HHSAR Class Deviation 2026-21

Signature Date: 9/8/2026

1. EFFECTIVE DATE:

October 1, 2026

2. EXPIRATION DATE:

This CD is effective until incorporated into the HHSAR, superseded, or otherwise rescinded.

3. PURPOSE:

This HHSAR CD implements requirements to comply with EO 14275, Restoring Common Sense to Federal Procurement, and the Revolutionary FAR Overhaul (RFO) initiative. This CD revises HHSAR part 337 and applicable portions of 352 to align with the FAR Council’s RFO model deviation text for FAR parts 37 and 52.

This HHSAR CD supersedes and rescinds the part 337 deviation guidance in HHSAR CD 2025-02, entitled, “Updates to HHSAR Parts 309, 322, 323, 337, and 352,” issued on March 31, 2025.

4. APPLICABILITY:

The requirements in this CD apply to all HHS Divisions for applicable solicitations, contracts, and orders.

5. ROLES AND RESPONSIBILITIES:

Heads of the Contracting Activities (HCAs) must 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:

On April 15, 2025, EO 14275, Restoring Common Sense to Federal Procurement, was signed. Section 2 of the EO establishes the policy that the FAR “should only contain provisions required by statute or essential to sound procurement, and any FAR provisions that do not advance these objectives should be removed.”

Under the RFO initiative, the FAR is being updated to:

• Remove language that is not required by statute
• Remove duplicative or outdated language
• Clarify or provide more plain language
• Revise language for the new FAR framework
• Retain language necessary for governmentwide acquisition standards.

The FAR Council released their RFO FAR part 37 model deviation text and affected part 52 solicitation provisions and contract clauses on September 25, 2025.

These changes flow down to and directly impact the HHSAR and require immediate updates.

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, contracts, and orders 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:

1. Follow the RFO HHSAR part 337 deviation text, including the corresponding part 352 deviation text, instead of HHSAR parts 337 and corresponding 352 as codified at 48 CFR Chapter 3. The RFO HHSAR deviation text is shown in the Attachment listed in Section 11.
   • Clean (without markup) versions of RFO HHSAR deviation texts are available at https://www.hhs.gov/grants-contracts/contracts/contract-policies-regulations/hhsar-overhaul/index.html.
2. When issuing new solicitations, contracts, or orders:
   1. Do not include the following clause and provision:
      • Clause 352.237-70, Pro-Children Act (DEC 2015)
      • Clause 352.237-71, Crime Control Act of 1990—Reporting of Child Abuse (DEC 2015)
      • Clause 352.237-72, Crime Control Act of 1990—Requirement for Background Checks (DEC 2015)
      • Clause 352.237-73, Indian Child Protection and Family Violence Act (DEC 2015)
      • Clause 352.237-74, Non-Discrimination in Service Delivery (DEC 2015)
      • Clause 352.237-75, Key Personnel (DEC 2015)
   2. Include, if applicable, the following deviated clause using the deviated text shown in the Attachment listed in Section 11:
      • Clause 352.237-70, Nonsmoking Policy—Delivery of Services to Children (OCT 2026) (RFO DEVIATION)
      • Clause 352.237-71, Reporting of Child Abuse (OCT 2026) (RFO DEVIATION)
      • Clause 352.237-72, Requirement for Background Checks (OCT 2026) (RFO DEVIATION)
      • Clause 352.237-73, Indian Child Protection and Family Violence Act—Background Investigations (OCT 2026) (RFO DEVIATION)
      • Clause 352.237-75, Key Personnel (OCT 2026) (RFO DEVIATION)
3. For open solicitations:
   1. Amend the solicitation to remove the clause and provision listed in B.1 above.
   2. Amend the solicitation to include, if applicable, the clause listed in B.2 above.
4. For existing contracts and orders, at the next available opportunity:
   1. Modify the contract or order to remove the clause listed in B.1 above.
   2. Modify the contract or order to include, if applicable, the deviated clause listed in B.2 above.

8. AUTHORITY:

This CD is issued under the authority of RFO FAR 1.304, Class deviations; RFO HHSAR 301.103, Authority; and RFO HHSAR 301.302, Policy.

9. SUMMARY OF HHSAR CHANGES:

To implement or align with the requirements of the RFO, the HHSAR is deviated, renumbered, revised, and updated with plain language edits. Notable changes are summarized below, and all changes are reflected in the Attachment listed in Section 11.

• HHSAR Part 337 – Service Contracting
  • Part 337 – Service Contracting—General
    • Revised part title to reflect FAR part 37 title revision.
  • Subpart 337.1 – Service Contracts—General.
    • Removed and reserved subpart as material for clause prescriptions align with other new RFO FAR part 37 subparts as noted below.
    • Underlying section 337.103, Contractor responsibility, and the individual prescriptions for clauses are removed.
    • Moves content related to the provision of certain services involving child care or children (sections 337.103(d)(1) – (4), to new HHSAR subpart 337.5—Child Care Services, section 337.570, Contract clauses, to align with the FAR.
    • Removes a prescription for clause 352.237-74, Non-Discrimination in Service, Delivery, based on Executive Orders as described below. Previously removed by HHSAR CD 2025-02, “Updates to HHSAR Parts 309, 322, 323, 337, and 352,” issued on March 31, 2025.
    • Moves content involving a prescription for a key personnel clause to new HHSAR subpart 337.8—Other Service Considerations, where such general content applying to many types of service contracts fall and thus better aligns with the FAR.
  • Subpart 337.5 – Child Care Services.
    • Added to align with new RFO FAR part 37 as the appropriate placement for statutory requirements and agency policy on providing services to children and certain special contract requirements.
    • Includes underlying section 337.502-170, with subsections for specific requirements for the text moved from HHSAR subpart 337.1, and section 337.500 to prescribe associated clauses. Contains revised and updated text moved from coverage under HHSAR subpart 337.1
    • Section 337.502-170, Policy—Special contract requirements. Added a section header/title and no content. Includes underlying subsections 337.502-170-1 through 337.502,170-4 as described below. Supplements the FAR to implement HHS unique statutory requirements and agency policy for the provision of certain child care services in HHS contracts.
    • Section 337.502-170-1, Prohibition on smoking in facilities during delivery of services to children. Added to implement statutory requirements and agency policy prohibiting smoking in any indoor facility, or portion of a facility, by contractors providing children’s service (20 U.S.C. 7973). A prescription for revised and retitled clause 352.237-70, Nonsmoking Policy—Delivery of Services to Children, was moved from section 337.103(d)(1); now prescribed at section 337.570(a).
    • Section 337.502-170-2, Reporting of child abuse by covered professionals. Added to implement statutory requirements and agency policy on the requirement to report suspected child abuse incidents by certain covered professionals who work on Federal land or in a Federally-operated or contracted facility. Mandates reporting suspected child abuse when the individual has reason to believe a child has suffered an incident of child abuse (34 U.S.C. 20341). A prescription for revised and retitled clause 352.237-71, Reporting of Child Abuse, was moved from section 337.103(d)(2); now prescribed at section 337.570(b).
    • Section 337.502-170-3, Requirement for background checks—child care services. Added to provide statutory requirements and agency policy on the requirement for criminal history background checks for all individuals who provide child care services to children under age 18 (34 U.S.C. 20351). A prescription for revised and retitled clause 352.237-72, Requirement for Background Checks, was moved from section 337.103(d)(3); now prescribed at section 337.570(c).
    • Section 337.502-170-4, Indian Child Protection and Family Violence Act-background investigations. Added to provide statutory requirements and agency policy prohibiting contractors from assigning individuals to work in positions involving regular contact with or control over Indian children if those individuals have been convicted of crimes of violence or other offenses set forth in 25 U.S.C. 3207(b). Clarifies the requirement that assigned individuals must have a completed character and background investigation and outlines restrictions before completion of such investigations (25 U.S.C. 3201 et seq.). A clause for revised and retitled clause 352.237-73, Indian Child Protection and Family Violence Act—Background Investigations, was moved from section 337.103(d)(4); now prescribed at section 337.570(d).
    • Section 337.570, Contract clauses, paragraphs (a) – (b). Adds the prescriptions for revised and retitled clauses 352.237-70 through 352.237-73. Clauses are described below in part 352.
  • Subpart 337.8—Other Service Considerations
    • Contains important agency policy and a key personnel clause prescription updated and revised to ensure enterprise-wide standardization. Revises and moves content from HHSAR subpart 337, section 337.103(f) under this new subpart to align with RFO FAR part 37 content. Includes underlying sections 337.802-70 and 337.802-570 as noted below.
    • Section 337.802-70, Key personnel. Adds important agency policy on contractor designations of key personnel and requirement for written requests and approval by the contracting officer for key personnel replacements.
    • Section 337.802-570, Contract clause. Added a revised and streamlined prescription for clause 352.237-75, Key Personnel. Moved from section 337.570(f).
  • HHSAR Part 352 – Solicitation Provisions and Contract Clauses
    • Clause 352.237-70, Nonsmoking Policy – Delivery of Services to Children. Revised title, updated citations, and streamlined content to provide clarity and plain language. Updated title from “Pro-Children Act” to better describe the clause content.
    • Clause 352.237-71, Reporting of Child Abuse. Revised title, updated citations, and streamlined content to provide clarity and plain language. Updated title from “Crime Control Act of 1990—Reporting of Child Abuse” to focus on the clause content. Added subcontract flow down requirement.
    • Clause 352.237-72, Requirement for Background Checks. Revised title, updated citations, and streamlined content to provide clarity and plain language. Updated title from “Crime Control Act of 1990—Requirement for Background Checks” to focus on the clause content. Added subcontract flow down requirement.
    • Clause 352.237-73, Indian Child Protection and Family Violence Act—Background Investigations. Revised title, updated citations, and streamlined content to provide clarity and plain language. Updated title from “Indian Child Protection and Family Violence Act” to better describe the focus of the content. Added subcontract flow down requirement.
    • Clause 352.237-74, Non-Discrimination in Service Delivery. Removed and Reserved clause 352.237-74. Content previously removed by HHSAR CD 2025-02, entitled, “Updates to HHSAR Parts 309, 322, 323, 337, and 352,” issued on March 31, 2025. Implements requirements of Executive Orders EO 14148 of January 20, 2025, Initial Rescissions of Harmful Executive Orders and Actions, specifically Section 2; EO 14168 of January 20, 2025, Defending Woman From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, and EO 14173 of January 21, 2025, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, specifically Section 3.
    • Clause 352.237-75, Key Personnel. Updated citations and streamlined content to provide clarity, plain language and active voice. Added other circumstances where notice is required and when the request for changes in key personnel must be submitted.

10. CONTACT:

Acquisition workforce members with questions regarding this CD should contact their cognizant Division 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 – RFO HHSAR Part 337 & Applicable Part 352 Deviation Text