.226-1, Indian Preference, and re-number subsequent paragraphs accordingly.
  • Remove the clause at 352.237-74, Non-Discrimination in Service Delivery, and reserve the clause number.

10. Contact:

Acquisition workforce members with questions regarding this CD should contact their cognizant OpDiv/StaffDiv Acquisition Office or Acquisition Policy Council (APC) Representative(s), as appropriate.

The current list of APC Representatives may be found on the Acquisition Councils and Workgroups Page of the HHS Acquisition Portal (HHSAP). (Note: The HHSAP is accessible only by HHS employees and contractors on the HHS network. It is not publicly accessible.)

All other questions should be directed to Acquisition_Policy@hhs.gov.

11. Attachment(s):

Attachment 1 – HHSAR Deviation Text