48 CFR 846.408-72 Supply depot selection of samples for test.
(a) The number of samples to be selected will be as stated in the
item specifications or as specified by the contracting officer for items
without lot numbers.
(b) On items bearing lot numbers, one unit will be selected from each
lot to be tested, unless otherwise specified. Contracts will require
that the contractor's shipping document or packing list indicate the lot
numbers of items shipped to each depot on the contract. To reduce
handling and transportation costs, samples of lots received at more than
one location will be submitted as follows:
(1) The VA Supply Depot, Hines, Illinois, will submit samples from
all lots received.
(2) The VA Supply Depot, Somerville, New Jersey, will submit samples
from lots not received at Hines.
(3) The VA Supply Depot, Bell, California, will submit samples from
lot not received at Hines or Somerville.
(c) On drug items, when there is only one unit in the lot to be
tested or when five or more lots on the same order require sampling, the
contracting officer will be notified and requested to furnish
instructions. Such notification will be transmitted by teletype.
(d) To facilitate handling and packing, samples may be consolidated
into one package. However, under no circumstances will shipment of
samples be held more than 48 hours from time of receipt.
48 CFR 846.470 Use of commercial organizations for inspections and
grading services.
Commercial organizations may be used for inspection and grading
services when it is determined that the results of a technical
inspection or grading are dependent upon the application of scientific
principles or specialized techniques, and it is further determined that:
(a) The Department of Veterans Affairs is unable to employ the
personnel qualified to properly perform the services and is unable to
locate another Federal agency capable of providing the service.
(b) The inspection or grading results issued by a private
organization are essential to verify the acceptance or rejection of a
special commodity.
(c) The services may be performed without direct Government
supervision.
(49 FR 12625, Mar. 29, 1984, as amended at 54 FR 40065, Sept. 29,
1989)
48 CFR 846.471 Determination authority.
The determinations required in 846.470 will be made by:
(a) The Director, Office of Construction, for those items and
services for which purchase authority has been assigned to him/her.
(b) The Director, Veterans Canteen Service, VHS&RA, for those items
and services purchased, or contracted for, by the Veterans Canteen
Service (except those items purchased from Department of Veterans
Affairs supply sources).
(c) The Deputy Assistant Secretary for Acquisition and Materiel
Management for all other supplies, equipment and services.
48 CFR 846.472 Inspection of repairs for properties under the Loan
Guaranty and Direct Loan Programs.
Final inspection will be made of all repair programs upon completion.
In addition such intermediate or progress inspections will be made on
extensive or technical jobs as specified in the contract.
48 CFR 846.472-1 Repairs of $1,000 or less.
(a) Generally, inspections required will be made by the management
broker. If the property has not been assigned to a management broker or
if it has been determined that the nature of the repairs requires
supervision by a technician, the inspection will be made by a qualified
fee or staff inspector.
(b) There is no form prescribed for this inspection but VA Form
26-1839, Compliance Inspection Report, may be used if desired.
Regardless of the form in which the report is submitted, it will be in
sufficient detail to identify the contractor, property, and the repair
program and to enable the contracting officer to make a determination
that the work is being performed satisfactorily or completed in
accordance with the terms of the contract.
48 CFR 846.472-2 Repairs in excess of $1,000.
(a) The final inspection and any intermediate or progress inspections
on repairs exceeding $1,000 will be made by a qualified fee or staff
inspector. If a management broker is qualified to supervise major
repairs, he/she may be authorized to conduct the inspections.
(b) Report of inspections will be made on VA Form 26-1839, Compliance
Inspection Report. The form will be completed to identify the property,
contractor, and repair program and will also include such detailed
information to enable the contracting officer to make a determination
that the work is being performed satisfactorily or that it has been
completed in accordance with the contract terms. Any deficiencies noted
will be itemized and explained in detail.
48 CFR 846.472-2 PART 847 -- TRANSPORTATION
48 CFR 846.472-2 Subpart 847.3 -- Transportation in Supply Contracts
847.303-1 F.o.b. origin.
847.303-70 F.o.b. origin, freight prepaid, transportation charges to
be included on the invoice.
847.304 Determination of delivery terms.
847.304-1 General.
847.305-70 Potential destinations known but quantities unknown.
Authority: 38 U.S.C. 210 and 40 U.S.C. 486(c).
Source: 49 FR 12627, Mar. 29, 1984, unless otherwise noted.
48 CFR 846.472-2 Subpart 847.3 -- Transportation in Supply Contracts
48 CFR 847.303-1 F.o.b. origin.
(a) Normally shipments falling within this category will be shipped
on a Government bill of lading, except for those shipments covered by 41
CFR 101-41.304-2.
(b) Shipment of flat bronze markers by the vendor, as directed by the
Director, Monument Service, or his/her designee, will be made by parcel
post. VA Form 40-4951, Order for Flat Bronze Marker, will be used for
this purpose.
48 CFR 847.303-70 F.o.b. origin, freight prepaid, transportation charges
to be included on the invoice.
(a) The delivery terms will be stated as ''f.o.b. origin,
transportation prepaid, with transportation charges to be included on
the invoice,'' under each of the following circumstances:
(1) When it has been carefully determined that an f.o.b. origin
purchase or delivery order will have transportation charges not in
excess of $100 and the occasional exception does not exceed that amount
by an unreasonable amount;
(2) Single parcel shipments via express, courier, small package, or
similar carriers, regardless of shipping cost, if the parcel shipped
weighs 70 pounds or less and does not exceed 108 inches in length and
girth combined;
(3) Multi-parcel shipments via express, courier small package, or
similar carriers for which transportation charges do not exceed $250 per
shipment.
(b) Orders issued on VA Form 90-2138, Orders for Supplies or
Services, will direct the vendor's attention to shipping instructions on
the reverse of the form. When VA Form 90-2138 is not used, the vendor
will be instructed as follows:
(1) Consistent with the terms of the contract, pack, mark and prepare
shipment in conformance with carrier requirements to protect the
personal property and assure assessment of the lowest applicable
transportation charge.
(2) Add transportation charges as a separate item on your invoice.
The invoice must bear the following certification: ''The invoiced
transportation charges have been paid and evidence of such payment will
be furnished upon the Government's request.''
(3) Do not include charges for insurance or valuation on the invoice
unless the order specifically requires that the shipment be insured or
the value be declared.
(4) Do not prepay transportation charges on this order if such
charges are expected to exceed $100. Ship collect and annotate the
commercial bill of lading, ''To be converted to Government Bill of
Lading.''
(c) Each contracting officer is responsible for:
(1) Making a diligent effort to obtain the most accurate estimate
possible of transportation charges; and
(2) Utilizing the authority in paragraph (a) of this section only
when consistent with the circumstances in that paragraph.
(d) When in accordance with FAR Subpart 28.3 and FAR 47.102 it is
determined that a shipment is to be insured or the value declared, the
vendor will be specifically instructed to do so on the order, when a
written order is used. If the order is an oral order, all copies of the
purchase request will be annotated to show that insurance/declared value
was specifically requested.
48 CFR 847.304 Determination of delivery terms.
48 CFR 847.304-1 General.
When alternative delivery terms are appropriate but the contracting
officer elects to use only one in the invitation for bids, or request
for proposals, he shall document the contract file to show his reasons
for so doing.
48 CFR 847.305-70 Potential destinations known but quantities unknown.
When the VA Marketing Center contracts for decentralized procured
items by all Department of Veterans Affairs installations, the
evaluation of bids must follow specific procedures. To place each bid
on an equal basis, even though specific quantities required by each
hospital cannot be predetermined, an anticipated demand factor will be
used in proportion to the number of hospital beds or patient workload.
The clause prescribed in 852.247-70 shall be used in these instances.
48 CFR 847.305-70 PART 849 -- TERMINATION OF CONTRACTS
48 CFR 847.305-70 Subpart 849.1 -- General Principles
Sec.
849.106 Fraud and other criminal conduct.
849.107 Audit of prime contract settlement proposals and subcontract
settlements.
849.111 Review and approval of proposed settlements.
849.111-70 Settlement review boards.
849.111-71 Required review and approval.
849.111-72 Submission of information.
48 CFR 847.305-70 Subpart 849.4 -- Termination for Default
849.402 Termination of fixed-price contracts for default.
849.402-6 Repurchase against contractor's account.
Authority: 38 U.S.C. 210 and 40 U.S.C. 486(c).
Source: 49 FR 12628, Mar. 29, 1984, unless otherwise noted.
Editorial Note: For nomenclature change, see 52 FR 42439, Nov. 5,
1987.
48 CFR 847.305-70 Subpart 849.1 -- General Principles
48 CFR 849.106 Fraud or other criminal conduct.
When the circumstances set forth in FAR 49.106 are encountered, the
contracting officer will immediately discontinue all negotiations. The
contracting officer will submit all of the pertinent facts necessary to
support his/her reasoning to the Deputy Assistant Secretary for
Acquisition and Materiel Management (93), (or the Deputy Assistant
Secretary for Facilities (08) in the case of contracting officers from
the Office of Facilities). The Deputy Assistant Secretary for
Acquisition and Materiel Management (93), or the Office of Facilities
will review the submission and fully develop the facts. If the evidence
indicates fraud or other criminal conduct, the Deputy Assistant
Secretary for Acquisition and Materiel Management will forward the
submission with his/her recommendations, through channels (to include
the General Counsel, if appropriate), to the Inspector General (51) for
referral to the Department of Justice. The contracting officer will be
advised by the Deputy Assistant Secretary for Acquisition and Materiel
Management or the Office of Facilities as to any further action to be
taken. Pending receipt of this advice, the matter will not be discussed
with the contractor. No collection, recovery or other settlement action
will be initiated while the matter is in the hands of the Department of
Justice without first obtaining the concurrence of the U.S. Attorney
concerned, through the Inspector General. If inquiry is made by the
contractor, he/she will be advised only that the proposal has been
forwarded to higher authority.
48 CFR 849.107 Audit of prime contract settlement proposals and
subcontract settlements.
Contracting officers will submit settlement proposals for review and
audit prior to taking any further action, in accordance with the
provisions and claim limitations applicable to prime and subcontractors
as set forth in FAR 49.107. Contracting officers in the Office of
Acquisition and Materiel Management and Office of Facilities who are
located in the VA Central Office have the option to request audits
directly from the cognizant audit agencies or to request audits through
the Assistant Inspector General for Policy, Planning and Resources
(53C). All other contracting officers located in the VA Central Office
and the Office of General Counsel will send requests for audit to the
Assistant Inspector General for Policy, Planning and Resources (53C), to
request audits directly from the cognizant agencies. Audit control
numbers may be obtained verbally from the Deputy Assistant Secretary for
Acquisition and Materiel Management (93D).
(49 FR 12628, Mar. 29, 1984, as amended at 52 FR 42440, Nov. 5, 1987;
54 FR 40065, Sept. 29, 1989)
849.111 Review and approval of proposed settlements.
48 CFR 849.111-70 Settlement review boards.
The Deputy Assistant Secretary for Acquisition and Materiel
Management and the Deputy Assistant Secretary for Facilities will each
establish within his/her own organization a settlement review board.
The board may be established on a permanent or temporary basis. More
than one such board may be established if settlements are to be made at
different locations, if personnel with different qualifications are
needed for different contracts, or if for other reasons, the
establishment of more than one board is considered desirable. Each
settlement review board should be composed of at least three qualified
and disinterested employees. The membership of each board should
include at least one lawyer and one accountant.
48 CFR 849.111-71 Required review and approval.
Prior to executing a settlement agreement, or issuing a determination
of the amount due under the termination clause of a contract, or
approving or ratifying a subcontract settlement, the contracting officer
shall submit each such settlement or determination for review and
approval by a settlement review board if:
(a) The amount of settlement, by agreement or determination, involves
$50,000 or more; or
(b) The settlement or determination is limited to adjustment of the
fee of a cost-reimbursement contract or subcontract, and:
(1) In the case of a complete termination, the fee, as adjusted, is
$50,000 or more; or
(2) In the case of a partial termination, the fee, as adjusted, with
respect to the terminated portion of the contract or subcontract is
$50,000 or more; or
(c) The head of the contracting activity concerned determines that a
review of a specific case or class of cases is desirable; or
(d) The contracting officer, in his/her discretion, desires review by
the settlement review board.
48 CFR 849.111-72 Submission of information.
(a) The contracting officer shall submit to the appropriate
settlement review board a statement of the proposed settlement agreement
or determination, supported by such detailed information as is required
for an adequate review. This information should normally include copies
of:
(1) The contractor's or subcontractor's settlement proposal,
(2) The audit report,
(3) The property disposal report and any required approvals in
connection therewith,
(4) The contracting officer's memorandum explaining the settlement,
and
(5) Any other relevant material that will assist the board in
arriving at a decision to approve or disapprove the proposal. The board
may, in its discretion, require the submission of additional
information.
(b) When a review of a proposed settlement is required and the
contract covers supplies, equipment or services, other than construction
chargeable to Construction Appropriations, the contracting officer will
submit the proposed settlement or determination to the settlement review
board through the Deputy Assistant Secretary for Acquisition and
Materiel Management.
(c) When the contract covers construction chargeable to Construction
Appropriations and review is required, the proposed settlement or
determination will be submitted by the contracting officer to the
settlement review board through the Deputy Assistant Secretary for
Facilities.
48 CFR 849.111-72 Subpart 849.4 -- Termination for Default
849.402 Termination of fixed-price contracts for default.
48 CFR 849.402-6 Repurchase against contractor's account.
(a) VA Form 90-2237, Request, Turn-in, and Receipt for Property or
Services, or the file copy of the purchase order covering the purchase
of supplies, equipment or services against a defaulting contractor shall
be annotated to show the name of the defaulted contractor, the contract
number, the contract price, the name of the contractor from whom
procurement is made, the price paid, the competition secured and the
difference in cost, if any, to the Department of Veterans Affairs. When
reprocurement results in the payment of excess costs and the purchase is
made through the Supply Fund, the excess costs, when collected, shall be
deposited to the credit of the Supply Fund. In all other instances, the
excess costs, when collected, shall be deposited to General Fund
Receipts.
(b) Contracting officers, when purchasing against a defaulted
contractor, shall procure the items in a manner that will protect the
interests of the contractor as well those of the Government.
48 CFR 849.402-6 SUBCHAPTER H -- CLAUSES AND FORMS
48 CFR 849.402-6 PART 852 -- SOLICITATION PROVISIONS AND CONTRACT CLAUSES
48 CFR 849.402-6 Subpart 852.1 -- Instructions for Using Provisions and
Clauses
Sec.
852.101 Using Part 852.
48 CFR 849.402-6 Subpart 852.2 -- Texts of Provisions and Clauses
852.203-70 Ethics in Government Act.
852.207-70 Report of employment under commercial activities.
852.207-71 Notice of cost comparison.
852.207-72 Cost comparison criteria -- VA medical facilities.
852.208-70 Changes in rates for public utilities.
852.209-70 Organizational conflicts of interest.
852.210-70 Requirements for operating and maintenance manuals.
852.210-71 Guarantee clause.
852.210-72 Inspection.
852.210-73 Frozen processed foods.
852.210-74 Telecommunications equipment.
852.210-75 Technical industry standards.
852.210-76 Noncompliance with packaging, packing and/or marking
requirements.
852.210-77 Brand name or equal.
852.212-70 Liquidated damages.
852.214-70 Caution to bidders -- bid envelopes.
852.214-71 Alternate items.
852.214-73 Bid samples.
852.216-70 Estimated quantities for requirements contracts.
852.219-70 Veteran-owned small business.
852.222-70 Contract Work Hours and Safety Standards Act -- nursing
home care contract supplement.
852.228-70 Bond premium adjustment.
852.229-70 Purchases from patient's funds.
852.229-71 Purchases for patients using Government funds and/or
personal funds of patients.
852.233-2 Service of protest.
852.233-70 Protest content.
852.236-70 Clauses and provisions for fixed-price construction
contracts.
852.236-71 Specifications and drawings for construction.
852.236-72 Performance of work by the contractor.
852.236-73 Bonds.
852.236-74 Inspection of construction.
852.236-75 Guaranty.
852.236-76 Correspondence.
852.236-77 Reference to ''standards''.
852.236-78 Government supervision.
852.236-79 Daily report of workers and materials.
852.236-80 Subcontracts and work coordination.
852.236-81 Work coordination (alternate provision).
852.236-82 Payments under fixed-price construction contracts (without
NAS).
852.236-83 Payments under fixed-price construction contracts
(including NAS).
852.236-84 Schedule of work progress.
852.236-85 Supplementary labor standards provisions.
852.236-86 Workman's compensation.
852.236-87 Safety requirements.
852.236-88 Contract changes.
852.236-89 Buy American Act.
852.236-90 Restriction on submission and use of equal products.
852.236-91 Special notes.
852.237-70 Contractor responsibilities.
852.237-71 Indemnification and insurance (vehicle and aircraft
service contracts).
852.247-70 Transportation provision for bid evaluation.
852.270-1 Representatives of contracting officers.
852.270-2 Bread and bakery products.
852.270-3 Purchase of shell fish.
852.270-4 Commercial advertising.
852.271-70 Services provided eligible beneficiaries.
852.271-71 Visits to Department of Veterans Affairs guidance centers.
852.271-72 Time spent by counselee in counseling process.
852.271-73 Use and publication of counseling results.
852.271-74 Inspection.
852.271-75 Extension of contract period.
Authority: 38 U.S.C. 210 and 40 U.S.C. 486(c).
48 CFR 849.402-6 Subpart 852.1 -- Instructions for Using Provisions and Clauses
48 CFR 852.101 Using Part 852.
Part 852 prescribes supplemental provisions and clauses to the FAR.
Provision and clause numbering are as prescribed in FAR 52.101 (e.g,
supplementary Architect-Engineer and Construction clauses are numbered
852.236-70, 852.236-71, etc.).
(50 FR 794, Jan. 7, 1985)
48 CFR 852.101 Subpart 852.2 -- Texts of Provisions and Clauses
48 CFR 852.203-70 Ethics in Government Act.
As prescribed by 803.101-3 the following provision will be made a
part of all solicitations and requests for proposals anticipated to
result in contracts exceeding the small purchase limitation:
The offeror certifies that in developing a proposal in response to
the solicitation of this contract, he/she did not utilize the services
of any former Department of Veterans Affairs employee acting in
violation of Title V of the Ethics in Government Act, 18 U.S.C. 207.
That law provides that:
(a) A former Department of Veterans Affairs employee who, as such an
employee, personally and substantially participated in a particular
procurement process, is prohibited from appearing before the Department
on behalf of an offeror responding to a solicitation resulting from that
process and from making any contact with the Department on behalf of the
offeror with intent of influencing action related to the solicitation;
(b) A former Department of Veterans Affairs employee who, during the
last year as such an employee, was officially responsible for a
particular procurement process, is prohibited, for two years after
leaving the Department of Veterans Affairs, from appearing before the
Department on behalf of an offeror responding to a solicitation
resulting from that process and from making any contact with the
Department on behalf of the offeror with the intent of influencing
action related to the solicitation;
(c) Any former top-level Department of Veterans Affairs employee
(i.e., executive-level employee; employee paid at the rate of GS-17 or
above if designated pursuant to 5 CFR 737.25(b); and Senior Executive
Service employee if designated pursuant to 5 CFR 737.25(b)) who, as such
an employee, personally and substantially participated in a particular
procurement process, is prohibited, for a period of two years, from
representing, aiding, consulting, or assisting an offeror by presence
before the Government at any formal or informal appearance related to
that procurement process;
(d) For a period of one year, any former top-level employee of the
Department of Veterans Affairs (as described in the preceding paragraph)
is prohibited from appearing before the Department of Veterans Affairs
on behalf of any offeror responding to a contract solicitation and is
prohibited from making any oral or written communications with the
Department of Veterans Affairs on behalf of such an offeror, with the
intent of influencing action related to a contract.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985;
54 FR 40065, Sept. 29, 1989)
48 CFR 852.207-70 Report of employment under commercial activities.
As prescribed in 807.304-75, the following clause will be included in
A-76 cost comparison solicitations:
(a) Consistent with the Government post-employment conflict of
interest regulations, the contractor shall give adversely affected
Federal employees the right of first refusal for all employment openings
under this contract for which they are qualified.
(b) Definitions. (1) An ''adversely affected Federal employee'' is:
(i) Any permanent Federal employee who is assigned to the government
commercial activity, or
(ii) Any employee identified for release from his or her competitive
level or separated as a result of the contract.
(2) ''Employment openings'' are position vacancies created by this
contract which the contractor is unable to fill with personnel in the
contractor's employee at the time of the contract award, including
positions within a 50 mile radius of the commercial activity which
indirectly arise in the contractor's organization as a result of the
contractor's reassignment of employees due to the award of this
contract.
(3) The ''contract start date'' is the first day of contractor
performance.
(c) Filling employment openings. (1) For a period beginning with
contract award and ending 90 days after the contract start date, no
person other than an adversely affected Federal employee on the current
listing provided by the contracting officer shall be offered an
employment opening until all adversely affected and qualified Federal
employees identified by the contracting officer have been offered the
job and refused it.
(2) The contractor may select any person for an employment opening
when there are no qualified adversely affected Federal employees on the
latest current listing provided by the contracting officer.
(d) Contracting reporting requirements. (1) No later than five
working days after contract award the contractor shall furnish the
contracting officer with the following:
(i) A list of employment openings including salaries and benefits,
(ii) Sufficient job application forms for adversely affected Federal
employees.
(2) By contract start date, the contractor shall provide the
contracting officer with the following:
(i) The names of adversely affected Federal employees offered an
employment opening,
(ii) The date the offer was made,
(iii) A brief description of the position,
(iv) The date of acceptance of the offer and the effective date of
employment,
(v) The date of rejection of the offer, if applicable for salary and
benefits contained in the rejected offer, and
(vi) The names of any adversely affected Federal employees who
applied but were not offered employment and the reason(s) for
withholding an offer.
(3) For the first 90 days after the contract start date, the
contractor shall provide the contracting officer with the names of all
persons hired or terminated under the contract within five working days
of such hiring or termination.
(e) Information provided to the contractor. (1) No later than 10
working days after the contract award, the contracting officer shall
furnish the contractor a current list of adversely affected Federal
employees exercising the right of first refusal, along with their
completed job application forms.
(2) Between the contract award and start dates, the contracting
officer shall inform the contractor of any reassignment or transfer of
adversely affected employees to other Federal positions.
(3) For a period up to 90 days after contract start date, the
contracting officer will periodically provide the contractor with an
updated listing of adversely affected Federal employees reflecting
employees recently released from their competitive levels or separated
as a result of the contract award.
(f) Qualification determination. The contractor has a right under
this clause to determine adequacy of the qualifications of adversely
affected Federal employees for any employment openings. However, an
adversely affected Federal employee who held a job in the Government
commercial activity which directly corresponds to an employment opening
shall be considered qualified for the job. Questions concerning the
qualifications of adversely affected Federal employees for specific
employment openings shall be referred to the contracting officer for
determination. The contracting officer's determination shall be final
and binding on all parties.
(g) Relation to other statutes, regulations and employment policies.
The requirements of this clause shall not modify or alter the
contractor's responsibilities under statutes, regulations or other
contract clauses pertaining to the hiring of veterans, minorities or
handicapped persons.
(h) Penalty for Noncompliance. Failure of the contractor to comply
with any provision of this clause may be grounds for termination for
default.
(53 FR 43211, Oct. 26, 1988; 53 FR 46872, Nov. 21, 1988)
48 CFR 852.207-71 Notice of cost comparison.
When authorized in accordance with 807.304-72, the FAR provision
52.207-1, Notice of Cost Comparison (Sealed-Bid), or 52.207-2, Notice of
Cost Comparison (Negotiated), whichever is appropriate, will be
supplemented with the following provision for the circumstances
prescribed:
(a) When only COCO bids or only GOCO bids will be accepted:
(a) Reference is made to the provision ''Notice of Cost Comparison
(Sealed-Bid) or (Negotiated),'' FAR 52.207-1 (or 52.207-2).
(b) Bidders (offerors) are placed on notice that no contract will be
awarded, irrespective of cost comparison results, unless two or more
responsive and responsible financially autonomous bidders (offerors)
respond to this solicitation.
(b) If GOCO and COCO bids/offers will be considered, the following
supplemental provision will be used:
(a) Reference is made to the provision ''Notice of Cost Comparison
(Sealed-Bid) or (Negotiated),'' FAR 52.207-1 (or 52.207-2).
(b) Bidders (offerors) are placed on notice that this solicitation
allows contractors to bid (offer) on the basis of Contractor-owned,
Contractor-operated (COCO) and/or Government-owned, Government-operated
(GOCO) basis. However, a COCO method of performance will only be
considered if two or more responsive and responsible financially
autonomous firms bid (offer) on a COCO basis, and a GOCO bid will only
be considered if two or more responsive and responsible financially
autonomous firms bid (offer) on a GOCO basis.
(53 FR 43212, Oct. 26, 1988; 53 FR 46872, Nov. 21, 1988)
48 CFR 852.207-72 Cost comparison criteria -- VA medical facilities.
As prescribed in 807.302(a), the following provision will be included
in the solicitation for cost comparison of VHS&RA activities currently
performed at VA medical centers by VA employees.
Bidder/offerors are placed on notice that the cost comparison
calculations will conform to the criteria prescribed in Title 38, United
States Code, Section 5010. In accordance with Section 5010(c)(21), a
contract award will not be made unless the total cost of performance
over the first five years of such performance (including the cost to the
Government of conducting the study) is lower by 15 percent or more than
the cost of performance by Federal employees.
(53 FR 43212, Oct. 26, 1988; 53 FR 46872, Nov. 21, 1988)
48 CFR 852.208-70 Change in rates for public utilities.
When a contract covers services to be rendered by a public service
corporation, and the rates charged for such services are regulated by a
Federal, State, or municipal commission, the following provision will be
included:
The rates specified herein are not in excess of those charged the
general public for similar service and will be increased or decreased
when such action is approved by the governing regulatory commission.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.209-70 Organizational conflicts of interest.
The following provision will be used as prescribed in 809.508-2:
(a) The offeror represents to the best of his/her knowledge and
belief that the award of the contract would not involve organizational
conflicts of interest as defined in this representation. The term
organizational conflicts of interests shall mean that a relationship
exists whereby an offeror or a contractor (including his/her chief
executive, directors, proposed consultants and subcontractors) has
interests which may: (1) Diminish his/her capacity to give impartial,
technically sound, objective assistance and advice or may otherwise
result in a biased work product; or (2) result in an unfair competitive
advantage. It does not include the ''normal flow of benefits'' from the
performance of a contract.
(b) Based on this representation and any other information solicited
by the contracting officer, it may be determined organizational
conflicts of interest exist which would warrant disqualifying the
contractor for award of the contract unless the organizational conflicts
of interest can be mitigated to the contracting officer's satisfaction
by negotiating terms and conditions of the contract to that effect. In
the case of a formally advertised solicitation, the apparent successful
offeror may enter into a supplemental agreement which mitigates the
organizational conflicts of interest.
(c) Nondisclosure or misrepresentations of organizational conflicts
of interest at the time of the offer, or arising as a result of a
modification to the contract, may result in the termination of the
contract at no expense to the Government.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.210-70 Requirements for operating and maintenance manuals.
(a) Solicitations and requests for proposals for technical medical
and other technical equipment and devices issued by a field facility
will normally require the contractor to provide operating and
maintenance manuals.
(b) The purpose of the requirement is for the manufacturer to provide
the Department of Veterans Affairs a manual or groups of manuals that
will allow the in-house repair of the equipment purchased. Unless the
facility Chief, Engineering Service, indicates that such service manuals
are not needed, each invitation for bid or request for proposal for
technical medical or other technical equipment and devices will include
the following clauses for operating and maintenance manuals:
(a) The successful bidder will supply operation/service (maintenance)
manuals with each piece of equipment in the quantity specified in the
solicitation and resulting purchase order. As a minimum, the manual(s)
shall be bound and equivalent to the manual(s) provided the
manufacturer's designated field service representative as well as comply
with all the requirements in paragraphs (b) through (i) of this clause.
Sections, headings and section sequence identified in (b) through (i) of
this clause are typical and may vary between manufacturers. Variances
in the sections, headings and section sequence, however, do not relieve
the manufacturer of his responsibility in supplying the technical data
called for therein.
(b) Title Page and Front Matter -- The title page shall include the
equipment nomenclature, model number, effective date of the manual and
the manufacturer's name and address. If the manual applies to a
particular version of the equipment only, the title page shall also list
that equipment's serial number. Front matter shall consist of the Table
of Contents, List of Tables, List of Illustration s and a frontispiece
(photograph or line drawing) depicting the equipment.
(c) Section I, General Description -- This section shall provide a
generalized description of the equipment or devices and shall describe
its purpose or intended use. Included in this section will be a table
listing all pertinent equipment specifications, power requirements,
environmental limitations and physical dimensions.
(d) Section II, Installation -- Section II shall provide pertinent
installation information. It shall list all input and output connectors
using applicable reference designators and functional names as they
appear on the equipment. Included in this listing will be a brief
description of the function of each connector along with the connector
type. Instructions shall be provided as to the recommended method of
repacking the equipment for shipment (packing material, labeling, etc.).
(e) Section III, Operation -- Section III will fully describe the
operation of the equipment and shall include a listing of each control
with a brief description of its function and step-by-step procedures for
each operating mode. Procedures will use the control(s) nomenclature as
it appears on the equipment and will be keyed to one or more
illustrations of the equipment. Operating procedures will include any
preoperational checks, calibration adjustments and operation tests.
Notes, cautions and warnings shall be set off from the text body so they
may easily be recognizable and will draw the attention of the reader.
Illustrations should be used wherever possible depicting equipment
connections for test, calibration, patient monitoring and measurements.
For large, complex and/or highly versatile equipment capable of many
operating modes and in other instances where the Operation Section is
quite large, operational information may be bound separately in the form
of an Operators Manual. The providing of a separate Operators Manual
does not relieve the supplier of his responsibility for providing the
minimum acceptable maintenance data specified herein.
Where applicable, flow charts and narrative descriptions of software
shall be provided. If programming is either built-in and/or user
modifiable, a complete software listing shall be supplied. Equipment
items with software packages shall also include diagnostic routines and
sample outputs. Submission information shall be given in the
Maintenance Section to identify equipment malfunctions which are
software related.
(f) Section IV, Principles of Operation -- This section shall
describe in narrative form the principles of operation of the equipment.
Circuitry shall be discussed in sufficient detail to be understood by
technicians and engineers who possess a working knowledge of electronics
and a general familiarity with the overall application of the devices.
The circuit descriptions should start at the overall equipment level and
proceed to more detailed circuit descriptions. The overall description
shall be keyed to a functional block diagram of the equipment. Circuit
descriptions shall be keyed to schematic diagrams discussed in paragraph
(i) below. It is recommended that for complex or special circuits,
simplified schematics should be included in this section.
(g) Section V, Maintenance -- The maintenance section shall contain a
list of recommended test equipment, special tools, preventive
maintenance instructions and corrective information. The list of test
equipment shall be that recommended by the manufacturer and shall be
designated by manufacturer and model number. Special tools are those
items not commercially available or those that are designed specifically
for the equipment being supplied. Sufficent data will be provided to
enable their purchase by the Department of Veterans Affairs. Preventive
maintenance instructions shall consist of those recommended by the
manufacturer to preclude unnecessary failures. Procedures and the
recommended frequency of performance shall be included for visual
inspection, cleaning, lubricating, mechanical adjustments and circuit
calibration. Corrective maintenance shall consist of the data necessary
to troubleshoot and rectify a problem and shall include procedures for
realigning and testing the equipment. Troubleshooting shall include
either a list of test points with the applicable voltage levels or
waveforms that would be present under a certain prescribed set of
conditions, a troubleshooting chart listing the symptom, probable cause
and remedy, or a narrative containing sufficient data to enable a test
technician or electronics engineer to determine and locate the probable
cause of malfunction. Data shall also be provided describing the
preferred method of repairing or replacing discrete components mounted
on printed circuit boards or located in areas where special steps must
be followed to disassemble the equipment. Procedures shall be included
to realign and test the equipment at the completion of repairs and to
restore it to its original operating condition. These procedures shall
be supported by the necessary waveforms and voltage levels, and data for
selecting matched components. Diagrams, either photographic or line,
shall show the location of printed circuit board mounted components.
(h) Section VI, Replacement Parts List -- The replacement parts list
shall list, in alphanumeric order, all electrical/electronic, mechanical
and pneumatic components, their description, value and tolerance, true
manufacturer and manufacturers' part number.
(i) Section VII, Drawings -- Wiring and schematic diagrams shall be
included. The drawings will depict the circuitry using standard symbols
and shall include the reference designations and component values or
type designators. Drawings shall be clear and legible and shall not be
engineering or productions sketches.
(c) Solicitations and requests for proposals for mechanical equipment
(other than technical medical equipment and devices) issued by a field
facility will include the following clause:
The contractor agrees to furnish two copies of a manual, handbook or
brochure containing operating, installation, and maintenance
instructions (including pictures or illustrations, schematics, and
complete repair/test guides as necessary). Where applicable, it will
include electrical data and connection diagrams for all utilities. The
instructions shall also contain a complete list of all replaceable parts
showing part number, name, and quantity required.
(d) When the bid or proposal will result in the initial purchase
(including each make and model) of a centrally procured item, the
following clause will be used:
The contractor agrees, when requested by the contracting officer, to
furnish not more than three copies of the technical documentation
required by paragraph 852.210-70(a) to the Service and Reclamation
Division, VA Supply Depot, Hines, Ill. In addition, the contractor
agrees to furnish two additional copies of the technical documentation
required by 852.210-70(a) above with each piece of equipment sold as a
result of the invitation for bid or request for proposal.
(50 FR 795, Jan. 7, 1985; 54 FR 40065, Sept. 29, 1989)
48 CFR 852.210-71 Guarantee clause.
(a) When the bid or proposal will result in any purchase of
equipment, the following clause will be used:
The contractor guarantees the equipment against defective material,
workmanship and performance for a period of ------ ,1 said guarantee to
run from date of acceptance of the equipment by the Government. The
contractor agrees to furnish, without cost to the Government,
replacement of all parts and material which are found to be defective
during the guarantee period. Replacement of material and parts will be
furnished to the Government at the point of installation, if
installation is within the continental United States, or f.o.b. the
continental U.S. port to be designated by the contracting officer if
installation is outside of the continental United States. Cost of
installation of replacement material and parts shall be borne by the
contractor. /2/
(b) Where it is industry policy to furnish, but not install,
replacement material and parts at the contractor's expense, the last
sentence will be changed to indicate that cost of installation shall be
borne by the Government. Where it is industry policy to: (1) Guarantee
components for the life of the equipment (i.e., crystals in transmitters
and receivers in radio communications systems); or (2) require that
highly technical equipment be returned to the factory (at contractor's
or Government's expense) for replacement of defective materials or
parts, the clause used will be compatible with such policy.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 796, Jan. 7,
1985)
/1/ Normally, insert one year. If industry policy covers a shorter
or longer period, i.e., 90 days or for the life of the equipment, insert
such period.
/2/ The above clause will be modified to conform to standards of the
industry involved.
48 CFR 852.210-72 Inspection.
(a) Contracts for property, other than packing house and dairy
products and fresh and frozen fruits and vegetables will contain the
following clause:
Rejected goods will be held subject to contractor's order for not
more than 15 days, after which the rejected merchandise will be returned
to the contractor's address at his/her risk and expense. Expenses
incident to the examination and testing of materials or supplies which
have been rejected will be charged to the contractor's account.
(b) Contracts for packinghouse and dairy products, bread and bakery
products and for fresh and frozen fruits and vegetables will contain the
following clause:
The contractor shall remove rejected supplies within 48 hours after
notice of rejection. Supplies determined to be unfit for human
consumption will not be removed without permission of the local health
authorities. Supplies not removed within the allowed time may be
destroyed. The Department of Veterans Affairs will not be responsible
for nor pay for products rejected. The contractor will be liable for
costs incident to examination of rejected products.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.210-73 Frozen processed foods.
The following clause will be included in all solicitations for the
purchase of frozen processed foods, issued by a field facility:
The products delivered under this contract shall be in excellent
condition, shall not show evidence of defrosting, refreezing, or freezer
burn and shall be transported and delivered to the consignee at a
temperature of 0 degrees Fahrenheit or lower.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 796, Jan. 7,
1985; 54 FR 40065, Sept. 29, 1989)
48 CFR 852.210-74 Telecommunications equipment.
(a) When a detailed purchase description of formal specification is
the basis for solicitations for telecommunications equipment as defined
in VA Manual MP-6, Part VIII, (available at any Department of Veterans
Affairs facility), solicitations, including those for construction, will
include the following provision:
Descriptive literature. The submission of descriptive literature
with offers is not required and voluntarily submitted descriptive
literature which qualifies the offer will require rejection of the
offer.
However, within 5 days after award of contract, the contractor will
submit to the contracting officer literature describing the equipment
he/she intends to furnish and indicating strict compliance with the
specification requirements.
The contracting officer will, by written notice to the contractor
within 20 calendar days after receipt of the literature, approve,
conditionally approve, or disapprove the equipment proposed to be
furnished. The notice of approval or conditional approval will not
relieve the contractor from complying with all requirements of the
specifications and all other terms and conditions of this contract. A
notice of conditional approval will state any further action required of
the contractor. A notice of disapproval will cite reasons therefor.
If the equipment is disapproved by the Government, the contractor
will be subject to action under the Default provision of this contract.
However, prior to default action the contractor will be permitted a
period (at least 10 days) under that clause to submit additional
descriptive literature on equipment originally offered or descriptive
literature on other equipment.
The Government reserves the right to require an equitable adjustment
of the contract price for any extension of the delivery schedule
necessitated by additional descriptive literature evaluations.
(b) The descriptive literature to be furnished by the contractor
after award in accordance with paragraph (a) of this section is subject
to the controls established in 870.112(b).
(c) The time of delivery or performance to be specified in the
solicitation will include the time required for submission, receipt, the
evaluation and approval required by 870.112(b) of this chapter, and
return to the contractor of the descriptive literature.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 796, Jan. 7,
1985)
48 CFR 852.210-75 Technical industry standards.
When items are required to conform to technical industry standards,
such as those adopted by Underwriter's Laboratories, Incorporated;
Factory Mutual Laboratories; American Gas Association; American
Society Mechanical Engineers; National Electrical Manufacturers'
Association; American Society Heating, Refrigeration and Air
Conditioning Engineers; or similar organizations where such standards
are generally recognized and accepted in the industry involved, the
invitation for bids, request for proposals or request for quotations
will so state. In no instance, where there is a multiple choice of
laboratories, shall the invitation for bid, request for proposal or
request for quotation indicate that the label or certificate of only one
such laboratory is acceptable. The following provision will be used
unless comparable provisions are contained in the item specification:
The supplies or equipment required by this invitation for bid or
request for proposal must conform to the standards of the ------ /3/ and
------ /3/ as to ------ . /4/ The successful bidder or offeror will be
required to submit proof that the item(s) he furnishes conforms to this
requirement. This proof may be in the form of a label or seal affixed
to the equipment or supplies, warranting that they have been tested in
accordance with and conform to the specified standards. The seal or
label of any nationally recognized laboratory such as those listed by
the National Fire Protection Association, Boston, Massachusetts, in the
current edition of their publication ''Research on Fire,'' is
acceptable. Proof may also be furnished in the form of a certificate
from one of these laboratories certifying that the item(s) furnished
have been tested in accordance with and conform to the specified
standards.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 796, Jan. 7,
1985)
/3/ Insert name(s) of organization(s), the standards of which are
pertinent to the Government's needs.
/4/ Insert pertinent standards, i.e. fire and casualty, safety and
fire protection, etc.
48 CFR 852.210-76 Noncompliance with packaging, packing, and/or marking
requirements.
The following clause will be included in contracts for supplies for
delivery to supply distribution warehouses or depots for storage and
subsequent issue to a using activity. It may also be included when
appropriate when delivery is direct to a using activity.
Failure to comply with the packaging, packing, and/or marking
requirements indicated herein, or incorporated herein by reference, may
result in rejection of the merchandise and request for replacement or
repackaging, repacking, and/or marking. The Government reserves the
right, without obtaining authority from the contractor, to perform the
required repackaging, repacking, and/or marking services and charge the
contractor at the actual cost to the Government for the same or have the
required repackaging, repacking, and/or marking services performed
commercially under Government order charge the contractor at the invoice
rate. In connection with any discount offered, time will be computed
from the date of completion of such repackaging, repacking, and/or
marking services.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985;
54 FR 30045, July 18, 1989)
48 CFR 852.210-77 Brand name or equal.
The brand name or equal clause when used as prescribed by 810.004
will be as follows:
(Note: As used in this clause, the term ''brand name'' includes
identification of products by make and model.)
(a) If items called for by this invitation for bids have been
identified in the schedule by a ''brand name or equal'' description,
such identification is intended to be descriptive, but not restrictive,
and is to indicate the quality and characteristics of products that will
be satisfactory. Bids offering ''equal'' products (including products
of the brand name manufacturer other than the one described by brand
name) will be considered for award if such products are clearly
identified in the bids and are determined by the Government to meet
fully the salient characteristics requirements listed in the invitation.
(b) Unless the bidder clearly indicates in his bid that he is
offering an ''equal'' product, his bid shall be considered as offering a
brand name product referenced in the invitation for bids.
(c)(1) If the bidder proposes to furnish an ''equal'' product, the
brand name, if any, of the product to be furnished shall be inserted in
the space provided in the Invitation for Bids, or such product shall be
otherwise clearly identified in the bid. The evaluation of bids and the
determination as to equality of the product offered shall be the
responsibility of the Government and will be based on information
furnished by the bidder or identified in his/her bid as well as other
information reasonably available to the purchasing activity. CAUTION TO
BIDDERS. The purchasing activity is not responsible for locating or
securing any information which is not identified in the bid and
reasonably available to the purchasing activity. Accordingly, to insure
that sufficient information is available, the bidder must furnish as a
part of his/her bid all descriptive material (such as cuts,
illustration, drawings or other information) necessary for the
purchasing activity to: (i) Determine whether the product offered meets
the salient characteristics requirement of the Invitation for Bids, and
(ii) establish exactly what the bidder proposes to furnish and what the
Government would be binding itself to purchase by making an award. The
information furnished may include specific references to information
previously furnished or to information otherwise available to the
purchasing activity.
(2) If the bidder proposes to modify a product so as to make it
conform to the requirements of the Invitation for Bids, he/she shall:
(i) Include in his/her bid a clear description of such proposed
modifications, and (ii) clearly mark any descriptive material to show
the proposed modifications.
(3) Modifications proposed after bid opening to make a product
conform to a brand name product referenced in the Invitation for Bids
will not be considered.
(50 FR 796, Jan. 7, 1985, as amended at 53 FR 7756, Mar. 10, 1988)
48 CFR 852.212-70 Liquidated damages.
As prescribed in 812.204 and 836.206, the contracting officer may
insert the following clause when appropriate:
If any unit of the work contracted for is accepted in advance of the
whole, the rate of liquidated damages assessed will be in the ratio that
the value of the unaccepted work bears to the total amount of the
contract. If a separate price for unaccepted work has not been stated
in the contractor's bid, determination of the value thereof will be made
from schedules of costs furnished by the contractor and approved by the
contracting officer, as specified elsewhere in the contract.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.214-70 Caution to bidders -- bid envelopes.
As provided in 814.201, the following provision will be prominently
placed on all IFB's:
It is the responsibility of each bidder to take all necessary
precautions, including the use of a proper mailing cover, to insure that
the bid price cannot be ascertained by anyone prior to bid opening. If
a bid envelope is furnished with this invitation, the bidder is
requested to use this envelope in submitting the bid. The bidder may,
however, when it suits a purpose, use any suitable envelope, identified
by the invitation number and bid opening time and date. If a bid
envelope is not furnished, the bidder will complete and affix the
enclosed Optional Form 17, Sealed Bid Label, to the lower left-hand
corner of the envelope used in submitting the bid.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.214-71 Alternate items.
As prescribed in 814.201, consideration of alternate items may be
appropriate. The following provisions may be used under the specified
conditions:
(a) When an alternate item is to be considered only if no bids or
insufficient bids are received on the item desired, the following will
be included in the invitation:
Bids on ------ 5 will be considered only if acceptable bids on ------
6 are not received or do not satisfy the total requirement.
(b) When an alternate item will be considered on an equal basis with
the item specified, the following will be included in the invitation:
Bids ------ 5 will be given equal consideration along with the ------
6 and any such bids received may be accepted if to the advantage of the
Government. Tie bids will be decided in favor of. 6
(c) In addition to the clause in paragraph (a) or (b) of this
section, the following provision will be included in the invitation when
bids will be allowed on different packaging, unit designation, etc.
The bidder's offer must clearly indicate the quantity, package size,
unit, or other different feature upon which the quote is made.
Evaluation of the alternate or multiple alternates will be made on a
common denominator such as per ounce, per pound, etc., basis.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 796, Jan. 7,
1985)
5Contracting officer will insert an alternate item that is considered
acceptable.
6Contracting officer will insert the required item and item number.
48 CFR 852.214-73 Bid samples.
As provided by and under the circumstances of 814.202-4, the
following provision will be inserted in the IFB.
All samples furnished must be plainly marked with the complete
lettering and numbering of the item or subitems to which it relates, the
name of the commodity, the Invitation for Bids number, and the name of
the bidder. Cases or packages containing samples must be plainly marked
''Samples'' and all charges incident to the preparation and
transportation of samples must be prepaid by the bidder. Bids must not
be enclosed with samples.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 796, Jan. 7,
1985)
48 CFR 852.216-70 Estimated quantities for requirements contracts.
(a) When definite quantities cannot be determined, solicitations for
facility-level requirements contracts will contain the applicable clause
as set forth below. Solicitations issued by the Marketing Center will
contain provisions developed by that Center for particular application
to its operations, subject to legal review as prescribed in
801.602-70(c)(1).
(b) The following clause will be used for general equipment, supplies
and services:
As it is impossible to determine the exact quantities that will be
required during the contract term, each bidder whose bid is accepted
wholly or in part will be required to deliver all articles or services
that may be ordered during the contract term, except as he/she otherwise
indicates in his/her bid and except as otherwise provided herein. Bids
will be considered if made with the proviso that the total quantities
delivered shall not exceed a certain specified quantity. Bids offering
less than 75 percent of the estimated requirement or which provide that
the Government shall guarantee any definite quantity, will not be
considered. The fact that quantities are estimated shall not relieve
the contractor from filling all orders placed under this contract to the
extent of his/her obligation. Also, the Department of Veterans Affairs
shall not be relieved of its obligation to order from the contractor all
articles or services that may, in the judgment of the ordering officer,
be needed except that in the public exigency procurement may be made
without regard to this contract.
(c) The following clause will be used in local coal-hauling
contracts.
The estimated requirements shown in this invitation for bids cover
the requirements for the entire contract period. It is understood and
agreed that during the period of this contract the Government may order
and the contractor will haul such coal as may, in the opinion of the
Government, be required, except that in the public exigency procurement
may be made without regard to this contract.
(d) The following clause will be used for orthopedic, prosthetic, and
optical supplies.
The supplies and/or services listed in the attached schedule will be
furnished at such time and in such quantities as they are required.
(e) The following clause will be used for National Cemetery System
contracts for monuments:
As it is impossible to determine the exact quantities that will be
required during the contract term, each bidder whose bid is accepted
wholly or in part will be required to deliver all articles that may be
ordered during the contract term, except as he or she otherwise
indicates in his or her bid and except as otherwise provided herein.
Bids will be considered if made with the proviso that the total
quantities delivered shall not exceed a certain specified quantity. The
fact that quantities are estimated shall not relieve the contractor from
filling all orders placed under this contract to the extent of his or
her obligation. Also, the Department of Veterans Affairs shall not be
relieved of its obligation to order from the contractor all articles
that may, in the judgment of the ordering officer, be needed except that
in the public exigency procurement may be made without regard to this
contract.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 796, Jan. 7,
1985; 54 FR 30045, July 18, 1989)
48 CFR 852.219-70 Veteran-owned small business.
As prescribed in 819.7003(a), the following certification will be
made a part of all solicitations and all requests for quotations:
The offeror represents that the firm submitting this offer ( ) is ( )
is not, a veteran-owned small business, ( ) is ( ) is not, a Vietnam era
veteran-owned small business, and ( ) is ( ) is not, a disabled
veteran-owned small business. A veteran-owned small business is defined
as a small business, at least 51 percent of which is owned by a veteran
who also controls and operates the business. Control in this context
means exercising the power to make policy decisions. Operate in this
context means actively involved in day-to-day management. For the
purpose of this definition, eligible veterans include:
(a) A person who served in the U.S. Armed Forces and who was
discharged or released under conditions other than dishonorable.
(b) Vietnam era veterans who served for a period of more than 180
days, any part of which was between August 5, 1964, and May 7, 1975, and
were discharged under conditions other than dishonorable.
(c) Disabled veterans with a minimum compensable disability of 30
percent, or a veteran who was discharged for disability.
Failure to execute this representation will be deemed a minor
informality and the bidder or offeror shall be permitted to satisfy the
requirement prior to award (see FAR 14.405).
(End of Provision)
(50 FR 796, Jan. 7, 1985; 54 FR 40065, Sept. 29, 1989, as amended at
55 FR 49901, Dec. 3, 1990)
48 CFR 852.222-70 Contract Work Hours and Safety Standards Act --
nursing home care contract supplement.
As prescribed in 822.304, nursing home care contracts will include
the following clause.
In the performance of any contract entered into pursuant to the
provisions of 38 U.S.C. 620 to provide nursing home care of veterans, no
contractor or subcontractor under such contract shall be deemed in
violation of Section 102 of the Contract Work Hours and Safety Standards
Act by virtue of failure to pay the overtime wages required by such
section for work in excess of 8 hours in any calendar day or 40 hours in
the workweek to any individual employed by establishment which is an
institution primarily engaged in the care of the sick, the aged, or the
mentally ill or defective who reside on the premises if, pursuant to an
agreement or understanding arrived at between the employer and the
employee before performance of the work, a work period of 14 consecutive
days is accepted in lieu of the workweek of 7 consecutive days for the
purpose of overtime compensation and if such individual receives
compensation for employment in excess of 8 hours in any workday and in
excess of 80 hours in such 14-day period at a rate not less than 1 1/2
times the regular rate at which the individual is employed, computed in
accordance with the requirements of the Fair Labor Standards Act of
1938, as amended.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.228-70 Bond premium adjustment.
The following clause will be utilized as prescribed by 828.7000.
When net changes in original contract price affect the premium of a
Corporate Surety Bond by $5 or more, the Government in determining basis
for final settlement, will provide for bond premium adjustment computed
at the rate shown in the bond.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.229-70 Purchases from patient's funds.
When contracts are for items to be purchased solely from personal
funds of patients, the following tax provision will be used in lieu of
the Federal, State and local tax clause in FAR 52.229-1.
The articles listed in this bid invitation will be purchased from
personal funds of patients and prices bid herein include any sales or
use tax heretofore imposed by any State, or by any duly constituted
taxing authority therein, having jurisdiction to levy such a tax,
applicable to the material in this bid.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 796, Jan.7,
1985
48 CFR 852.229-71 Purchases for patients using Government funds and/or
personal funds of patients.
When contracts are for items to be purchased from both Government
funds and personal funds of patients, the following provision will be
included as a part of the Federal, State, and local tax clause in FAR
52.229-1:
Any article purchased from this contract, payable from personal funds
of patients, will be subject to any applicable sales or use tax levied
thereon by any State, or by duly constituted taxing authority therein
having jurisdiction to levy such a tax; the total amount of the tax
applicable to such purchase payable from personal funds of patients will
be computed on the total amount of the order and will be shown as a
separate item on the purchase order and invoice. The bidder shall
identify the applicable taxes and rates in his/her bid.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 796, Jan. 7,
1985)
48 CFR 852.233-2 Service of protest.
As prescribed in 833.106, insert the following provisions in
solicitations for other than small purchases:
A copy of any protest, as defined in FAR 33.101, that is filed with
the General Accounting Office (GAO) or the General Services
Administration Board of Contract Appeals (GSBCA), shall be served on the
contracting officer ------ * and the ------ **. The copy of any such
protest must be received in the offices designated above on the same day
a protest is filed with the GSBCA, or within 1 day of filing a protest
with the GAO.
*Insert the address of contracting office or refer to the number of
the block on the standard Form 33 or 1442, etc., where the address of
the contracting office is identified.
**For all contracts, except those awarded by the Office of
Facilities, insert the Deputy Assistant Secretary for Acquisition and
Materiel Management (93B), Department of Veterans Affairs, 810 Vermont
Avenue, NW., Washington, DC 20420.
(51 FR 23072, June 25, 1986 and 52 FR 28559, July 31, 1987, as
amended at 52 FR 28561, July 31, 1987; 54 FR 30044, July 18, 1989; 54
FR 40065, Sept. 29, 1989)
48 CFR 852.233-70 Protest content.
As prescribed in 833.106, insert the following provision in
solicitations for other than small purchases:
(a) Any protest filed by an interested party shall:
(1) Include the name, address, and telephone number of the protester;
(2) Identify the solicitation and/or contract number;
(3) Include an original signed by the protester or his/her
representative, and at least one copy;
(4) Set forth a detailed statement of the legal and factual ground of
the protest including copies of relevant documents;
(5) Specifically request a ruling of the individual upon whom the
protest is served; and
(6) State the form of relief requested.
(b) Failure to comply with the above may result in dismissal of the
protest without further consideration.
(52 FR 28561, July 31, 1987, as amended at 52 FR 49017, Dec. 29,
1987)
48 CFR 852.236-70 Clauses and provisions for fixed-price construction
contracts.
(a) The clauses and provisions prescribed in this section are set
forth for use in fixed-price construction contracts in addition to those
in FAR Subpart 52.2.
(b) Additional clauses and provisions not inconsistent with those in
FAR Subparts 36.5 and 52.2 and those prescribed in this subpart are
authorized when determined necessary or desirable by the contracting
officer, and when approved as provided in Subpart 801.4.
(c) Clauses and provisions inconsistent with those contained in FAR
Subpart 36.5 and 52.2 and this subpart, but considered essential to the
procurement of Department of Veterans Affairs requirements, shall not be
used unless the deviation procedure set forth in Subpart 801.4 has been
complied with.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 796, Jan. 7, 1985)
48 CFR 852.236-71 Specifications and drawings for construction.
The clause entitled ''Specifications and Drawings for Construction,''
in FAR 52.236-21 is supplemented as follows:
(a) The contracting officer's interpretation of the drawings and
specifications will be final, subject to the disputes clause.
(b) Large scale drawings supersede small scale drawings.
(c) Dimensions govern in all cases. Scaling of drawings may be done
only for general location and general size of items.
(d) Dimensions shown of existing work and all dimensions required for
work that is to connect with existing work, shall be verified by the
contractor by actual measurement of the existing work. Any work at
variance with that specified or shown in the drawings shall not be
performed by the contractor until approved in writing by the contracting
officer.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.236-72 Performance of work by the contractor.
The clause entitled ''Performance of Work by the Contractor,'' in FAR
52.236-1, is supplemented as follows:
(a) Contract work accomplished on the site by laborers, mechanics,
and foremen/forewomen on the contractor's payroll and under his/her
direct supervision shall be included in establishing the percent of work
to be performed by the contractor. Cost of material and equipment
installed by such labor may be included. The work by contractor's
executive, supervisory and clerical forces shall be excluded in
establishing compliance with the requirements of ths clause.
(b) The contractor shall submit, simultaneously with schedule of
costs required by Payments under Fixed-Price Construction Contract
provision of the General Conditions of these specifications, a statement
designating the branch or branches of contract work to be performed with
his/her forces. The approved schedule of costs will be used in
determining value of a branch or branches, or portions therof, of the
work for the purpose of this article.
(c) If, during the progress of work hereunder, the contractor
requests a change in the branch or branches of the work to be performed
by his/her forces and the contracting officer determines it to be in the
best interests of the Government, the contracting officer may, at
his/her discretion, authorize a change in such branch or branches of
said work. Nothing contained herein shall permit a reduction in the
percentage of work to be performed by the contractor with his/her
forces, it being expressly understood that this is a contract
requirement without right or privilege of reduction.
(d) In the event the contractor fails or refuses to meet the
requirement of paragraph (a) of this clause, it is expressly agreed that
the contract price will be reduced by 15 percent of the value of that
portion of the percentage requirement which is accomplished by others.
For the purposes of this clause, it is agreed that 15 percent is an
acceptable estimate of the contractor's overhead and profit, or mark-up,
on that portion of the work which the contractor fails or refuses to
perform, with his/her own forces, in accordance with paragraph (a) of
this clause.
For requirements which include Network Analysis System (NAS),
substitute the following paragraphs (b) and (c) for paragraphs (b) and
(c) of the basic clause:
(b) The contractor shall submit, simultaneously with the cost per
activity of the construction schedule required by Section 01311, NETWORK
ANALYSIS SYSTEM, a responsibility code for all activities of the network
for which the contractor's forces will perform the work. The cost of
these activities will be used in determining the portions of the total
contract work to be executed by the contractor's forces for the purpose
of this article.
(c) If, during progress of work hereunder, the contractor requests a
change in activities of work to be performed by contractor's forces and
the contracting officer determines it to be in the best interest of the
Government, the contracting officer may, at contracting officers'
discretion, authorize a change in such activities of said work.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 796, Jan. 7,
1985; 53 FR 1631, Jan. 21, 1988; 53 FR 2669, Jan. 29, 1988)
48 CFR 852.236-73 Bonds.
For contracts in excess of $25,000, the contractor must furnish a
Performance Bond (Standard Form 25) for 100 percent of the amount of the
contract, and a Payment Bond (Standard Form 25-A) in the penal sums set
forth below:
When net changes in original contract price affect the premium of a
Corporate Surety Bond by $5 or more, the Government in determining basis
for final settlement, will provide for bond premium adjustment computed
at the rate shown in the bond.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 797, Jan. 7,
1985)
48 CFR 852.236-74 Inspection of construction.
The clause entitled, ''Inspection of Construction,'' in FAR
52.246-12, is supplemented as follows:
(a) Inspection of materials and articles furnished under this
contract will be made at the site by the resident engineer, unless
otherwise provided for in the specifications.
(b) Final inspection will not be made until the contract work is
ready for beneficial use or occupancy. The contractor shall notify the
contracting officer, through the resident engineer, fifteen (15) days
prior to the date on which the work will be ready for final inspection.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.236-75 Guaranty.
(a) Unless otherwise specifically provided for in the contract or
specifications, the contractor, notwithstanding any final inspection,
acceptance or payment, guarantees that all work performed and materials
and equipment furnished under this contract are in accordance with the
contract requirements. The contractor also guarantees that when
installed all materials and equipment will be free from defects and will
remain so for a period of at least one year from the date of acceptance
by the Government.
(b) If defects of any kind should develop during the period such
guarantees are in force, the contracting officer shall immediately
notify the contractor in writing of such defects. The Government
thereupon shall have the right, by a written notice to that effect, to
require the contractor to repair or replace all inferior or defective
work, material, or equipment or permit it to remain in place and assess
the contractor the costs he/she (the contractor) would have incurred had
he/she been required to effect repair or replacement.
(c) Any correction or replacement of parts, materials, equipment,
supplies or construction made pursuant to the provisions of this clause
shall also be subject to the provisions of this clause to the same
extent as parts, materials, equipment, supplies or construction
originally installed. The warranty with respect to such new or
corrected parts, materials, equipment, supplies or construction shall be
equal in duration as that set forth in (a) above and shall run from the
date that such parts, materials, equipment, supplies or construction are
replaced or corrected and accepted by the Government.
(d) The contractor guarantees to reimburse the Government for, or to
repair or replace, any damages to the site, buildings, or contents
thereof that are caused by inferior or defective workmanship, or the use
of inferior or defective materials or equipment in the performance of
this contract. The contracting officer shall immediately notify the
contractor in writing when such damage occurs. The Government shall
have the right to require the contractor to repair or replace such
damaged areas or equipment, or elect to permit such damage to remain as
is and assess the contractor the costs he/she would have incurred had
he/she been required to effect repair or replacement.
(e) Should the contractor fail to proceed promptly, after
notification by the contracting officer, to repair or replace any
inferior or defective work, material, or equipment, or damage to the
site, buildings, or contents, thereof, caused by inferior or defective
work, or the use of inferior or defective materials, or equipment, the
Government may have such work, material, equipment or damage repaired or
replaced and charge all costs incident thereto to the contractor.
(f) Any special guaranties that may be required under the contract,
shall be subject to the elections set forth above unless otherwise
provided in such special guaranties.
(g) The decision of the contracting officer as to liability of the
contractor under this clause is subject to the appeal procedures
provided for in the disputes clause of this contract.
If the specifications include guarantee period services, add the
following paragraph (g) and redesignate paragraph (g) in the basic text
as paragraph (h).
(g) Should the contractor fail to prosecute the work or fail to
proceed promptly to provide guarantee period services after notification
by the contracting officer, the Government may, subject to the default
clause contained at FAR section 52.249-10, Default (Fixed-Price
Construction), and after allowing the contractor 10 days to correct and
comply with the contract, terminate the right to proceed with the work
(or the separable part of the work) that has been delayed or
unsatisfactorily performed. In this event, the Government may take over
the work and complete it by contract or otherwise, and may take
possession of and use any materials, appliance, and plant on the work
site necessary for completing the work. The contractor and its sureties
shall be liable for any damages to the Government resulting from the
contractor's refusal or failure to complete the work within this
specified time, whether or not the contractor's right to proceed with
the work is terminated. This liability includes any increased costs
incurred by the Government in completing the work.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985;
53 FR 1631, Jan. 21, 1988; 53 FR 2669, Jan. 29, 1988)
48 CFR 852.236-76 Correspondence.
All correspondence relative to this contract shall bear Specification
Number, Project Number, Department of Veterans Affairs Contract Number,
title of project and name of facility.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985;
54 FR 40066, Sept. 29, 1989)
48 CFR 852.236-77 Reference to ''standards.''
Any materials, equipment, or workmanship specified by references to
number, symbol, or title of any specific Federal, Industry or Government
Agency Standard Specification shall comply with all applicable
provisions of such standard specifications, except as limited to type,
class or grade, or modified in contract specifications. Reference to
''Standards'' referred to in the contract specifications, except as
modified, shall have full force and effect as though printed in detail
in specifications.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 797, Jan. 7,
1985)
48 CFR 852.236-78 Government supervision.
(a) The work will be under the direction of the Department of
Veterans Affairs contracting officer, who may designate another VA
employee to act as resident engineer at the construction site.
(b) Except as provided below, the resident engineer's directions will
not conflict with or change contract requirements.
(c) Within the limits of any specific authority delegated by the
contracting officer, the resident engineer may by written direction make
changes in the work. The contractor shall be advised of the extent of
such authority prior to execution of any work under the contract.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.236-79 Daily report of workers and materials.
The contractor shall furnish to the resident engineer each day a
consolidated report for the preceding work day in which is shown the
number of laborers, mechanics, foremen/forewomen and pieces of heavy
equipment used or employed by the contractor and subcontractors. The
report shall bear the name of the firm, the branch of work which they
perform such as concrete, plastering, masonry, plumbing, sheet metal
work, etc. The report shall give a breakdown of employees by crafts,
location where employed, and work performed. The report shall also list
materials delivered to the site on the date covered by the report.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.236-80 Subcontracts and work coordination.
The following clause is for use except as provided in 852.236-81:
(a) Nothing contained in this contract shall be construed as creating
any contractual relationship between any subcontractor and the
Government. Divisions or sections of specifications are not intended to
control the contractor in dividing work among subcontractors, or to
limit work performed by any trade.
(b) The contractor shall be responsible to the Government for acts
and omissions of his/her own employees, and of the subcontractors and
their employees. The contractor shall also be responsible for
coordination of the work of the trades, subcontractors, and material
suppliers.
(c) The Government or its representatives will not undertake to
settle any differences between the contractor and subcontractors or
between subcontractors.
(d) The Government reserves the right to refuse to permit employment
on the work or require dismissal from the work of any subcontractor who,
by reason of previous unsatisfactory work on Department of Veterans
Affairs projects or for any other reason, is considered by the
contracting officer to be incompetent or otherwise objectionable.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.236-81 Work coordination (alternate provision).
For new construction work with complex mechanical-electrical work,
the following clause relating to work coordination may be substituted
for paragraph (b) of the clause set forth in 852.236-80:
The contractor shall be responsible to the Government for acts and
omissions of his/her own employees, and subcontractors and their
employees. The contractor shall also be responsible for coordination of
the work of the trades, subcontractors, and material suppliers. The
contractor shall, in advance of the work, prepare coordination drawings
showing the location of openings through slabs, the pipe sleeves and
hanger inserts, as well as the location and elevation of utility lines,
including, but not limited to, conveyor systems, pneumatic tubes, ducts,
and conduits and pipes 2 inches and larger in diameter. These drawings,
including plans, elevations, and sections as appropriate shall clearly
show the manner in which the utilities fit into the available space and
relate to each other and to existing building elements. Drawings shall
be of appropriate scale to satisfy the previously stated purposes, but
not smaller than 3/8-inch scale. Drawings may be composite (with
distinctive colors for the various trades) or may be separate but fully
coordinated drawings (such as sepias or photographic paper
reproducibles) of the same scale. Separate drawings shall depict
identical building areas or sections and shall be capable of being
overlaid in any combination. The submitted drawings for a given area of
the project shall show the work of all trades which will be involved in
that particular area. Six complete composite drawings or six complete
sets of separate reproducible drawings shall be received by the
Government not less than 20 days prior to the scheduled start of the
work in the area illustrated by the drawings, for the purpose of showing
the contractor's planned methods of installation. The objectives of
such drawings are to promote carefully planned work sequence and proper
trade coordination, in order to assure the expeditious solutions of
problems and the installation of lines and equipment as contemplated by
the contract documents while avoiding or minimizing additional costs to
the contractor and to the Government. In the event the contractor, in
coordinating the various installations and in planning the method of
installation, finds a conflict in location or elevation of any of the
utilities with themselves, with structural items or with other
construction items, he/she shall bring this conflict to the attention of
the contracting officer immediately. In doing so, the contractor shall
explain the proposed method of solving the problem or shall request
instructions as to how to proceed if adjustments beyond those of usual
trades coordination are necessary. Utilities installation work will not
proceed in any area prior to the submission and completion of the
Government review of the coordinated drawings for that area, nor in any
area in which conflicts are disclosed by the coordination drawings until
the conflicts have been corrected to the satisfaction of the contracting
officer. It is the responsibility of the contractor to submit the
required drawings in a timely manner consistent with the requirements to
complete the work covered by this contract within the prescribed
contract time.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 797, Jan. 7,
1985; 53 FR 1632, Jan. 21, 1988)
48 CFR 852.236-82 Payments under fixed-price construction contracts
(without NAS).
For contracts that do not contain a section entitled ''Network
Analysis System (NAS),'' the clause entitled ''Payments under
Fixed-Price Construction Contracts'' in FAR 52.232-5 will be
supplemented as follows:
The clause entitled ''Payments Under Fixed-Price Construction
Contracts'' in FAR 52.232-5 is implemented as follows:
(a) Retainage:
(1) The contracting officer may retain funds:
(i) Where performance under the contract has been determined to be
deficient or the contractor has performed in an unsatisfactory manner in
the past; or
(ii) As the contract nears completion, to ensure that deficiencies
will be corrected and that completion is timely.
(2) Examples of deficient performance justifying a retention of funds
include, but are not restricted to, the following:
(i) Unsatisfactory progress as determined by the contracting officer;
(ii) Failure to meet schedule in Schedule of Work Progress;
(iii) Failure to present submittals in a timely manner; or
(iv) Failure to comply in good faith with approved subcontracting
plans, certifications or contract requirements.
(3) Any level of retention shall not exceed 10 percent either where
there is determined to be unsatisfactory performance, or when the
retainage is to ensure satisfactory completion. Retained amounts shall
be paid promptly upon completion of all contract requirements, but
nothing contained in this subparagraph shall be construed as limiting
the contracting officer's right to withhold funds under other provisions
of the contract or in accordance with the general law and regulations
regarding the administration of Government contracts.
(b) The contractor shall submit a schedule of cost to the contracting
officer for approval within 30 calendar days after date of receipt of
notice to proceed. Such schedule will be signed and submitted in
triplicate. The approved cost schedule will be one of the bases for
determining progress payments to the contractor for work completed.
This schedule shall show cost by the branches of work for each building
or unit of the contract, as instructed by the resident engineer.
(1) The branches shall be subdivided into as many subbranches as are
necessary to cover all component parts of the contract work.
(2) Costs as shown on this schedule must be true costs and, should
the resident engineer so desire he/she may require the contractor to
submit the original estimate sheets or other information to substantiate
detailed makeup of schedule.
(3) The sum of subbranches, as applied to each branch, shall equal
the total cost of such branch. The total costs of all branches shall
equal the contract price.
(4) Insurance and similar items shall be prorated and included in the
cost of each branch of the work.
(5) The cost schedule shall include separate cost information for the
systems listed below. The percentages listed below are proportions of
the cost listed in contractor's cost schedule and identify, for payment
purposes, the value of the work to adjust, correct and test systems
after the material has been installed. Payment of the listed
percentages will be made only after the contractor has demonstrated that
each of the systems is substantially complete and operates as required
by the contract.
(c) In addition to this cost schedule, the contractor shall submit
such unit costs as may be specifically requested. The unit costs shall
be those used by the contractor in preparing his/her bid and will not be
binding as pertaining to any contract changes.
(d) The contracting officer will consider for monthly progress
payments material and/or equipment procured by the contractor and stored
on the construction site as space is available, or at a local approved
location off the site, under such terms and conditions as such officer
approves, including but not limited to the following:
(1) The material or equipment is in accordance with the contract
requirements and/or approved samples and shop drawings.
(2) Only those materials and/or equipment as are approved by the
resident engineer for storage will be included.
(3) Such materials and/or equipment will be stored separately and
will be readily available for inspection and inventory by the resident
engineer.
(4) Such materials and/or equipment will be protected against
weather, theft and other hazards and will not be subjected to
deterioration.
(5) All of the other terms, provisions, conditions and covenants
contained in the contract shall be and remain in full force and effect
as therein provided.
(6) A supplemental agreement will be executed between the Government
and the contractor with the consent of the contractor's surety for
off-site storage.
(e) The contractor, prior to receiving a progress or final payment
under this contract, shall submit to the contracting officer a
certification that the contractor has made payment from proceeds of
prior payments, or that timely payment will be made from the proceeds of
the progress or final payment then due, to subcontractors and suppliers
in accordance with the contractual arrangements with them.
(f) The Government reserves the right to withhold payment until
samples, shop drawings, engineer's certificates, additional bonds,
payrolls, weekly statements of compliance, proof of title,
nondiscrimination compliance reports, or any other things required by
this contract, have been submitted to the satisfaction of the
contracting officer.
If the specifications include guarantee period services, include the
following paragraphs (6) (i) and (ii) as an addition to the basic clause
in paragraph (b):
(6)(i) The contractor shall at the time of contract award furnish the
total cost of the guarantee period services in accordance with
specification section(s) covering guarantee period services. The
contractor shall submit, within 15 calendar days of notice to proceed,
the guarantee period performance program which shall include an itemized
accounting of the number of workhours required to perform the guarantee
period service on each piece of equipment. The contractor shall also
submit the estimated costs including employee fringe benefits and what
the contractor reasonably expects to pay over the guarantee period
service, all of which will be subject to the contracting officer's
approval.
(ii) The cost of the guarantee service shall be prorated on an annual
basis and paid in equal monthly payments by VA during the period of
guarantee. In the event the installer does not perform satisfactorily
during this period, all payments may be withheld, and the contracting
officer shall inform the contractor of the unsatisfactory performance,
allowing the contractor 10 days to correct deficiencies and comply with
the contract. The guarantee period service is subject to those
provisions as set forth in the Payment and Default clauses.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 797, Jan. 7,
1985; 53 FR 1632, Jan. 21, 1988; 54 FR 40066, Sept. 29, 1989)
48 CFR 852.236-83 Payments under fixed-price construction contracts
(including NAS).
For contracts that contain a section entitled ''Network Analysis
System (NAS),'' the clause entitled ''Payments under Fixed-Price
Construction Contracts'' in FAR 52.232-5 is supplemented as follows:
The clause entitled ''Payments under Fixed-Price Construction
Contracts in FAR 52.232-5 is implemented as follows:
(a) Retainage:
(1) The contracting officer may retain funds:
(i) Where performance under the contract has been determined to be
deficient or the contractor has performed in an unsatisfactory manner in
the past; or
(ii) As the contract nears completion, to ensure that deficiencies
will be corrected and that completion is timely.
(2) Examples of deficient performance justifying a retention of funds
include, but are not restricted to, the following:
(i) Unsatisfactory progress as determined by the contracting officer;
(ii) Failure either to meet schedules in Section Network Analysis
System (NAS), or to process the Interim Arrow Diagram/Complete Project
Arrow Diagram;
(iii) Failure to present submittals in a timely manner; or
(iv) Failure to comply in good faith with approved subcontracting
plans, certifications or contract requirements.
(3) Any level of retention shall not exceed 10 percent either where
there is determined to be unsatisfactory performance, or when the
retainage is to ensure satisfactory completion. Retained amounts shall
be paid promptly upon completion of all contract requirements, but
nothing contained in this subparagraph shall be construed as limiting
the contracting officer's right to withhold funds under other provisions
of the contract or in accordance with the general law and regulations
regarding the administration of Government contracts.
(b) The contractor shall submit a schedule of costs in accordance
with the requirements of Section Network Analysis System (NAS) to the
contracting officer for approval within 90 calendar days after date of
receipt of notice to proceed. The approved cost schedule will be one of
the bases for determining progress payments to the contractor for work
completed.
(1) Costs as shown on this schedule must be true costs and, should
the resident engineer so desire, he/she may require the contractor to
submit his/her original estimate sheets or other information to
substantiate the detailed makeup of the cost schedule.
(2) The total costs of all activities shall equal the contract price.
(3) Insurance and similar items shall be prorated and included in
each activity cost of the critical path method (CPM) network.
(4) The CPM network shall include a separate cost loaded activity for
adjusting and testing of the systems listed below. The percentages
listed below will be used to determine the cost of adjust and test
activities and identify, for payment purposes, the value of the work to
adjust, correct and test systems after the material has been installed.
(5) Payment for adjust and test activities will be made only after
the contractor has demonstrated that each of the systems is
substantially complete and operates as required by the contract.
(c) In addition to this cost schedule, the contractor shall submit
such unit costs as may be specifically requested. The unit costs shall
be those used by the contractor in preparing the bid and will not be
binding as pertaining to any contract changes.
(d) The contracting officer will consider for monthly progress
payments material and/or equipment procured by the contractor and stored
on the construction site as space is available, or at a local approved
location off the site, under such terms and conditions as such officer
approves, including but not limited to the following:
(1) The material or equipment is in accordance with the contract
requirements and/or approved samples and shop drawings.
(2) Only those materials and/or equipment as are approved by the
resident engineer for storage will be included.
(3) Such materials and/or equipment will be stored separately and
will be readily available for inspection and inventory by the resident
engineer.
(4) Such materials and/or equipment will be protected against
weather, theft and other hazards and will not be subjected to
deterioration.
(5) All of the other terms, provisions, conditions and covenants
contained in the contract shall be and remain in full force and effect
as therein provided.
(6) A supplemental agreement will be executed between the Government
and the contractor with the consent of the contractor's surety for
off-site storage.
(e) The contractor, prior to receiving a progress or final payment
under this contract, shall submit to the contracting officer a
certification that the contractor has made payment from proceeds of
prior payments, or that timely payment will be made from the proceeds of
the progress or final payment then due, to subcontractors and suppliers
in accordance with the contractual arrangements with them.
(f) The Government reserves the right to withhold payment until
samples, shop drawings, engineer's certificates, additional bonds,
payrolls, weekly statements of compliance, proof of title,
nondiscrimination compliance reports, or any other things required by
this contract, have been submitted to the satisfaction of the
contracting officer.
If the specifications include guarantee period services, include the
following paragraphs (6) (i), (ii), and (iii) as an addition to the
basic clause in paragraph (b):
(6)(i) The contractor shall show on the critical path method (CPM)
network the total cost of the guarantee period services in accordance
with the guarantee period service section(s) of the specifications.
This cost shall be priced out when submitting the CPM cost loaded
network. The cost submitted shall be subject to the approval of the
contracting officer. The activity on the CPM shall have money only and
not activity time.
(ii) The contractor shall submit with the CPM a guarantee period
performance program which shall include an itemized accounting of the
number of workhours required to perform the guarantee period service on
each piece of equipment. The contractor shall also submit the
established costs including employee fringe benefits and what the
contractor reasonably expects to pay over the guarantee period service,
all of which will be subject to the contracting officer's approval.
(iii) The cost of the guarantee period service shall be prorated on
an annual basis and paid in equal monthly payments by VA during the
period of guarantee. In the event the installer does not perform
satisfactorily during this period, all payments may be withheld and the
contracting officer shall inform the contractor of the unsatisfactory
performance allowing the contractor 10 days to correct and comply with
the contract. The guarantee period service is subject to those
provisions as set forth in the Payment and Default clauses.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 797, Jan. 7,
1985; 53 FR 1632, Jan. 21, 1988; 54 FR 40066, Sept. 29, 1989)
48 CFR 852.236-84 Schedule of work progress.
This clause is to be used on projects which do not include a section
entitled ''Network Analysis System (NAS).'' The cost-loaded activity
network serves the same general purpose as the schedule of work
progress.
(a) The contractor shall submit with the schedule of costs, a
progress schedule that indicates the anticipated installation of work
versus the elapsed contract time, for the approval of the contracting
officer. The progress schedule time shall be represented in the form of
a bar graph with the contract time plotted along the horizontal axis.
The starting date of the schedule shall be the date the contractor
receives the ''Notice to Proceed.'' The ending date shall be the
original contract completion date. At a minimum, both dates shall be
indicated on the progress schedule. The specific item of work, i.e.,
''Excavation'', ''Floor Tile'', ''Finish Carpentry'', etc., should be
plotted along the vertical axis and indicated by a line or bar at which
time(s) during the contract this work is scheduled to take place. The
schedule shall be submitted in triplicate and signed by the contractor.
(b) The actual percent completion will be based on the value of
installed work divided by the current contract amount. The actual
completion percentage will be indicated on the monthly progress report.
(c) The progress schedule will be revised when individual or
cumulative time extensions of 15 calendar days or more are granted for
any reason. The revised schedule should indicate the new contract
completion date and should reflect any changes to the installation
time(s) of the items of work affected.
(d) The revised progress schedule will be used for reporting future
scheduled percentage completion.
(50 FR 794, 797, Jan. 7, 1985, as amended at 53 FR 1632, Jan. 21,
1988)
48 CFR 852.236-85 Supplementary labor standards provisions.
(a) The wage determination decision of the Secretary of Labor is set
forth in section GR, General Requirements, of this contract. It is the
result of a study of wage conditions in the locality and establishes the
minimum hourly rates of wages and fringe benefits for the described
classes of labor in accordance with applicable law. No increase in the
contract price will be allowed or authorized because of payment of wage
rates in excess of those listed.
(b) The contractor shall submit the required copies of payrolls to
the contracting officer through the resident engineer or engineer
officer, when acting in that capacity. Department of Labor Form WH-347,
Payroll, available from the Superintendent of Documents, Government
Printing Office, Washington, DC 20402, may be used for this purpose.
If, however, the contractor or subcontractor elects to use an
individually composed payroll form, it shall contain the same
information shown on Form WH-347, and in addition be accompanied by
Department of Labor Form WH-348, Statement of Compliance, or any other
form containing the exact wording of this form.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.236-86 Workmen's compensation.
The Act of June 25, 1936, 49 Stat. 1938 (40 U.S.C. 290) authorizes
the constituted authority of the several states to apply their workmen's
compensation laws to all lands and premises owned or held by the United
States.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.236-87 Safety requirements.
The following clause is included to designate the VA Safety Officer
and his/her responsibilities:
(a) The resident engineer on all assigned construction projects is
designated as the VA Safety Officer, and as such is responsible for
enforcing all safety regulations as they apply to the safety of
Department of Veterans Affairs employees, visitors, and patients.
Regular safety inspections are conducted by the resident engineer
weekly, and all noted violations of safety and health regulations will
be brought to the attention of the contractor who will take immediate
action to correct such violations. If corrective action is not taken
promptly, a copy of the resident engineer's report will be forwarded to
the Department of Labor.
(b) ''Safety and Health Regulations for Construction,'' may be
obtained from any regional office of the Occupational Safety and Health
Administration, Department of Labor.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.236-88 Contract changes.
The clauses, entitled ''Changes'' in FAR 52.243-4 and ''Differing
Site Conditions'' in FAR 52.236-2 will be supplemented with the
following two clauses. Both clauses shall be included in the
contract.The clause in paragraph (a) of this section will apply to
negotiated changes exceeding $500,000 and does not provide ceiling rates
for indirect expenses. Such expenses will be included as part of the
submission of certified cost and pricing data, will be negotiated by the
contracting officer and will be audited in accordance with 815.505-5.
When the negotiated change will be less than $500,000 the clause
specified in paragraph (b) of this section will apply. Proposals over
$100,000 and not exceeding $500,000 shall be accompanied by certificates
of current cost or pricing data. If cost and pricing data are required
for proposals of $100,000 or less, the contracting officer may require
that it be certified in accordance with FAR 15.804-2(a)(2). It must be
emphasized that the indirect cost rates are ceiling rates only, and the
contracting officer will negotiate the indirect expense rates within the
ceiling limitations. The clauses are a result of an approved FAR
deviation pursuant to Subpart 801.4.
(a) Applicable to changes costing over $500,000:
The clauses entitled ''Changes'' in FAR 52.243-4 and ''Differing Site
Conditions'' in FAR 52.236-2 are supplemented as follows:
(a) When requested by the contracting officer, the contractor shall
submit proposals for changes in work to the resident engineer.
Proposals, to be submitted within 30 calendar days after receipt of
request, shall be in legible form, original and two copies, with an
itemized breakdown that will include material, quantities, unit prices,
labor costs (separated into trades), construction equipment, etc.
(Labor costs are to be identified with specific material placed or
operation performed.) The contractor must obtain and furnish with a
proposal an itemized breakdown as described above, signed by each
subcontractor participating in the change regardless of tier. When
certified cost or pricing data are required under FAR Subpart 15.804,
the cost of pricing data shall be submitted on Standard Form 1411 (SF
1411), Contract Pricing Proposal Cover Sheet, in accordance with FAR
15,804-6.
(b) When the necessity to proceed with a change does not allow
sufficient time to negotiate a modification or because of failure to
reach an agreement, the contracting officer may issue a change order
instructing the contractor to proceed on the basis of a tentative price
based on the best estimate available at the time, with the firm price to
be determined later. Furthermore, when the change order is issued, the
contractor shall submit a proposal for cost of changes in work within 30
calendar days.
(c) The contracting officer will consider issuing a settlement by
determination to the contract, if the contractor's proposal required by
paragraphs (a) and (b) of this clause is not received within 30 calendar
days, or if agreement has not been reached.
(d) Bond premium adjustment, consequent upon changes ordered, will be
made as elsewhere specified at the time of final settlement under the
contract and will not be included in the individual change.
(b) Applicable to changes costing $500,000 or less:
The clauses entitled ''Changes'' in FAR 52.243-4 and ''Differing Site
Conditions'' in FAR 52.236-2 are supplemented as follows:
(a) When requested by the contracting officer, the contractor shall
submit proposals for changes in work to the resident engineer.
Proposals, to be submitted within 30 calendar days after receipt of
request, shall be in legible form, original and two copies, with an
itemized breakdown that will include material, quantities, unit prices,
labor costs (separated into trades), construction equipment, etc.
(Labor costs are to be identified with specific material placed or
operation performed.) The contractor must obtain and furnish with a
proposal an intemized breakdown as described above, signed by each
subcontractor participating in the change regardless of tier. When
certified cost or pricing data are required under FAR 15.804 for
proposals over $100,000, the cost of pricing data shall be submitted on
SF 1411, Contract Pricing Proposal Cover Sheet, in accordance with FAR
15,804-6. No itemized breakdown will be required for proposals
amounting to less than $1,000.
(b) When the necessity to proceed with a change does not allow
sufficient time to negotiate a modification or because of failure to
reach an agreement, the contracting officer may issue a change order
instructing the contractor to proceed on the basis of a tentative price
based on the best estimate available at the time, with the firm price to
be determined later. Furthermore, when the change order is issued, the
contractor shall submit a proposal for cost of changes in work within 30
calendar days.
(c) The contracting officer will consider issuing a settlement by
determination to the contract, if the contractor's proposal required by
paragraphs (a) and (b) of this clause is not received within 30 calendar
days, or if agreement has not been reached.
(d) Allowances not to exceed 10 percent each for overhead and profit
for the party performing the work will be based on the value of labor,
material, and use of construction equipment required to accomplish the
change. As the value of the change increases, a declining scale will be
used in negotiating the percentage of overhead and profit. Allowable
percentages on changes will not exceed the following: 10 percent
overhead and 10 percent profit on the first $20,000; 7 1/2 percent
overhead and 7 1/2 percent profit on the next $30,000; 5 percent
overhead and 5 percent profit on balance over $50,000. Profit shall be
computed by multiplying the profit percentage by the sum of the direct
costs and computed overhead costs.
(e) The prime contractor's or upper-tier subcontractor's fee on work
performed by lower-tier subcontractors will be based on the net
increased cost to the prime contractor or upper-tier subcontractor, as
applicable. Allowable fee on changes will not exceed the following: 10
percent fee on the first $20,000; 7 1/2 percent fee on the next
$30,000; and 5 percent fee on balance over $50,000.
(f) Not more than four percentages, none of which exceed the
percentages shown above, will be allowed regardless of the number of
tiers of subcontractors.
(g) Where the contractor's or subcontractors' portion of a change
involves credit items, such items must be deducted prior to adding
overhead and profit for the party performing the work. The contractor's
fee is limited to the net increase to contractor of subcontractors'
portions cost computed in accordance herewith.
(h) Where a change involves credit items only, a proper measure of
the amount of downward adjustment in the contract price is the
reasonable cost to the contractor if he/she had performed the deleted
work. A reasonable allowance for overhead and profit are properly
includable as part of the downward adjustment for a deductive change.
The amount of such allowance is subject to negotiation.
(i) Cost of Federal Old Age Benefit (Social Security) tax and of
Workmen's Compensation and Public Liability insurance appertaining to
changes are allowable. While no percentage will be allowed thereon for
overhead or profit, prime contractor's fee will be allowed on such items
in subcontractor's proposals.
(j) Overhead and contractor's fee percentages shall be considered to
include insurance other than mentioned herein, field and office
supervisors and assistants, security police, use of small tools,
incidental job burdens, and general home office expenses and no separate
allowance will be made therefor. Assistants to office supervisors
include all clerical, stenographic and general office help. Incidental
job burdens include, but are not necessarily limited to, office
equipment and supplies, temporary toilets, telephone and conformance to
OSHA requirements. Items such as, but not necessarily limited to,
review and coordination, estimating and expediting relative to contract
changes are associated with field and office supervision and are
considered to be included in the contractor's overhead and/or fee
percentage.
(k) Bond premium adjustment, consequent upon changes ordered, will be
made as elsewhere specified at the time of final settlement under the
contract and will not be included in the individual change.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 797, Jan. 7,
1985; 51 FR 23073, June 25, 1986; 52 FR 28559, 28561, July 31, 1987;
52 FR 32013, Aug. 25, 1987; 52 FR 49017, Dec. 29, 1987; 53 FR 1632,
Jan. 21, 1988)
48 CFR 852.236-89 Buy American Act.
The Buy American Act (41 U.S.C. 10a-d) requires that only domestic
construction material shall be used in the performance of contracts for
construction. To clarify VA's position on foreign material, the
following ''Special Notice'' will be inserted into the bid package, in
front of SF 20, Invitation for Bids:
(a) Reference is made to the clause entitled ''Buy American
Construction Materials,'' FAR 52.225-5.
(b) Notwithstanding a bidder's right to offer identifiable foreign
material in its bid pursuant to the above provisions, VA does not
anticipate accepting an offer that includes foreign items.
(c) If a bidder chooses to submit a bid which includes foreign
materials, that bidder must provide a listing of the specific foreign
materials he/she intends to use and a price for said materials. Because
VA has a strong preference for domestic items, bidders are strongly
urged to include bid prices for comparable domestic construction
material. If VA determines not to accept foreign items and no
comparable domestic items are provided the entire bid will be rejected.
(d) Any foreign item proposed after award will be rejected unless the
bidder proves to VA's satisfaction: (1) it was impossible to request
the exemption prior to award, and (2) said domestic construction
material is no longer available, or (3) where the price has escalated so
dramatically after the contract has been awarded that it would be
unconscionable to require performance at that price. The determinations
require by (1), (2) or (3) of this paragraph shall be at the sole
discretion of the Secretary of Veterans Affairs.
(e) By signing this bid, the bidder declares that all articles,
materials and supplies for use on the project shall be domestic unless
specifically set forth on the Bid Form or addendum thereto.
(50 FR 798, Jan. 7, 1985, as amended at 54 FR 40066, Sept. 29, 1989)
48 CFR 852.236-90 Restriction on submission and use of equal products.
As prescribed in 836.202(c), the following clause shall be included
in the solicitation if it is determined that only one product will meet
the Government's minimum needs and the Department of Veterans Affairs
will not allow the submission of ''equal'' products:
This clause applies to the following items:
-- -- --
Notwithstanding the ''Material and Workmanship'' clause of this
contract, FAR 52.236-5(a), nor any other contractual provision,
''equal'' products will not be considered by the Department of Veterans
Affairs and may not be used.
(52 FR 282, Jan. 5, 1987, as amended at 53 FR 7756, Mar. 10, 1988)
48 CFR 852.236-91 Special notes.
(a) Signing of the bid shall be deemed to be a certification by the
bidder that:
(1) Bidder is a construction contractor who owns, operates, or
maintains a place of business, regularly engaged in construction,
alteration or repair of buildings, structures, communication facilities,
or other engineering projects, including furnishing and installing of
necessary equipment; or
(2) If newly entering into a construction activity, bidder has made
all necessary arrangements for personnel, construction equipment, and
required licenses to perform construction work; and
(3) Upon request, prior to award, bidder will promptly furnish to the
Government a statement of facts in detail as to bidder's previous
experience (including recent and current contracts), organization
(including company officers), technical qualifications, financial
resources and facilities available to perform the contemplated work.
(b) Unless otherwise provided in this contract, where the use of
optional materials or construction is permitted the same standard of
workmanship, fabrication and installation shall be required irrespective
of which option is selected. The contractor shall make any change or
adjustment in connecting work or otherwise necessitated by the use of
such optional material or construction, without additional cost to the
Government.
(c) When approval is given for a system component having functional
or physical characteristics different from those indicated or specified,
it is the responsibility of the contractor to furnish and install
related components with characteristics and capacities compatible with
the approved substitute component as required for systems to function as
noted on drawings and specifications. There shall be no additional cost
to the Government.
(d) In some instances it may have been impracticable to detail all
items in specifications or on drawings because of variances in
manufacturers' methods of achieving specified results. In such
instances the contractor will be required to furnish all labor,
materials, drawings, services and connections necessary to produce
systems or equipment which are completely installed, functional, and
ready for operation by facility personnel in accordance with their use.
(e) Claims by the contractor for delay attributed to unusually severe
weather must be supported by climatological data covering the period and
the same period for the 10 preceding years. When the weather in
question exceeds in intensity or frequency the 10 year average, the
excess experienced shall be considered ''unusually severe.'' Comparison
shall be on a monthly basis. Whether or not unusually severe whether in
fact delays the work will depend upon the effect of weather on the
branches of work being performed during the time under consideration.
(53 FR 1632, Jan. 21, 1988)
48 CFR 852.237-70 Contractor responsibilities.
(a) Fixed-Price negotiated or advertised service contracts, other
than automobile, ambulance and aircraft services, will include the
following clause:
The contractor shall obtain all necessary licenses and/or permits
required to perform this work. He/she shall take all reasonable
precautions necessary to protect persons and property from injury or
damage during the performance of this contract. He/she shall be
responsible for any injury to himself/herself, his/her employees, as
well as for any damage to personal or public property that occurs during
the performance of this contract that is caused by his/her employee's
fault or negligence, and shall maintain personal liability and property
damage insurance having coverage for a limit as required by the laws of
the State of ------ . Further, it is agreed that any negligence of the
Government, its officers, agents, servants and employees, shall not be
the responsibility of the contractor hereunder with the regard to any
claims, loss, damage, injury and liability resulting therefrom.
(b) Automobile, ambulance and aircraft service contracts will utilize
the clause prescribed in 852.237-71.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.237-71 Indemnification and insurance (vehicle and aircraft
service contracts).
(a) Contracts for vehicle and aircraft services will utilize the
following clause as provided in 828.306.
(a) Indemnification. The contractor expressly agrees to indemnify
and save the Government, its officers, agents, servants, and employees
harmless from and against any and all claims, loss, damage, injury, and
liability, however caused, resulting from, arising out of, or in any way
connected with the performance of work under this agreement. Further,
it is agreed that any negligence or alleged negligence of the
Government, its offficers, agents, servants, and employees, shall not be
a bar to a claim for indemnification unless the act or omission of the
Government, its officers, agents, servants, and employees is the sole,
competent, and producing cause of such claims, loss, damage, injury, and
liability. At the option of the contractor, and subject to the approval
by the contracting officer of the sources, insurance coverage may be
employed as guaranty of indemnification.
(b) Insurance. Satisfactory insurance coverage is a condition
precedent to award of a contract. In general, a successful bidder must
present safisfactory evidence of full compliance with State and local
requirements, or those below stipulated, whichever are the greater.
More specifically, workman's compensation and employer's liability
coverage will conform to applicable State law requirements for the
service contemplated, whereas general liability and automobile liability
of comprehensive type, shall in the absence of higher statutory
minimums, be required in the amounts per vehicle used of not less than
$200,000 per person and $500,000 per occurrence for bodily injury and
$20,000 per occurrence for property damage. State approved sources of
insurance coverage ordinarily will be deemed acceptable to the Veterans'
Administration installation, subject to timely certifications by such
sources of the types and limits of the coverages afforded by the sources
to the bidder. (In those instances where airplane service is to be
used, substitute the word ''aircraft'' for ''automobile'' and
''vehicle'' and modify coverage to require aircraft public and passenger
liability insurance of at least $200,000 per passenger and $500,000 per
occurrence for bodily injury, other than passenger liability, and
$200,000 per occurrence for property damage. Coverage for passenger
liability bodily injury shall be at least $200,000 multiplied by the
number of seats or passengers, whichever is greater.)
(b) Exceptions. The provisions of this 852.237-71 do not apply to
emergency or sporadic ambulance service authorized by VA Manual MP-1,
Part II, Chapter 3: Provided, That such service is not used solely for
the purpose of avoiding entering into a continuing contract. Provided
further, That such services will be obtained from firms known to carry
insurance coverage in accordance with State or local requirements.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.247-70 Transportation provision for bid evaluation.
In circumstance enunciated in 847.305-70, the following provision
will be inserted in the IFB:
For the purpose of evaluating bids and for not other purpose, the
delivered price per unit will be determined by adding the nationwide
average transportation charge to the f.o.b. origin bid prices. The
nationwide average transportation charge will be determined by applying
the following formula: Multiply the guaranteed shipping weight by the
freight, parcel post, or express rate, whichever is proper, to each
destination shown below and then multiply the resulting transportation
charges by the anticipated demand factor shown for each destination.
Total the resulting weighted transportation charges for all destinations
and divide the total by 20 to give the nationwide average transportation
charge.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 798, Jan. 7,
1985)
48 CFR 852.270-1 Representatives of contracting officers.
Whenever it is considered necessary to designate a representative
under 801.603-70, the following provision will be made a part of the
request for proposal or invitation to bid:
The contracting officer reserves the right to designate
representatives to act for him/her in furnishing technical guidance and
advice or generally supervise the work to be performed under this
contract. Such designation will be in writing and will define the scope
and limitations of the designee's authority. A copy of the designation
shall be furnished the contractor.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 798, Jan. 7,
1985)
48 CFR 852.270-2 Bread and bakery products.
The following clause will be inserted in all contracts for bread and
bakery products:
The bidder agrees to furnish up to 25 percent more or 25 percent less
than the quantities awarded when ordered by the Department of Veterans
Affairs.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.270-3 Purchase of shell fish.
Invitations for bids or requests for proposals covering oysters,
clams or mussels, fresh or frozen, will contain the following clause:
The bidder certifies that oysters, clams, and mussels will be
furnished only from plants approved by and operated under the
supervision of shell fish authorities of States whose certifications are
endorsed currently by the U.S. Public Health Service, and the names and
certificate numbers of those shell fish dealers must appear on current
lists published by the U.S. Public Health Service. These items shall be
packed and delivered in approved containers, sealed in such manner that
tampering is easily discernible, and marked with packer's certificate
number impressed or embossed on the side of such containers and preceded
by the State abbreviation. Containers shall be tagged or labeled to
show the name and address of the approved producer or shipper, the name
of the State of origin, and the certificate number of the approved
producer or shipper.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 798, Jan. 7,
1985)
48 CFR 852.270-4 Commercial advertising.
All VA contracts will include the following clause:
The bidder or offeror agrees that if a contract is awarded to
him/her, as a result of this solicitation, he/she will not advertise the
award of the contract in his/her commercial advertising in such a manner
as to state or imply that the Department of Veterans Affairs endorses a
product, project or commercial line of endeavor.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, 798, Jan. 7,
1985)
48 CFR 852.271-70 Services provided eligible beneficiaries.
The following clause will be included in all contracts covering
services provided to eligible beneficiaries:
The contractor agrees to provide all services specified in this
contract for any person determined eligible by the Chief Medical
Director, or designee, regardless of the race, color, religion, sex, or
national origin of the person for whom such services are ordered. The
contractor further warrants that he/she will not resort to
subcontracting as a means of circumventing this provision.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.271-71 Visits to Department of Veterans Affairs guidance
centers.
The following clause will be included in contracts entered into for
services relating to vocational counseling:
Any duly authorized representative of the Department of Veterans
Affairs shall at all reasonable times be permitted to inspect the
counseling and testing operations being performed under this contract
and the records of these operations.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.271-72 Time spent by counselee in counseling process.
Insert the following clause in contracts entered into for services
relating to vocational counseling:
The contractor agrees that no counselee referred under the provisions
of this agreement will be required to give any extra time in connection
with the counseling process to supply test results or other information
for purposes other than those specified in this contract.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.271-73 Use and publication of counseling results.
Insert the following clause in contracts entered into for services
relating to vocational counseling:
The contractor agrees that none of the information or data gathered
in connection with the services specified in this contract or studies or
materials based thereon or relating thereto will be publicized without
the prior approval of the Chief Benefits Director or his/her designee.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.271-74 Inspection.
Insert the following clause in contracts entered into with
educational institutions and training establishments for education and
rehabilitation:
The contractor will permit the duly authorized representative of the
Department of Veterans Affairs to visit the place of instruction as may
be necessary and examine the training facilities and work of the
veterans in training under this contract.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.271-75 Extension of contract period.
The following clause will be included in contracts where appropriate
pertaining to services for education and rehabilitation:
This contract may be extended from year to year if agreeable to both
parties provided the agreement for extension is consummated 30 days
prior to the expiration date, and further provided that there is no
change in the provisions, terms, conditions, or rate of payment. Any
extension made hereunder is subject to the availability of funds during
the period covered by the extension.
(49 FR 12629, Mar. 29, 1984, as amended at 50 FR 794, Jan. 7, 1985)
48 CFR 852.271-75 PART 853 -- FORMS
Sec.
853.000 Scope of part.
48 CFR 852.271-75 Subpart 853.1 -- General
853.107 Obtaining forms.
48 CFR 852.271-75 Subpart 853.2 -- Prescription of Forms
853.201 Federal acquisition system.
853.201-1 Contracting authority and responsibilities (SF 1402).
853.213 Small purchase and other simplified purchase procedures (VA
Forms 90-2138, 10-7078, 10-7079, 10-2570d, 10-2511, and 10-2421).
853.215 Contracting by negotiation (VA Form 10-1170).
853.236 Construction and architect-engineer contracts.
853.236-1 (Reserved)
853.236-2 Architect-engineer services (VA Form 08-6298).
853.271 Loan Guaranty, Education and Vocational Rehabilitation and
Counseling Programs.
853.271-1 Loan Guaranty Program (VA Forms 26-6724 and 26-1839).
853.271-2 Vocational Rehabilitation and Counseling Programs (VA Forms
22-1903, 22-1905 and 22-1931).
853.271-3 Education Programs (VA Forms 22-1982, 22-1982e, 22-1982c,
and 22-7398).
48 CFR 852.271-75 Subpart 853.3 -- Illustration of Forms
853.300 Scope of subpart.
Authority: 38 U.S.C. 210 and 40 U.S.C. 486(c).
Source: 49 FR 12639, Mar. 29, 1984, unless otherwise noted.
48 CFR 853.000 Scope of part.
This part prescribes Department of Veterans Affairs forms for use in
the acquisition of goods and services. It only identifies forms which
are used between VA and its contractors or the general public. It does
not identify forms for uses internal to VA or between VA and another
Federal agency.
(49 FR 12639, Mar. 29, 1984, as amended at 54 FR 40066, Sept. 29,
1989)
48 CFR 853.000 Subpart 853.1 -- General
48 CFR 853.107 Obtaining forms.
VA forms may be obtained from any VA contracting office or by
requesting such forms from the Deputy Assistant Secretary for
Acquisition and Materiel Management (91), Department of Veterans
Affairs, 810 Vermont Avenue NW., Washington, DC 20420.
(49 FR 12639, Mar. 29, 1984; 50 FR 798, Jan. 7, 1985; 54 FR 40066,
Sept. 29, 1989)
48 CFR 853.107 Subpart 853.2 -- Prescription of Forms
48 CFR 853.201 Federal acquisition system.
48 CFR 853.201-1 Contracting authority and responsibilities (SF 1402).
Current delegations of contracting authority appointed with VA Form
90-2267, Certificate of Designation (contracting officer), will remain
in effect until replaced with an executed SF 1402, Certificate of
Appointment, in accordance with 801.603-3.
48 CFR 853.213 Small purchase and other simplified purchase procedures
(VA Forms 90-2138, 10-7078, 10-7079, 10-2570d, 10-2511, and 10-2421).
The following forms are prescribed as stated below and in the
circumstances and within the limitations provided:
(a) VA Form 90-2138, Order for Supplies or Services shall be used as
indicated in 813.505-2. It will be used in lieu of but similar to OF
347, Order for Supplies and Services.
(b) The following forms are for use for obtaining indicated medical
and dental services within the limitations prescribed in 813.505-2:
(1) VA Form 10-7078, Authorization and Invoice for Medical and
Hospital Services.
(2) VA Form 10-7079, Request for Outpatient Medical Services.
(3) VA Form 10-2570d, Dental Record, Authorization and Invoice for
Outpatient Services.
(c) VA Form 10-2511, Authority and Invoice for Travel by Ambulance or
Other Hired Vehicle, will be used as prescribed in 813.505-2(c).
(d) VA Form 10-2421. Prosthetics Authorization and Invoice, will be
used from indicated procurements not to exceed $300 as prescribed in
813.505-2.
(49 FR 12639, Mar. 29, 1984, as amended at 50 FR 798, Jan. 7, 1985)
48 CFR 853.215 Contracting by negotiation (VA Form 10-1170).
VA Form 10-1170, Application for Furnishing Nursing Home Care to
Beneficiaries of the Department of Veterans Affairs, will be utilized
for establishing contract nursing home care for VA beneficiaries.
48 CFR 853.236 Construction and architect-engineer contracts.
853.236-1 (Reserved)
48 CFR 853.236-2 Architect-engineer services (VA Form 08-6298).
VA Form 08-6298, Architect-Engineer Fee Proposal, will be used as
prescribed in 836.606-71.
48 CFR 853.271 Loan Guaranty, Education, and Vocational Rehabilitation and Counseling Programs.
48 CFR 853.271-1 Loan Guaranty Program (VA Forms 26-6724 and 26-1839).
(a) VA Form 26-6724, Invitation, Bid, and/or Acceptance or
Authorization, will be used in obtaining services specified in Subpart
871.1.
(b) VA Form 26-1839, Compliance Inspection Report, will be used for
inspection of repairs for properties under the Loan Guaranty Program as
specified in 846.472.
48 CFR 853.271-2 Vocational Rehabilitation and Counseling Programs (VA
Forms 22-1903, 22-1905, and 22-1931).
The following forms will be used in acquiring education or
rehabilitation services as prescribed in Subpart 871.2:
(a) VA Form 22-1903, Contract for Education and Training.
(b) VA Form 22-1905, Authorization and Certification of Entrance or
Reentrance into Training and Certification of Trainee Status.
(c) VA Form 22-1931, Contract for Services Relating to Vocational
Counseling.
48 CFR 853.271-3 Education Programs (VA Forms 22-1982, 22-1982e,
22-1982c, and 22-7398).
The following forms are prescribed for use in obtaining services for
the Veterans Benefits Administration Education programs:
(a) VA Form 22-1982, State Approving Agency (SAA) Reimbursement
Contract.
(b) VA Form 22-1982e, Schedule No. 1 to the SAA Reimbursement
Contract; Accredited and Non-Accredited Courses Under Chapter 32, 34,
and 35, or 36, of Title 38 United States Code, whichever is applicable.
(c) VA Form 1982c, Schedule No. 2 to the SAA Reimbursement Contract;
Apprentice Or Other Training On-the-Job.
(d) VA Form 22-7398, Quarterly Report of State Approving Agency
Activities Under Chapter 36, Title 38, United States Code.
48 CFR 853.271-3 Subpart 853.3 -- Illustration of Forms
48 CFR 853.300 Scope of subpart.
VA Forms will not be illustrated in this VAAR. Persons wishing to
obtain copies of VA forms prescribed in the VAAR may do so in accordance
with 853.107.
48 CFR 853.300 SUBCHAPTER I -- DEPARTMENT SUPPLEMENTARY REGULATIONS
48 CFR 853.300 PART 870 -- SPECIAL PROCUREMENT CONTROLS
Sec.
870.111 Subsistence.
870.111-5 Frozen processed food products.
870.112 Telecommunications equipment.
870.113 Paid use of conference facilities.
870.114 Asbestos.
870.114-1 General.
870.114-2 Background.
870.114-3 Approving authority.
870.114-4 Exempted products containing asbestos.
870.115 Food service equipment.
Authority: 38 U.S.C. 210 and 40 U.S.C. 486(c).
Source: 49 FR 12640, Mar. 29, 1984, unless otherwise noted.
48 CFR 853.300 Subpart 870.1 -- Controls
48 CFR 870.111 Subsistence.
48 CFR 870.111-5 Frozen processed food products.
(a) All frozen, processed food products procured which contain meat,
poultry or a significant proportion of eggs, will be processed or
prepared in plants operated under the supervision of the U.S.
Department of Agriculture (USDA). The product will be inspected and
approved in accordance with the regulations of the USDA governing meat,
poultry or egg inspection. A label or seal, affixed to the container,
indicating compliance with these regulations will be accepted as
evidence of compliance. The product must bear a label complying with
the Federal Food, Drug and Cosmetic Act which requires that all
ingredients be listed according to the order of their predominance.
(b) All frozen, processed food products procured which contain fish
or fish products will be processed or prepared in plants operated under
the supervision of the U.S. Department of Commerce (USDC). The products
listed in USDC publication titled, ''Approved List of Sanitarily
Inspected Fish Establishments'' are processed in plants under Federal
inspection of the National Marine Fisheries Service, National Oceanic
and Atmospheric Administration, U.S. Department of Commerce. The
inspected products packed under various labels bearing the brand names
are produced in accordance with current U.S. Grade Standards or official
product specifications, packed under optimum hygienic conditions, and
must meet Federal, State, and city sanitation and health regulations.
Such brand label or USDC seal, affixed to a container, indicating
compliance with USDC regulations will be accepted as evidence of
compliance. In lieu thereof, the shipment may be lot inspected by the
USDC and containers stamped to indicate acceptance or a Certification of
Inspection issued to accompany the shipment. The product must bear a
label complying with the Federal Food, Drug and Cosmetic Act which
requires that all ingredients be listed according to the order of their
predominance.
(c) Producers of frozen bakery products which are shipped in
interstate commerce are required to comply with the Federal Food, Drug
and Cosmetic Act. Therefore, it must be vertified that the product, in
fact was shipped interstate or that the producer ships products to other
purchasers interstate. In addition, the product must bear a label
complying with the Act which requires that all ingredients be listed
according to the order of their predominance.
(49 FR 12640, Mar. 29, 1984, as amended at 54 FR 40066, Sept. 29,
1989)
48 CFR 870.112 Telecommunications equipment.
(a) Solicitations, including those for construction, based on
detailed purchase descriptions or formal specifications for
telecommunications equipment, as defined in VA Manual MP-6, Part VIII,1
will include the clause required by 852.210-74.
(b) The descriptive literature to be furnished by the contractor
after award, required by the clause in 852.210-74, is to be reviewed and
approved by the Office of Information Resources Operations prior to
delivery and/or installation by the contractor. Promptly upon receipt
of the descriptive literature, contracting officers will forward it
together with a copy of the contract, the formal specification, or the
detailed purchase description to the Deputy Assistant Secretary for
Acquisition and Materiel Management (93).
(c) Solicitations, including those for construction, for
telecommunications equipment based on ''brand name or equal'' purchase
description are subject to the following:
(1) Prior to award, contracting officers will forward to the Deputy
Assistant Secretary for Acquisition and Materiel Management (93), the
abstract of bids, one copy of each offer received, including descriptive
literature and pertinent letters, and the comments and recommendations
of the contracting officer.
(2) No commitments are to be made to contractors prior to receipt of
Central Office reaction.
(3) Allowance of at least 30 calendar days for acceptance will be
specified in the solicitation in order to allow sufficient time for the
review required by this paragraph (c). (See FAR 52.214-16.)
(49 FR 12640, Mar. 29, 1984, as amended at 50 FR 798, Jan. 7, 1985;
54 FR 30044 and 30045, July 18, 1989; 54 FR 40066, Sept. 29, 1989)
1Available at any Veterans Administration facility.
48 CFR 870.113 Paid use of conference facilities.
(a) The rental of space for VA-sponsored symposia and training
sessions may be unwarranted when other alternatives are available at no
expense or reduced expense to the Government. After the geographical
location for a VA conference has been selected, based on minimum overall
travel costs for all Government participants and other relevant factors,
a request for conference space will be forwarded to the servicing Supply
activity. The request for conference space should afford the
contracting officer every opportunity to secure rent-free facilities.
(b) The following criteria for the selection of an appropriate
facility will apply:
(1) A thorough effort will be made to schedule conferences and
training sessions so that the conference facilities of VA installations
in the city where the conference is held may be used.
(2) Where no VA space is available, the General Services
Administration will be contacted to determine if there is other
Government agency space which may be used.
(3) Efforts will be made to schedule conferences, where Government
space is not available, through hotels and motels which offer free
conference facilities in exchange for a stipulated number of lodging
reservations for participants. Surcharges per lodging or increased room
rates, to offset the cost of the conference room, shall be considered
payment for such space.
(4) In the event none of these is available on the desired dates,
consideration will be given to rescheduling the conference to avail VA
of the use of facilities without payment of a fee.
(5) If none of the above is practical, rental conference space will
be obtained. Complete documentation of efforts to secure free
conference space, as outlined above, will be maintained in the purchase
order file. The costs of coffee, refreshments, meals, lodging, tips and
other supplies and services not directly related to the presentations
within the conference space are not allowable.
(c) The conference coordinator of the requesting organization will
continue to be responsible for individual room reservations, including
any cancellations.
(49 FR 12640, Mar. 29, 1984, as amended at 54 FR 40066, Sept. 29,
1989)
48 CFR 870.114 Asbestos.
48 CFR 870.114-1 General.
This section applies to the purchase and use of asbestos products and
equipment or materials containing asbestos products in the Department of
Veterans Affairs.
48 CFR 870.114-2 Background.
Exposure to asbestos is associated with chronic and debilitating lung
disease and cancer. To reduce the health hazard related to the exposure
to asbestos, the U.S. Environmental Protection Agency and the U.S.
Department of Labor (Occupational Safety and Health Administration) have
issued specific regulations on asbestos. Although these regulations do
not call for a complete ban on the use of asbestos, they do impose
strict requirements on its use, airborne contamination and disposal.
48 CFR 870.114-3 Approving authority.
Asbestos products and equipment or materials containing asbestos
products shall not be specified nor purchased for use in the Department
of Veterans Affairs if any suitable substitutes are available. If
suitable substitutes are not available, specific authorization to
purchase and use asbestos products and equipment or materials specifying
asbestos products, must be granted by the Secretary or designee.
Requests for authorization will be submitted through the Director,
Facilities Engineering Service (085E). The following information will
be provided:
(a) The name of the product, source of supply, and physical form of
asbestos as used in the product or equipment;
(b) A description of use, including purpose, urgency, methodology,
qualities, and by whom; and
(c) Safeguards being employed, with particular emphasis on the
identification of the asbestos products, and procedures to be taken to
prevent airborne contamination and disposal.
(49 FR 12640, Mar. 29, 1984, as amended at 54 FR 40066, Sept. 29,
1989)
48 CFR 870.114-4 Exempted products containing asbestos.
VA Central Office, Facilities Engineering Service (085E), is
responsible for maintaining a list of products containing asbestos which
are exempted by the Secretary or designee from this policy.
(49 FR 12640, Mar. 29, 1984, as amended at 54 FR 40066, Sept. 29,
1989)
48 CFR 870.115 Food service equipment.
(a) All new food service equipment purchased for Dietetic Service
through other than the Defense General Supply Center (DGSC) sources must
meet requirements set forth by the National Sanitation Foundation (NSF).
(b) The contracting officer will accept an affixed NSF label and/or
documentation of the certification by NSF from the contractor as
evidence that the subject equipment meets sanitation standards issued by
the Foundation.
48 CFR 870.115 PART 871 -- LOAN GUARANTY AND VOCATIONAL REHABILITATION AND COUNSELING PROGRAMS
48 CFR 870.115 Subpart 871.1 -- Loan Guaranty Program
Sec.
871.100 Scope of subpart.
871.101 Policy.
871.102 Authorization for repairs to properties.
871.103 Repair specifications.
871.104 Qualification of bidders.
871.105 Debarred, suspended, and ineligible bidders.
871.106 Lien waivers.
871.107 Stipulations against liens.
48 CFR 870.115 Subpart 871.2 -- Vocational Rehabilitation and Counseling
Program
871.200 Scope of subpart.
871.201 General.
871.201-1 Requirements for use of contracts.
871.201-2 Requirements when contracts are not required.
871.201-3 Medical services.
871.201-4 Letter contracts.
871.202 Marking and release of supplies.
871.203 Renewals or supplements to contracts.
871.204 Guaranteed payment.
871.205 Proration of charges.
871.206 Other fees and charges.
871.207 Payment of tuition or fees.
871.208 Rehabilitation facilities.
871.209 Records and reports.
871.210 Correspondence courses.
871.211 Information concerning correspondence courses.
48 CFR 870.115 Subpart 871.3 -- Education Program (Reserved)
Authority: 38 U.S.C. 210, 40 U.S.C. 486(c), 38 CFR 36.4320, 38
U.S.C. Chs. 31, 32, 33, 34, 35, and 37 and Pub. L. 98-77.
Source: 49 FR 12641, Mar. 29, 1984, unless otherwise noted.
48 CFR 870.115 Subpart 871.1 -- Loan Guaranty Program
48 CFR 871.100 Scope of subpart.
This subpart sets forth policy and procedure with respect to the loan
guaranty and direct loan programs as it pertains to property management,
including the acquisition, management, and disposition of property,
real, personal, or mixed, which were secured by loans guaranteed,
insured, or made pursuant to Title 38, United States Code.
48 CFR 871.101 Policy.
It is the policy of the Department of Veterans Affairs that all
procurement effected by sealed bidding or negotiation pertaining to the
expenditure of funds for the repair and maintenance of Department of
Veterans Affairs property acquired under Chapter 37, Title 38, United
States Code, be made in accordance with those regulations as set forth
in FAR Parts 14, 15 and 16 as supplemented or implemented by Parts 814,
815 and 816 of this Chapter and otherwise authorized by this Subpart
871.1 and specific subparts or sections as stated in this subpart.
(49 FR 12641, Mar. 29, 1984, as amended at 54 FR 40066, Sept. 29,
1989; 55 FR 31600, Aug. 3, 1990)
48 CFR 871.102 Authorization for repairs to properties.
(a) Except as provided in this subpart, Directors, VA Regional
Offices, are authorized to purchase supplies and services for the repair
to any Department of Veterans Affairs property acquired under Chapter
37, Title 38, United States Code, where the cost does not exceed $5,000
on any single transaction.
(b) In those cases where the expenditure is known or estimated to
exceed $5,000, the request, together with the loan guaranty folder, will
be forwarded to the Chief Benefits Director for approval.
(c) During the period when the Department of Veterans Affairs has
assumed custody of the property from a holder and prior to its
conveyance to the Deparment of Veterans Affairs pursuant to 38 CFR
36.4320, repairs are authorized not in excess of $3,500 when appropriate
to make the property ready for sale at an earler date than would
otherwise be possible if the repair program was delayed until such time
as the Department of Veterans Affairs acquired absolute title. In those
cases where the expenditure is known or estimated to exceed $3,500, the
request, together with the loan guarantee folder, will be forwarded to
the Chief Benefits Director for approval.
(d) No repairs may be made to property by the holder when it has
continued custody except for emergeny repairs not in excess of $200
unless adequate notice has been given the Director, VA Regional Office.
Emergency repairs as applied in this paragraph will be deemed to mean
those requiring immediate action to preserve the property from serious
damage or to correct a situation imminently dangerous to life or limb,
and includes the initial cleanup of the property in order to prevent the
risk of damage by fire or vandalism.
(e) An approved management broker may be authorized, at the time a
property is listed with him/her, to incur expenses for fuel and
utilities or other recurring items which are required to be furnished by
the Department of Veterans Affairs to its tenants or are required in the
maintenance of the property. Advance blanket authorizations to
management brokers will be limited to repairs not in excess of $200 in
any transaction, (the management broker will either submit receipts with
his/her invoice or maintain such receipts for inspection). Expenditures
in excess of $200 require prior approval of the Director, Regional
Office, having jurisdiction of the property. Repair jobs may not be
split to circumvent this restriction.
(49 FR 12641, Mar. 29, 1984, as amended at 55 FR 31600, Aug. 3, 1990)
48 CFR 871.103 Repair specifications.
(a) Repair specifications covering authorized repairs will be
formulated in sufficient detail to permit competitive bids on an
identical basis and as a mimimum will contain the following.
(1) Requirement that the contractor obtain all necessary permits.
(2) Requirement that inspection will be made at stated intervals if
appropriate and that final inspection will be made in all cases.
(3) Any other requirement necessary to protect the interests of the
Government.
(b) The minimum construction requirements may be used as a guide in
the preparation of repair specifications. Specifications should not
require conformance with minimum construction requirements in cases
where scope of repairs are minor, the relatively small value of the
property or its poor salability. The quality of repairs to be specified
shall be consistent with the type and value of the property.
(c) In all cases, the specifications for repairs will be based on one
of the following categories:
(1) Minimum specifications for rental purposes.
(2) Average specifications for sales purposes.
(3) Above average specifications for desirable properties.
48 CFR 871.104 Qualification of bidders.
(a) Qualification of bidders shall be established in accordance with
procedures outlined in FAR Subpart 9.1 and Subpart 809.1 of this
chapter.
(b) Management brokers are not considered acceptable bidders for
repair contracts due to their close association on a fee basis with the
Department of Veterans Affairs. This restriction would apply equally to
any contracting firm in which the management broker has an interest and
in which it could be presumed that such firm would have an advantage
over the other bidders. This does not preclude the performance of work
by management brokers of a routine recurring maintenance category or
minor repairs by personnel employed directly on the payroll of the
broker. In these cases, it must be established that any charges for
such services are not in excess of the prevailing fees for like services
in the area.
48 CFR 871.105 Debarred, suspended and ineligible bidders.
Firms or individuals will be debarred and suspended in accordance
with FAR Subpart 9.4 and Subpart 809.4 of this chapter.
48 CFR 871.106 Lien waivers.
(a) Contracts in the amount of $2,500 or more will contain a
requirement that the contractor will sign a formal release in full or a
lien waiver before payment may be made. The release or waiver will
accompany the contractor's invoice.
(b) Contractors will be required to notify the Director, Regional
Office, of any subcontractors for services or materials in excess of
$2,500. Such subcontractors or material men will be required to sign
the release or waiver jointly with the prime contractor or to execute
release or waiver in his/her own name.
(c) Prior to any authorized partial payment the contractor will be
required to execute a release or waiver.
(d) Due to the variations of local law, no standard release or waiver
is prescribed. Each release or waiver will be prepared in accordance
with local law and will be in form acceptable by the District Counsel.
48 CFR 871.107 Stipulations against liens.
(a) Where determined necessary by the Director, Regional Office,
contracts in an amount less than $2,500 may contain the following:
The contractor expressly waives any and all rights to file or
maintain any mechanics lien or claim against the aforesaid premises.
(b) Contracts in the amount of $2,500 or more where there is doubt as
to the final responsibility of the contractor will provide maximum
potection to the Government by including such requirements as are
available under local law. Advice and approval of any contract
stipulation or legal stipulations against liens will be obtained from
the District Counsel.
48 CFR 871.107 Subpart 871.2 -- Vocational Rehabilitation and Counseling Program
48 CFR 871.200 Scope of subpart.
This subpart establishes policy and procedures for the vocational
rehabilitation and counseling program as it pertains to contracts for
training and rehabilitation services, approval of institutions
(including rehabilitation facilities), training establishments, and
employers under Chapter 31, Title 38, United States Code, and contracts
for counseling services under Chapter 32, 34, and 35, Title 38, United
States Code and Pub. L. 98-77, Emergency Veterans' Jobs Training Act of
1983.
48 CFR 871.201 General.
48 CFR 871.201-1 Requirements for the use of contracts.
Contracts will be negotiated for tuition, fees, books, supplies and
other allowable expenses incurred by the institution, training
establishment or employer for the training and rehabilitation of
eligible veterans under Chapter 31, Title 38, United States Code, under
the following conditions:
(a) With institutions offering courses of instruction by
correspondence. Courses of instruction by correspondence is deemed to
mean a course of education or training conducted by mail consisting of
regular lessons or reading assignments, the preparation of required
written work which involves the application of principles studied in
each lesson, the correction of assigned work with such suggestions or
recommendation as may be necessary to instruct the student, the keeping
of student achievement records and issuance of a diploma, certificate,
or other evidence to the student upon satisfactorily completing the
requirements of the course.
(b) With institutions, training establishments, employers, or
individuals approved to provide training and rehabilitation services
under Chapter 31, Title 38, United States Code, for whom special
services or special courses are furnished at the request of the
Department of Veterans Affairs. The terms ''special services'' or
''special courses'' have the same meaning as under 831.7001-2.
(49 FR 12641, Mar. 29, 1984; 50 FR 798, Jan. 7, 1985)
48 CFR 871.201-2 Requirements when contracts are not required.
(a) When a contract is not required, a signed statement of charges
will be obtained from the educational institution or training
establishment for courses to be offered, including the rate of tuition,
fees, and separate charges, if any, for books, supplies, and equipment
handling charges, refund policy and such other provisions as are
required to determine proper payment. The statement of charges may be
in the form of a statement on VA Form 22-1905, Authorization and
Certification of Entrance or Reentrance into Training, that charges will
be in accordance with catalog or other published document (identify
publication). The statement of charges may not exceed those charges
paid by nonveterans or that is published in the school catalog or other
published document.
(b) For the purpose of this section a contract will not be required
when all tuition, fees, books, supplies, or services necessary to train,
or educate an eligible veteran under Chapter 31, Title 38, United States
Code, are published in the school catalog or other published document.
(49 FR 12641, Mar. 29, 1984; 50 FR 798, Jan. 7, 1985)
48 CFR 871.201-3 Medical services.
The medical services provided trainees under vocational
rehabilitation and education contracts, agreements, or arrangements are
separate and distinct from any other medical service under the
jurisdiction of the Veterans Health Services and Research Administration
to which the veteran may be entitled and no certificate of eligibility
is required from that administration.
(49 FR 12641, Mar. 29, 1984, as amended at 54 FR 40066, Sept. 29,
1989)
48 CFR 871.201-4 Letter contracts.
Letter contracts are authorized for use in accordance with the
provision of FAR 16.603 and in those cases in which it is not possible
to complete a formal contract with an approved educational institution
prior to the enrollment of eligible veterans for training.
48 CFR 871.202 Marking and release of supplies.
Supplies will not be marked to indicate ownership by the United
States and will be deemed released to the trainee at the time they are
furnished.
48 CFR 871.203 Renewals or supplements to contracts.
Except for contracts for educational and vocational counseling,
contracts may be renewed from year to year, providing there is no change
in the schedule or provisions as originally consummated by completion of
a renewal agreement no later than 30 days prior to the expiration of the
contract.
(a) Supplements may be negotiated at any time during the contract
period upon the completion of the supplemental agreement.
(b) Contracts for educational and vocational counseling may provide
for automatic extension from year to year.
48 CFR 871.204 Guaranteed payment.
No contract or agreement may be entered into with any institution or
training establishment whereby the Department of Veterans Affairs will
be required to pay a minimum charge, or required to enroll a minimum
number of participants per quarter, semester, term, course, or other
period.
(49 FR 12641, Mar. 29, 1984; 50 FR 798, Jan. 7, 1985)
48 CFR 871.205 Proration of charges.
The contract will include the exact formula agreed on for the
proration of charges in the event that the veteran's program is
interrupted or discontinued prior to the end of the term, semester,
quarter, or other period, or the program is completed in less time than
stated in the contract.
48 CFR 871.206 Other fees and charges.
Fees and other charges which are not prescribed by law but are by
nongovernmental organizations, such as initiation fees required to
become a member of a labor union and the dues necessary to maintain
membership incidental to training on the job or to obtaining employment
during a period in which the veteran is a Chapter 31 participant, may be
paid provided there are no facilities feasibly available whereby the
necessary training can be feasibly accomplished or employment obtained
without paying such charges. Payment for such fees will be made in
accordance with Part 813.
(49 FR 12641, Mar. 29, 1984, as amended at 54 FR 40066, Sept. 29,
1989)
48 CFR 871.207 Payment of tuition or fees.
(a) Contracts, agreements, or arrangements requiring the payment of
tuition or fees will provide for the following:
(1) Payment for tuition or fees will be made in arrears and will be
prorated in installments over the school year or the length of the
course except that institutions may be paid in accordance with the
provision of paragraph (a)(2) of this section, provided such
institutions operate on a regular term, quarter, or semester basis and
normally accept students only at the beginning of the term, quarter, or
semester and provided for further such institutions are either:
(i) Institutions of higher learning that use a standard unit of
credit recognized by accrediting associations (such institutions will
include those which are members of recognized national or regional
educational accrediting associations, and those which, although not
members of such accrediting associations, grant standard units of credit
acceptable at full value without examination by collegiate institutions
which are members of national or regional accrediting associations).
(ii) Public tax supported institutions.
(iii) Institutions operated and controlled by State, county, or local
boards of education.
(2) Institutions coming within the exceptions of paragraph (a)(1) of
this section which have a refund policy providing for a graduated scale
of charges for purposes of determining refunds may be paid part or all
such tuitions or fees for a term, quarter, or other period of enrollment
immediately following the date on which the refund expires.
(3) Proration of charges will not apply to a fee which is for
noncontinuing service such as registration fee, etc.
(b) The period for which payment of charges may be made will be the
period of actual enrollment and subject to the following:
(1) The effective date will be the date of the trainee's entrance
into training status except that payment may be made for an
entire-semester, quarter, or term in institutions operating on that
basis if the trainee enters no later than the final date set by the
institution for enrolling for full credit.
(2) In those cases where the institution has not set a final date for
enrolling for full credit or will not set a date acceptable to the
Veterans Administration, payment may be prorated on the basis of
attendance regardless of the refund policy.
(3) If an institution customarily charges for the amount of credit or
number of hours of attendance for which a trainee enrolls, payment may
be made on that basis when a trainee enrolls after the final date
permitted for carrying full credit for the semester or term.
(c) The terminal date to which payment will be made is the day
following:
(1) The end of the semester, term or quarter during which the
training is furnished.
(2) The date of interruption or discontinuance of training.
(3) The date of completion of the course.
(49 FR 12641, Mar. 29, 1984, as amended at 50 FR 798, Jan. 7, 1985)
48 CFR 871.208 Rehabilitation facilities.
The provisions for payment of charges to rehabilitation facilities
for the rehabilitation services provided under Chapter 31 are paid in
the same manner as charges for educational and vocational services
through contract, agreement, or other arrangement.
48 CFR 871.209 Records and reports.
Contracts, agreements, or arrangements will provide for the number
and frequency of reports, adequate financial records to support payment
for each trainee and maintenance of attendance and progress records.
Such records will be preserved for a period of three years.
48 CFR 871.210 Correspondence courses.
Contracts with institutions for correspondence courses will provide
that:
(a) Major changes in courses or course material will not be binding
on the Department of Veterans Affairs until such time as a supplemental
agreement is negotiated to the contract.
(b) Minor changes in course or course material not affecting the
length of the course or number of lessons and not lowering the
educational value of the course or the quality of the course material
such as revision of text, the substitution of a newer lesson for an
older one, or the substitution of equipment of equal or greater value,
are permitted without supplemental agreements. Such minor changes and
revisions shall be placed on file with the contracting officer at the
time of the change or revision.
(c) Trainees be provided with prompt and adequate lesson service and,
unless otherwise specified in the contract, be furnished the same texts,
lessons service, diplomas, and other services as are normally provided
for regularly enrolled nonveteran students.
(d) All lessons be adequately serviced on an individual basis.
Grouping of lessons, into units or partial servicing does not meet this
requirement.
(e) Each lesson must have a separate examination adequate in terms of
lesson content.
(f) The training of persons under a Department of Veterans Affairs
contract or the fact that the United States is utilizing the facilities
of the institution for training veterans shall not be used in any way to
advertise the institution. References in the advertising media or
correspondence of the institution shall be limited to a list of courses
under Chapter 31, Title 38, United States Code, and shall not be
directed or pointed specifically to veterans.
(g) The rates, fees, and charges are not in excess of those charged
nonveterans.
(h) That payment will be made on a lesson completed basis in areas
for assignments sent in by trainees and serviced during a pay period as
established by the contract.
(i) Payment will be made only once for each lesson even through it is
necessary to service a lesson more than once.
48 CFR 871.211 Information concerning correspondence courses.
Specific questions on correspondence courses as to the content of
courses, academic credit, and entrance requirements for courses included
in Department of Veterans Affairs contracts may be directed to the
institutions offering the courses.
48 CFR 871.211 Subpart 871.3 -- Education Program (Reserved)
48 CFR 871.211 48 CFR Ch. 9 (10-1-91 Edition)
48 CFR 871.211 Department of Energy
48 CFR 871.211 CHAPTER 9 -- DEPARTMENT OF ENERGY
48 CFR 871.211 (Parts 900 to 999)
48 CFR 871.211 SUBCHAPTER A -- GENERAL
Part
Page
901 Federal Acquisition Regulations System
902 Definitions of words and terms
903 Improper business practices and personal conflicts of interest
904 Administrative matters
48 CFR 871.211
48 CFR 871.211 SUBCHAPTER B -- ACQUISITION PLANNING
905 Publicizing contract actions
906 Competition requirements
907 Acquisition planning
908 Required sources of supplies and services
909 Contractor qualifications
910 Specifications, standards, and other purchase descriptions
912 Contract delivery or performance
48 CFR 871.211
48 CFR 871.211 SUBCHAPTER C -- CONTRACTING METHODS AND CONTRACT TYPES
913 Small purchases and other simplified purchase procedures
914 Sealed bidding
915 Contracting by negotiation
916 Types of contracts
917 Special contracting methods
48 CFR 871.211
48 CFR 871.211 SUBCHAPTER D -- SOCIOECONOMIC PROGRAMS
919 Small business and small disadvantaged business concerns
920 Labor surplus area concerns
922 Application of labor laws to Government acquisition
923 Environment, conservation, and occupational safety
924 Protection of privacy and freedom of information
925 Foreign acquisition
48 CFR 871.211
48 CFR 871.211 SUBCHAPTER E -- GENERAL CONTRACTING REQUIREMENTS
927 Patents, data, and copyrights
928 Bonds and insurance
931 Contract cost principles and procedures
932 Contract financing
933 Protests, disputes and appeals
48 CFR 871.211
48 CFR 871.211 SUBCHAPTER F -- SPECIAL CATEGORIES OF CONTRACTING
935 Research and development contracting
936 Construction and architect-engineer contracts
937 Service contracting
48 CFR 871.211
48 CFR 871.211 SUBCHAPTER G -- CONTRACT MANAGEMENT
942 Contract administration
943 Contract modifications
944 Subcontracting policies and procedures
945 Government property
947 Transportation
949 Termination of contracts
950 Extraordinary contractual actions
951 Use of government sources by contractors
48 CFR 871.211
48 CFR 871.211 SUBCHAPTER H -- CLAUSES AND FORMS
952 Solicitation provisions and contract clauses
48 CFR 871.211
48 CFR 871.211 SUBCHAPTER I -- AGENCY SUPPLEMENTARY REGULATIONS
970 DOE management and operating contracts
971 Review and approval of contract actions
48 CFR 871.211
48 CFR 871.211 48 CFR Ch. 9 (10-1-91 Edition)
48 CFR 871.211 Department of Energy
48 CFR 871.211 SUBCHAPTER A -- GENERAL
48 CFR 871.211 PART 901 -- FEDERAL ACQUISITION REGULATIONS SYSTEM
48 CFR 871.211 Subpart 901.1 -- Purpose, Authority, Issuance
Sec.
901.101 Purpose.
901.102 Authority.
901.103 Applicability.
901.103-70 Exclusions.
901.104 Issuance.
901.104-1 Publication and code arrangement.
901.104-2 Arrangement of regulations.
901.104-3 Copies.
901.105 OMB control numbers.
48 CFR 871.211 Subpart 901.2 -- Administration
901.201-1 The two councils.
48 CFR 871.211 Subpart 901.3 -- Agency Acquisition Regulations
901.301 Policy.
901.301-70 Acquisition letters.
901.301-71 Amendment of regulation.
901.301-72 Other issuances related to acquisition.
901.303 Codification and public participation.
48 CFR 871.211 Subpart 901.4 -- Deviations From the FAR
901.402 Policy.
901.403 Individual deviations.
901.404 Class deviations.
48 CFR 871.211 Subpart 901.5 -- Agency and Public Participation
901.570 Rulemaking.
48 CFR 871.211 Subpart 901.6 -- Contracting Authority and
Responsibilities
901.601 General.
901.601-70 Responsibility of the Head of the Contracting Activity.
901.602-3 Ratification of unauthorized commitments.
901.603 Selection, appointment and termination of appointment.
901.603-1 General.
901.603-70 Modification of appointment.
901.603-71 Responsibility of other government personnel.
901.603-72 Contracting officer's representatives.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 11936, Mar. 28, 1984, unless otherwise noted.
48 CFR 871.211 Subpart 901.1 -- Purpose, Authority, Issuance
48 CFR 901.101 Purpose.
(a) This subpart establishes Chapter 9, the Department of Energy
Acquisition Regulation, within Title 48, the Federal Acquisition
Regulation System, of the Code of Federal Regulations. The short title
of this regulation shall be DEAR.
(b) The purpose of the DEAR is to implement the Federal Acquisition
Regulations (FAR) where further implementation is needed, and to
supplement the FAR when coverage is needed for subject matter not
covered in the FAR. The DEAR is not, by itself, a complete document as
it must be used in conjunction with the FAR. When a FAR Part or Subpart
is adequate for use without further DOE implementation, no mention is
cited in the DEAR. Therefore the order of use is (1) FAR; (2) DEAR.
48 CFR 901.102 Authority.
The DEAR and amendments thereto are issued by the Procurement
Executive pursuant to a delegation from the Secretary in accordance with
the authority of section 644 of the Department of Energy Organization
Act (42 U.S.C. 7254), section 205(c) of the Federal Property and
Administrative Services Act of 1949, as amended, (40 U.S.C. 486(c)), and
other applicable law.
(52 FR 38422, Oct. 16, 1987)
48 CFR 901.103 Applicability.
The FAR and DEAR apply to all DOE acquisitions of supplies and
services which obligate appropriated funds unless otherwise specified in
this regulation. These regulations shall be used as guides to the
extent practicable for acquisitions using non-appropriated funds.
48 CFR 901.103-70 Exclusions.
Certain DOE policies and procedures which might otherwise come within
the scope of this regulation may be excluded from the DEAR where there
is appropriate justification, such as:
(a) Subject matter which bears a security classification (See FAR
4.402).
(b) Subject matter which deals with assistance programs where the
award instruments are other than acquisition contracts and purchase
orders. The DOE financial assistance policies are codified separately
at Part 600 of Title 10 of the Code of Federal Regulations.
(c) Subject matter which deals with the Department's sales programs.
These matters are codified separately at various parts of Title 10 of
the Code of Federal Regulations.
(d) Subject matter which is procedural in nature and which is
internal to the operation of the Department. These matters are
contained in the DOE Directives System.
(e) Instructional or training material that more fully explains
matters covered in the FAR and DEAR.
(f) Subject matter which is procedural in nature and which is
internal to the operation of the Federal Energy Regulatory Commission
(FERC). These matters are contained in the FERC Directive System.
(49 FR 11936, Mar. 28, 1984, as amended at 50 FR 12182, Mar. 27,
1985)
901.104 Issuance.
48 CFR 901.104-1 Publication and code arrangement.
(a) The DEAR and its subsequent changes are published in (1) daily
issues of the Federal Register, (2) cumulative form of the Code of
Federal Regulations, generally updated on an annual basis, and (3) a
separate loose-leaf edition.
(b) The DEAR is issued as Chapter 9 of Title 48 of the Code of
Federal Regulations.
(49 FR 11936, Mar. 28, 1984, as amended at 56 FR 41964, Aug. 26,
1991)
48 CFR 901.104-2 Arrangement of regulations.
(a) General. The DEAR is divided into the same parts, subparts,
sections, subsections and paragraphs as is the FAR. However, when the
FAR coverage is adequate by itself, there will be no corresponding DEAR
part, subpart, etc.
(b) Numbering. Where the DEAR implements the FAR, the implementing
part, subpart, section or subsection of the DEAR will be numbered and
captioned, to the extent feasible, the same as the FAR part, subpart,
section or subsection being implemented except that the implementation
will be preceded with a 9 or a 90 such that there will always be three
numbers to the left of the decimal. For example, the DEAR
implementation of FAR 1.104-1 is shown as 901.104-1 and the DEAR
implementation of FAR 24.1 is shown as 924.1. Material which supplements
the FAR will be assigned the numbers 70 and up. For example, by
statute, DOE requires a more comprehensive organizational conflicts of
interest review than is contemplated by FAR 9.5. This supplementary
material is identified as 909.570.
(c) References and citations. (2) This regulation may be referred to
as the Department of Energy Acquisition Regulation or the DEAR.
(3) References to FAR materials within this regulation will include
FAR and the identifying number, for example, FAR 1.104-2(c)(3).
References to DEAR materials within this regulation will simply cite the
identifying number, for example, 901.104-2(c)(3).
48 CFR 901.104-3 Copies.
(a) Copies of the DEAR published in the Federal Register or Code of
Federal Regulations may be purchased from the Superintendent of
Documents, Government Printing Office, Washington, DC 20402. Requests
should reference the DEAR as Chapter 9 of Title 48. The Code of Federal
Regulations is printed in paperback edition and updated annually.
Requests for the CFR version of the DEAR should reference Chapter 9 of
Title 48.
(b) Loose-leaf copies of the DEAR are distributed within DOE in
accordance with a distribution list maintained by the Policy Office in
the Procurement and Assistance Management Directorate, Headquarters.
48 CFR 901.105 OMB control numbers.
The Paperwork Reduction Act of 1980, Pub. L. 98-511, and the Office
of Management and Budget's implementing regulations at 5 CFR Part 1320,
require that reporting and recordkeeping requirements affecting 10 or
more members of the public be cleared by that Office. Shown below are
DEAR citations containing such requirements and their control numbers.
(49 FR 11936, Mar. 28, 1984, as amended at 56 FR 41964, Aug. 26,
1991)
48 CFR 901.105 Subpart 901.2 -- Administration
48 CFR 901.201-1 The two councils.
(b) The DOE representative to the Civilian Agency Acquisition Council
will be a staff member of the Policy Office, Procurement and Assistance
Management Directorate, Headquarters, appointed for that purpose by the
Procurement Executive.
(d) The Policy Office will be responsible for coordination with all
interested Departmental elements regarding proposed FAR revisions and
advocating revisions sought by DOE.
48 CFR 901.201-1 Subpart 901.3 -- Agency Acquisition Regulations
48 CFR 901.301 Policy.
(a) Acquisition policies and procedures will be issued in the DEAR by
the Procurement Executive after appropriate coordination with other
officials.
(b) Implementing procedures, instructions, and guides which are
necessary to clarify or to implement the DEAR within DOE may be issued
by the Heads of the Contracting Activities. Contracting activities have
the authority to establish the review and approval levels for various
acquisition actions, within their respective organizations, up to the
dollar authority level delegated to that organization by the Procurement
Executive provided the implementing procedures, instructions and guides:
(1) Are consistent with the policies and procedures contained in this
regulation as implemented and supplemented from time to time;
(2) Follow the format, arrangement, and numbering system of this
regulation; to the extent practicable, and
(3) Contain no material which duplicates, paraphrases, or is
inconsistent with the contents of this regulation.
48 CFR 901.301-70 Acquisition letters.
From time to time the Procurement Executive may, after coordination
with the General Counsel, issue advisory Acquisition Letters to furnish
interim guidance to contracting activities.
48 CFR 901.301-71 Amendment of regulation.
This regulation may be amended from time to time by the Procurement
Executive with appropriate concurrences from other officials (e.g,
Counsel, and any other appropriate Headquarters offices) in accordance
with 901.570.
48 CFR 901.301-72 Other issuances related to acquisition.
In addition to the FAR and DEAR, there are other issuances which deal
with acquisition. Among these are the Federal Property Management
Regulations, the DOE Property Management Regulations, and DOE
Directives.
(a) The Federal Property Management Regulations, FPMR, are published
by the General Services Administration to guide and govern the Federal
agencies in matters pertaining to the management of property and records
and other programs and activities of the type administered by GSA. The
FPMRs are codified as Chapter 101 of Title 41 of the Code of Federal
Regulations.
(b) The DOE Property Management Regulations, DOE-PMR, implement and
supplement the FPMR regarding the utilization, management and
disposition of personal property. The DOE-PMRs are codified as Chapter
109 of Title 41 of the Code of Federal Regulations.
(c) The DOE Directives System contains the policies and procedures
governing the internal operation of the Department. Because of the need
to involve the public through the rulemaking process of the
Administrative Procedure Act, as explained at 901.5, such policies and
procedures as may directly affect contractors or the general public will
be published in the DEAR following the rulemaking procedures established
by the Administrative Procedure Act and the DOE Organization Act, Pub.
L. 95-91. Policies and procedures which are generally of interest to or
used only by DOE personnel will be published in the DOE Directives
System.
48 CFR 901.303 Codification and public participation.
(a) The DEAR is codified as Chapter 9 of Title 48 of the Code of
Federal Regulations.
(b) Procedures for public participation are described at 901.5.
48 CFR 901.303 Subpart 901.4 -- Deviations From the FAR
48 CFR 901.402 Policy.
(a) Requests for authority to deviate from the provisions of the FAR
or the DEAR shall be submitted in writing as far in advance as the
exigencies of the situation will permit. Each request for deviation
shall contain the following:
(1) A statement of the deviation desired, including identification of
the specific paragraph number(s) of the FAR or DEAR;
(2) The reason why the deviation is considered necessary or would be
in the best interest of the Government;
(3) If applicable, the name of the contractor and identification of
the contract affected;
(4) A statement as to whether the deviation has been requested
previously and, if so, circumstances of the previous request;
(5) A description of the intended effect of the deviation;
(6) A statement of the period of time for which the deviation is
needed; and
(7) Any pertinent background information which will contribute to a
full understanding of the desired deviation.
48 CFR 901.403 Individual deviations.
In individual cases, deviations from either the FAR or the DEAR will
be authorized only when essential to effect a necessary acquisition or
where special circumstances make such deviations clearly in the best
interest of the Government. Heads of Contracting Activities (HCAs) or
designees are authorized to approve deviations from the DEAR, except for
cost principles, in individual cases within their delegated dollar
authority, after coordination with Counsel and such other DOE personnel
as required. No deviations from the FAR may be authorized at the local
level. A copy of each deviation and its supporting documentation shall
be provided to the Procurement Executive. Deviations, either in excess
of an HCA's delegated dollar authority or involving the cost principles
contained in Part 931, or any FAR deviation, shall not be made unless
such action is authorized by the Procurement Executive after
consultation with General Counsel and any other appropriate Headquarters
office, on the basis of a written justification stating clearly the
special circumstances involved. For deviations from policies and
procedures or clauses involving patents, data and copyrights, the
concurrence of the Assistant General Counsel for Patents shall be
obtained as provided in Part 927.
48 CFR 901.404 Class deviations.
Where deviations from the FAR, or DEAR in classes of contracts, are
considered necessary, requests for authority to deviate shall be
submitted in writing to the Procurement Executive who will, after
appropriate coordination with other officials (e.g., Counsel, and such
other DOE personnel as required), consider the submission, and in the
case of FAR deviations, consider the submission jointly with the
Chairperson of the Civilian Agency Acquisition Council as appropriate.
Class deviations to the FAR or the DEAR involving patents, data, and
copyrights shall be forwarded to the Procurement Executive,
Headquarters, via the Assistant General Counsel for Patents. Where
circumstances preclude obtaining prior concurrence of the Chairperson of
the Civilian Agency Acquisition Council, the Procurement Executive may
authorize the deviation and subsequently inform the Chairperson of the
Civilian Agency Acquisition Council of the deviation including the
circumstances under which it was required.
48 CFR 901.404 Subpart 901.5 -- Agency and Public Participation
48 CFR 901.570 Rulemaking.
(a) Section 553(a)(2) of the Administrative Procedure Act (5 U.S.C.
553), provides an exception from the standard public rulemaking
procedures to the extent that the rule involves a matter related to
agency management or personnel or to public property, loans, grants,
benefits or contracts. OFPP Policy Letter 83-2 requires rulemaking for
substantive acquisition rules but allows significant discretion in the
matter. However, notwithstanding either of these, section 501(b)(3) of
the Department of Energy Organization Act, Pub. L. 95-91, 91 Stat.
565 (42 U.S.C. 7191(b)(3)), provides that the exception shall not be
available with respect to public property, loans, grants, or contracts
within DOE. Accordingly, DEAR has been promulgated and may be revised
from time to time in accordance with the rulemaking procedures of the
Administrative Procedure Act and the DOE Organization Act. This
procedure generally involves issuing a notice of proposed rulemaking
inviting public comment, review and analysis of comments received, and
publication of a final rule. The final rule includes a discussion of
the public comments received and describes actions taken as a result of
the comments.
(b) All acquisition rulemakings will be done either by or with the
concurrence of the Policy Office, Procurement and Assistance Management
Directorate, Headquarters and authorized for issuance by the Procurement
Executive or his or her Deputy.
48 CFR 901.570 Subpart 901.6 -- Contracting Authority and Responsibilities
48 CFR 901.601 General.
Contracting authority vests in the Secretary of Energy. The
Secretary has delegated this authority to the Procurement Executive.
The Procurement Executive has redelegated this authority to the Heads of
the Contracting Activities. These delegations are formal written
delegations containing dollar limitations and conditions. Each HCA in
turn makes formal contracting officer appointments within the
contracting activity.
48 CFR 901.601-70 Responsibility of the Head of the Contracting
Activity.
The Head of the Contracting Activity, as defined at FAR 2.1 as
supplemented by 902.100 of this regulation, is responsible for the
conduct of an effective and efficient acquisition program. Adequate
controls shall be established to assure compliance with applicable laws,
regulations, procedures, and the dictates of good management practices.
Periodic reviews shall be conducted by qualified personnel, preferably
assigned to positions other than in the particular acquisition office or
portion thereof being reviewed, to determine the extent of adherence to
prescribed policies, regulations, and good management practices, and to
identify any needs for improvement, guidance and/or training.
48 CFR 901.602-3 Ratification of unauthorized commitments.
(b) (2) The Procurement Executive is authorized to ratify an
unauthorized commitment.
(3) The ratification authority of the Procurement Executive in
subparagraph (b)(2) of this section is delegated to the Heads of
Contracting Activities (HCAs) for individual unauthorized commitments
$25,000 or under. The ratification authority of the HCA is
nondelegable.
(c) Limitations.
(7) Procedures. The following procedures shall be followed for
ratification of unauthorized commitments:
(i) Whenever it is discovered that any person is performing or has
performed work as a result of an unauthorized commitment, the
Contracting Officer shall advise that person that the work is
unauthorized and performance is at the person's own risk.
(ii) The Government representative who made the unauthorized
commitment shall furnish the contracting officer, through the Director
of the cognizant Program Office at the contracting activity, or
comparable official, all records and documents concerning the commitment
and a complete, written statement of facts, including, but not limited
to, a statement as to why authorized procurement procedures were not
used, why the contractor was selected, a list of other sources
considered, description of work to be performed or products to be
funished, estimated or agreed upon contract price, citation of
appropriation available, a statement as to whether the contractor has
commenced performance and status of work. To preclude recurrence, the
Director of the Program Office will include in the package
recommendations for corrective action. If the Government representative
who made the unauthorized commitment is no longer available, appropriate
program personnel shall provide the information described in this
paragraph to the contracting officer, along with the name of the
employee who made the commitment.
(iii) The contracting officer shall evaluate this information, make a
determination with respect to reasonableness of price and recommend
whether payment should be made (see FAR 1.602-3(c)), and forward the
documentation to the HCA.
(iv) For individual unauthorized commitments $25,000 or less, local
procedures may require legal counsel concurrence, but such concurrence
is not a requirement of this subsection. The HCA is responsible for
assuring the implementation and monitoring of a corrective action plan.
A copy of each ratification action by an HCA, along with supporting
documentation, shall be provided to the Director, Business Clearance
Division, MA-441, Headquarters.
(v) For individual unauthorized commitments involving amounts in
excess of $25,000, the HCA or designee will evaluate the information
assembled pursuant to subsection 901.602-3(c)(7)(ii) above, including
the corrective action plan, and, if the HCA concurs, forward the package
with HCA concurrence to the Procurement Executive.
(vi) The Procurement Executive may ratify the unauthorized commitment
after coordinating with the Office of General Counsel and, when deemed
necessary, obtaining the concurrence of the Senior Program Official.
The Procurement Executive or designee shall monitor the implementation
of the corrective action plan.
(vii) If the Procurement Executive does not ratify the action, the
file will be returned to the HCA with an explanation of the decision not
to ratify.
(viii) If an unauthorized commitment is ratified, the supporting
documentation will be included as part of the official contract file.
If an unauthorized commitment is not ratified, the documentation will be
maintained for audit purposes as a separate file by the cognizant
contracting office.
(54 FR 27645, June 30, 1989)
48 CFR 901.603 Selection, appointment and termination of appointment.
48 CFR 901.603-1 General.
The DOE system for the selection, appointment, and termination of
appointment of contracting officers is established in DOE Order 4200.4,
Selection, Appointment, and Termination of Contracting Officers.
48 CFR 901.603-70 Modification of appointment.
To modify a contracting officer's authority, the existing certificate
of appointment shall be revoked and a new certificate of appointment
issued.
(56 FR 41964, Aug. 26, 1991)
48 CFR 901.603-71 Responsibility of other Government personnel.
(a) Responsibility for the decision of what to buy and when to buy
rests with program and certain staff offices and the head of the agency
or designee. Responsibility for determining how to buy, the conduct of
the buying process, and execution of the contract rests with the
contracting activity, the contracting officer in particular.
(b) Personnel not delegated contracting authority may not commit the
Government, formally or informally, to any type of contractual
obligation. However, program personnel who must use the contracting
process to accomplish their programs, must support the contracting
officer in ensuring that:
(1) Requirements are clearly defined and specified;
(2) Competitive sources are solicited, evaluated, and selected;
(3) Quality standards are prescribed and met;
(4) Performance or delivery is timely;
(5) Prices, estimated costs, and fees are reasonable; and
(6) Files are documented to substantiate the judgments, decisions,
and actions taken.
(49 FR 11936, Mar. 28, 1984. Redesignated at 54 FR 27645, June 30,
1989)
48 CFR 901.603-72 Contracting officer's representatives.
(a) A contracting officer may designate other Government personnel to
act as authorized representatives for such functions as technical
monitoring, inspection, approval of shop drawings, testing, approval of
samples, and other functions of a technical natural not involving a
change in the scope, price, terms or conditions of the contract or
order. Such designation shall be in writing and shall contain specific
instructions as to extent to which the representative may take action
for the contacting officer, but will hot contain authority to sign
contract documents. The responsibilities and limitations of the
contracting officer's representatives may be set forth in the contract
or in a separate letter, a copy of which shall be furnished to the
contractor.
(b) A person assigned to and performing primary duty within a
contracting office, and who is under the supervision of a contracting
officer, does not require designation as a representative to perform
assigned duties. The contracting officer cannot authorize subordinates
to sign any contract document or letter where the signature of a
contracting officer is required.
(49 FR 11936, Mar. 28, 1984. Redesignated at 54 FR 27645, June 30,
1989)
48 CFR 901.603-72 PART 902 -- DEFINITIONS OF WORDS AND TERMS
48 CFR 901.603-72 Subpart 902.1 -- Definitions
Sec.
902.101 Definitions.
48 CFR 901.603-72 Subpart 902.2 -- Definitions Clause
902.200 Definitions clause.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
48 CFR 901.603-72 Subpart 902.1 -- Definitions
48 CFR 902.101 Definitions.
The following definitions are in addition to those stated in FAR 2.1.
Acquisition Executive, as that term is defined in OMB Circular A-109,
means the Assistant Secretary, Management and Administration. The
Acquisition Executive, as contrasted to the Procurement Executive, is
involved in monitoring the development of major systems and the review
of their progress as they evolve through the major systems acquisition
process. Details regarding internal major system acquisition procedures
may be found in the DOE Directives.
Contracting Activity means a DOE organizational element which has
authority to award contracts.
Head of the Agency means the Secretary, Deputy Secretary, or Under
Secretary and, for acquisitions by the Federal Energy Regulatory
Commission, the Chairman, Federal Energy Regulatory Commission.
Head of the Contracting Activity (HCA) means, in addition to the
element specified in the FAR, a DOE Official who has met the following
requirements: first, has been delegated authority to award contracts
and appoint contracting officers by the Procurement Executive; and
second, has been designated as an HCA. A partial listing of the duties
specifically reserved to the HCA or designee includes:
(a) Authority to establish review and approval levels for contract
actions within the organization, up to the dollar level delegated.
(b) Authority to approve deviations from the DEAR in accordance with
901.403.
(c) Authority to appoint contracting officers.
(d) Authority to make administrative determinations regarding
withdrawals of bids before award in mistake-in-bid cases.
Procurement Executive means the individual appointed as such by the
Head of the Agency pursuant to Executive Order 12352. The Director,
Procurement and Assistance Management Directorate, has been appointed as
the DOE Procurement Executive except for the activities of the Federal
Energy Regulatory Commission (FERC). The Executive Director, FERC,
functions as the Procurement Executive with respect to FERC acquisition
activities. The FERC Procurement Executive's responsibilities are those
described at paragraphs (a), (b), (c), (d), (f), (g), (h), (i) and (j)
of this section. Duties of the Procurement Executive include:
(a) Prescribe and publish agency acquisition policies, regulations
and procedures;
(b) Enter into, make determinations and decisions and take other
actions, consistent with appropriate policies, regulations and
procedures with respect to purchases, contracts, leases, sales
agreements and other transactions, except those required by law or
regulation to be made by other authority;
(c) Designate contracting officers and representatives thereof;
(d) Establish clear lines of contracting authority;
(e) Exercise priorities authority on behalf of the agency, in
accordance with the provisions of the Defense Production Act of 1950 (50
U.S.C. App. 2071, et seq.), Defense Priorities and Allocations System
Delegation 2, dated June 21, 1984, and applicable policies and
regulations; and the Energy Conservation and Policy Act, Pub. L.
94-164.;
(f) Evaluate and monitor the agency's acquisition system performance;
(g) Manage and enhance career development of the acquisition work
force;
(h) Examine, in coordination with the OFPP, the acquisition system to
determine specific areas where Government-wide performance standards
should be established and applied and participate in the development of
Government-wide acquisition policies, regulations and standards;
(i) Determine areas for agency unique standards and develop unique
agency-wide standards;
(j) Appoint advocates for competition; and
(k) Certify to the agency head that the acquisition system meets
approved standards.
Senior Procurement Executive as defined at FAR Subpart 2.1 is
synonymous with the term ''Procurement Executive'' used in this chapter.
Senior Program Official is any of the individuals appointed as
Secretarial Officers or Directors of DOE staff offices. (See DOE
1325.1A.)
(49 FR 11940, Mar. 28, 1984; 49 FR 38949, Oct. 2, 1984, as amended
at 50 FR 12182, Mar. 27, 1985; 52 FR 38422, Oct. 16, 1987)
48 CFR 902.101 Subpart 902.2 -- Definitions Clause
48 CFR 902.200 Definitions clause.
As prescribed by FAR Subpart 2.2, insert the clause at FAR 52.202-1,
Definitions, but modify it to limit the definition, at paragraph (a) of
the clause, to encompass only the Secretary, Deputy Secretary, or Under
Secretary of the Department of Energy and the Chairman, Federal Energy
Regulatory Commission. The contracting officer shall also add a
paragraph (d) (or (c) in case Alternate I is used), which defines
''DOE'' as meaning the United States Department of Energy and ''FERC''
as meaning the Federal Energy Regulatory Commission.
(50 FR 12183, Mar. 27, 1985)
48 CFR 902.200 PART 903 -- IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
48 CFR 902.200 Subpart 903.1 -- Safeguards
Sec.
903.101 Standards of conduct.
903.101-3 Agency regulations.
48 CFR 902.200 Subpart 903.2 -- Contractor Gratuities to Government
Personnel
903.203 Reporting suspected violations of the Gratuities clause.
903.204 Treatment of violations.
48 CFR 902.200 Subpart 903.3 -- Reports of Suspected Antitrust
Violations
903.303 Reporting suspected antitrust violations.
48 CFR 902.200 Subpart 903.4 -- Contingent Fees
903.408-1 Responsibilities.
48 CFR 902.200 Subpart 903.5 -- Other Improper Business Practices
903.502 Subcontractor kickbacks.
48 CFR 902.200 Subpart 903.6 -- Contracts With Government Employees or
Organizations Owned or Controlled by Them
903.603 Responsibilities of the contracting officer.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 11940, Mar. 28, 1984, unless otherwise noted.
48 CFR 902.200 Subpart 903.1 -- Safeguards
903.101 Standards of conduct.
48 CFR 903.101-3 Agency regulations.
Detailed rules applicable to the conduct of DOE employees are set
forth in 10 CFR Part 1010. To ensure that contracting personnel are
informed of the high standards to be met and that they maintain current
knowledge of the standards of conduct, all contracting activities shall
maintain a ''Standards of Conduct Notebook for Acquisition and
Assistance Personnel.'' The notebook will contain a copy of 10 CFR Part
1010 and any other DOE or local directives on standards of conduct. All
contracting personnel and their supporting personnel shall certify they
have read and understand the contents of the notebook by signing a
certificate to that effect. This shall be done at least annually.
48 CFR 903.101-3 Subpart 903.2 -- Contractor Gratuities to Government Personnel
48 CFR 903.203 Reporting suspected violations of the Gratuities clause.
(a) Suspected violations of the Gratuities clause shall be reported
to the Head of the Contracting Activity (HCA) in writing detailing the
circumstances. The HCA will evaluate the report and if the allegations
appear to support a violation the matter will be referred to the
Procurement Executive for disposition.
48 CFR 903.204 Treatment of violations.
Apparent violations will be processed in accordance with the
debarment and suspension rules set forth at Title 10, Part 1035, of the
Code of Federal Regulations.
48 CFR 903.204 Subpart 903.3 -- Reports of Suspected Antitrust Violations
48 CFR 903.303 Reporting suspected antitrust violations.
(a) Potential anti-competitive practices, such as described in FAR
3.301, and antitrust law violations as described in FAR 3.303, evidenced
in bids or proposals, shall be reported to the Office of General Counsel
through the Head of the Contracting Activity with a copy to the
Procurement Executive. The Office of General Counsel will provide
reports to the Attorney General as appropriate.
(50 FR 12183, Mar. 27, 1985)
48 CFR 903.303 Subpart 903.4 -- Contingent Fees
48 CFR 903.408-1 Responsibilities.
(b) Each Standard Form 119 completed in connection with a DOE
contract, together with other relevant information, shall be reviewed by
Counsel prior to the initiation of appropriate action.
48 CFR 903.408-1 Subpart 903.5 -- Other Improper Business Practices
48 CFR 903.502 Subcontractor kickbacks.
(b) Contracting officers shall report suspected violations of the
Anti-Kickback Act through the Head of the Contracting Activity, or
designee, to the Office of General Counsel.
48 CFR 903.502 Subpart 903.6 -- Contracts With Government Employees or Organizations Owned or Controlled by Them
48 CFR 903.603 Responsibilities of the contracting officer.
(a) When the needs of the Government cannot be reasonably supplied by
sources other than employees of the Government or sources which are
substantially owned or controlled by Government employees, the
contracting officer shall submit, through the HCA, a request to the
Procurement Executive, with appropriate justification, for approval of
an exception to the prohibitions contained in FAR 3.601.
48 CFR 903.603 PART 904 -- ADMINISTRATIVE MATTERS
48 CFR 903.603 Subpart 904.4 -- Safeguarding Classified Information
Within Industry
Sec.
904.401 Definitions.
904.402 General.
904.403 Responsibilities of contracting officers.
904.404 Contract clause.
48 CFR 903.603 Subpart 904.6 -- Contract Reporting
904.601 Federal procurement data system.
904.601-70 Procurement and Assistance Data System (PADS).
904.601-71 Uniform Reporting System.
48 CFR 903.603 Subpart 904.7 -- Contractor Records Retention
904.702 Applicability.
48 CFR 903.603 Subpart 904.8 -- Contract Files
904.803 Contents of contract files.
904.804-1 Close out by the office administering the contract.
904.805 Disposal of contract files.
48 CFR 903.603 Subpart 904.70 -- Foreign Ownership, Control, or
Influence Over Contractors
904.7000 Purpose.
904.7001 Applicability.
904.7002 Definitions.
904.7003 Disclosure of foreign ownership, control, or influence.
904.7004 Findings, determination, and contract award or termination.
904.7005 Solicitation provision and contract clause.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 11941, Mar. 28, 1984, unless otherwise noted.
48 CFR 903.603 Subpart 904.4 -- Safeguarding Classified Information Within Industry
48 CFR 904.401 Definitions.
Classified Information means any information or material that is
owned by, produced by or for, or is under the control of the United
States Government, and determined pursuant to provisions of Executive
Order 12356, April 2, 1982 (47 FR 14874, April 6, 1982), or prior
orders, or as authorized under the Atomic Energy Act of 1954, as
amended, to require protection against unauthorized disclosure, and is
so designated.
Restricted Data means data which is defined in section II, of the
Atomic Energy Act of 1954, as amended, as ''all data concerning: (1)
Design, manufacture, or utilization of atomic weapons; (2) the
production of special nuclear material; or (3) the use of special
nuclear material in the production of energy, but shall not include data
declassified or removed from the Restricted Data category pursuant to
section 142.''
48 CFR 904.402 General.
(a) The basis of DOE's security requirements is the Atomic Energy Act
of 1954, as amended.
(b) DOE security regulations. DOE regulations concerning national
security information are codified at 10 CFR Part 1045. Supplemental
material is found in the DOE Directives. Foreign ownership, control, or
influence over contractors as it relates to security is discussed at
904.70.
(c) Special requirements regarding foreign release. Statutory
requirements to be observed in connection with the release of Restricted
Data to foreign governments are contained in the Atomic Energy Act of
1954, sections 141 and 144.
(d) Prohibition against the dissemination of certain unclassified
information. Section 148 of the Atomic Energy Act (42 U.S.C. 2168)
prohibits the unauthorized dissemination of unclassified nuclear
information with respect to the atomic energy defense programs
pertaining to:
(1) The design of production facilities or utilization facilities;
(2) Security measures (including security plans, procedures, and
equipment) for the physical protection of: (i) Production or
utilization facilities, (ii) nuclear material contained in such
facilities, or (iii) nuclear material in transit; or
(3) The design, manufacture, or utilization of any atomic weapon or
component if the design, manufacture, or utilization of such weapon or
component was contained in any information declassified or removed from
the Restricted Data category pursuant to section 142 of the Atomic
Energy Act.
(k) Further information on this subject may be found at 10 CFR Part
710.
48 CFR 904.403 Responsibilities of contracting officers.
(a) Presolicitation Phase. If access to Restricted Data may be
required, security clearances shall be obtained as noted in DOE Order
5631.2.
(c) Award Phase. Contracts which may require the processing or
storage of Restricted Data or Special Nuclear Material require
application of the provisions of DOE Orders 5634.1; 5635.1; and
5632.2. DOE regulations relating to the protection of Restricted Data
may also be found under 10 CFR Part 1016.
48 CFR 904.404 Contract clause.
(d) The security clauses to be used in DOE contracts are found at
952.204. They are:
(1) Security, 952.204-2. This clause is required in contracts under
section 31 (research assistance) or 41 (ownership and operation of
production facilities) of the Atomic Energy Act of 1954, as amended, and
in other contracts and subcontracts, the performance of which involves
or is likely to involve classified information. The DOE system is
separate from that of the Department of Defense and the DEAR clause
shall be used instead of that at FAR 52.204-2.
(2) Classification, 952.204-70. This clause is to be used in all
contracts which involve classified information.
(3) Sensitive foreign nation controls, 952.204-71. This clause is
required in unclassified research contracts which may involve making
unclassified information about nuclear technology available to certain
sensitive foreign nations. The contractor shall be provided at the time
of award the listing of nations included in DOE 1240.2, Attachment 4,
and any subsequent changes. (The attachment referred to in the clause
shall set forth the applicable requirements of the DOE regulations on
dissemination of unclassified published and unpublished technical
information to foreign nations.)
(4) Disclosure of information, 952.204-72. This clause should be used
in place of the clauses entitled ''Security'' and ''Classification'' in
contracts with educational institutions for research work performed in
their own institute facilities that are not likely to produce classified
information.
(49 FR 11941, Mar. 28, 1984; 49 FR 38949, Oct. 2, 1984, as amended
at 54 FR 27646, June 30, 1989)
48 CFR 904.404 Subpart 904.6 -- Contract Reporting
48 CFR 904.601 Federal procurement data system.
(c) DOE's data collection point is the Office of Procurement
Information/Property, Headquarters. The Office of Program Management is
responsible for data collection and reporting by the Federal Energy
Regulatory Commission.
(50 FR 12183, Mar. 27, 1985, as amended at 56 FR 41964, Aug. 26,
1991)
48 CFR 904.601-70 Procurement and Assistance Data System (PADS).
(a) The Procurement and Assistance Data System (PADS) is the
Department of Energy's system for collection of Federal Procurement Data
System (FPDS) data.
(b) DOE Order 1331.1A, entitled ''Requirements and Procedures for the
Procurement and Assistance Data System,'' requires that all data be
entered into PADS within five (5) working days after the award or
receipt of a subcontracting report in the following manner:
(1) Contracting activities shall report the information required by
this subpart for new awards and modifications.
(2) For each prime contract action over the small purchase limit,
contracting officers shall complete an Individual Procurement Action
Report (IPAR), DOE F 4200.40, and submit it to their data entry point
for input to the PADS system. Detailed information on completing IPAR
forms is contained in the publication entitled ''Handbook for
Preparation of Individual Procurement Action Reports.'' A copy of each
completed IPAR form shall be inserted in the pertinent contract file.
(3) Prime contract awards below the small purchase limit shall be
reported either:
(i) Individually, by completion and submission of an IPAR; or
(ii) On a summary basis, by completion and submission of Standard
Form 281, FPDS -- Summary of Contract Actions of $10,000 or less.
Summary reports shall be submitted within 15 calendar days after the end
of each Federal fiscal quarter.
(4) Contracting officers shall assure that contractors whose
contracts include the Small and Small Disadvantaged Business
Subcontracting Plan clause, FAR 52.219-9, submit the required reports on
Standard Form 294.
(49 FR 11941, Mar. 28, 1984; 49 FR 38949, Oct. 2, 1984, as amended
at 50 FR 12183, Mar. 27, 1985; 52 FR 38422, Oct. 16, 1987)
48 CFR 904.601-71 Uniform Reporting System.
(a) The Uniform Reporting System (URS) is the Department of Energy's
system for collection of uniform, timely, and valid information on cost,
schedule, and technical performance of contracts and financial
incentives (e.g., loan guarantee) arrangements. This subsection applies
only to DOE contracts.
(b) The current version of DOE 1332.1A, Uniform Reporting System, of
October 15, 1985 (Order) establishes the Uniform Reporting System. With
the exception of special research contracts and management and operating
contracts, this subsection requires that this Order, or any later
version of the Order in effect on the effective date of the contract, be
applied, as appropriate, to all DOE contracts, including inter-agency
agreements for work for DOE. This subsection and the Order do not apply
to special research contracts for which reporting requirements are
prescribed in DEAR 917.7109 and 917.7113. In the case of management and
operating contracts, see DEAR 970.0406 regarding application of the URS.
Application of the URS to subcontractors is a matter for agreement
between the prime contractor and the subcontractor based on the degree
to which URS plans and reports are needed by the prime to fulfill the
requirements of the prime contract.
(c) DOE 1332.1A provides a compendium of standard reports,
procedures, and terminology from which a program or project manager
selects those applicable to a specific contractual effort. Reporting
requested from contractors or subcontractors shall in all cases be
limited to only that information which is essential for effective
management control. To apply this Order to a contract the contracting
officer shall include the clause at DEAR 952.212-72 in the contract.
DOE specifies which management planning and status reporting
requirements pertain to a contract by use of DOE Form 1332.1, Reporting
Requirements Checklist, which is included in each solicitation and
contractual agreement.
(52 FR 28717, Aug. 3, 1987)
48 CFR 904.601-71 Subpart 904.7 -- Contractor Records Retention
48 CFR 904.702 Applicability.
(b) Contracts containing the Safety and Health clause at 952.223-71,
the Radiation Protection and Nuclear Criticality clause at 952.223-72,
or the Nuclear Safety clause at 952.223-74 must also include the
Preservation of Individual Occupational Radiation Exposure Records
clause at 952.223-75 which will necessitate retention of records in
accordance with schedules contained in Chapter V of DOE Order 1324.2,
and any pertinent superseding provisions, rather than those found at FAR
4.7. These schedules are required by DOE, pursuant to an agreement with
the General Accounting Office, in situations where prudence dictates
longer retention periods for records involving employee health matters.
48 CFR 904.702 Subpart 904.8 -- Contract Files
48 CFR 904.803 Contents of contract files.
(a) (29) The record copy of the Individual Procurement Action Report
shall be included in the file section containing procurement management
reports.
48 CFR 904.804-1 Closeout by the office administering the contract.
(a) The Head of the Contracting Activity shall ensure that necessary
procedures and milestone schedules are established to meet the
requirements of FAR 4.804-1, and that resources are applied to effect
the earliest practicable deobligation of excess funds and the timely
closeout of all contract files which are physically completed or
otherwise eligible for closeout action.
(b) Quick closeout procedures for cost reimbursable and other than
firm fixed price type contracts are covered under 942.708.
48 CFR 904.805 Disposal of contract files.
Contract files shall be disposed of in accordance with applicable DOE
Order 1324.2.
48 CFR 904.805 Subpart 904.70 -- Foreign Ownership, Control, or Influence Over Contractors
48 CFR 904.7000 Purpose.
This subpart sets forth the Department of Energy policies and
procedures regarding foreign ownership, control, or influence (FOCI)
over contractors. The procedures are designed to protect against an
undue risk to the common defense and security which may result if
classified information or special nuclear material is made available to
DOE contractors or subcontractors who are owned, controlled, or
influenced by foreign governments, individuals, or organizations. The
procedures require certain offerors/ bidders and
contractors/subcontractors to submit information which will help DOE to
determine whether award of a contract to a firm, or continued
performance of a contract by a firm, may pose an undue risk to the
common defense and security because of FOCI over the offeror/bidder or
contractor/subcontractor.
48 CFR 904.7001 Applicability.
The provisions of this subpart shall apply to all offerors/bidders,
contractors, and subcontractors who will or do have access to classified
information or a significant quantity of special nuclear material as
defined in 10 CFR Part 710. In this subpart, the term ''contractor''
shall also mean subcontractor at any tier, the term ''contract'' shall
also mean subcontract at any tier, and the term ''special nuclear
material'' shall also mean significant quantity of special nuclear
material as defined in 10 CFR Part 710.
48 CFR 904.7002 Definitions.
Foreign interest means any of the following:
(1) Foreign government or foreign government agency or
instrumentality thereof;
(2) Any form of business enterprise organized under the laws of any
country other than the United States or its possessions;
(3) Any form of business enterprise organized or incorporated under
the laws of the U.S., or a State or other jurisdiction within the U.S.
which is owned, controlled, or influenced by a foreign government,
agency, firm, corporation, or person, or
(4) Any person who is not a U.S. citizen.
Foreign ownership, control, or influence means the situation where
the degree of ownership, control, or influence over an offeror/bidder or
a contractor by a foreign interest is such that a reasonable basis
exists for concluding that compromise of classified information or
special nuclear material may possibly result.
Contracting Officer means the DOE contracting officer.
48 CFR 904.7003 Disclosure of foreign ownership, control, or influence.
(a) If a contract requires a contractor to have access to classified
information or a significant quantity of special nuclear material, the
DOE must determine whether access to the information or material by a
contractor who is or may be subject to FOCI may pose an undue risk to
the common defense and security before a contract can be awarded.
(b) If during the performance of a contract, the contractor comes
under FOCI, then the DOE must determine whether any further access to
the classified information or special nuclear material may pose an undue
risk to the common defense and security through the possible compromise
of that information or material. If the DOE determines that such a
threat or potential threat exists, the contracting officer shall
consider the alternatives of negotiating an acceptable method of
isolating the foreign interest which owns, controls, or influences the
contractor or terminating the contract.
(c) It is essential for the DOE to obtain information about FOCI
which is sufficient to help the Department determine whether award of a
contract to a person or firm, or the continued performance of a contract
by a person or firm, may pose undue risk to the common defense and
security. Therefore, the provision specified at 952.204-73 shall be
included in solicitations that involve offerors/bidders or contractors
that are subject to 904.7001.
(d) The contracting officer shall not award or extend any contract
subject to this subpart, exercise any options under a contract, modify
any contracts subject to this subpart, or approve or consent to a
subcontract subject to this subpart unless: (1) The contractor provides
the information required by the solicitation provision at 952.204-73, or
(2) the contractor certifies that it has previously submitted the
information requested in 952.204-73 as part of a facility security
clearance and that this information is accurate, complete, and current,
and (3) the contracting officer has made a positive determination in
accordance with 904.7004.
48 CFR 904.7004 Findings, determination, and contract award or
termination.
(a) Based on the information disclosed by the offeror/bidder or
contractor, and after consulting with the DOE Office of Safeguards and
Security, the contracting officer must determine that award of a
contract to an offeror/bidder or continued performance of a contract by
a contractor will not pose an undue risk to the common defense and
security. The contracting officer need not prepare a separate finding
and determination addressing FOCI; however, the memorandum of
negotiation shall include a discussion of the applicability of this
subpart and the resulting determination.
(b) In those cases where FOCI does exist, and the DOE determines that
an undue risk to the common defense and security may exist, the
offeror/bidder or contractor shall be requested to propose within a
prescribed period of time a plan of action to avoid or mitigate the
foreign influences by isolation of the foreign interest.
(c) The types of plans that a contractor can propose are: measures
which provide for physical or organizational separation of the facility
or organizational component containing the classified information or
special nuclear material; modification or termination of agreements
with foreign interests; diversification or reduction of foreign source
income; assignment of specific security duties and responsibilities to
board members or special executive level committees; or any other
actions to negate or reduce FOCI to acceptable levels. The plan of
action may vary with the type of foreign interest involved, degree of
ownership, and information involved so that each plan must be negotiated
on a case by case basis. If the offeror/bidder or contractor and the
DOE cannot negotiate a plan of action that isolates the offeror/bidder
or contractor from FOCI satisfactory to the DOE, then the offeror/bidder
shall not be considered for contract award and affected existing
contracts with a contractor shall be terminated.
48 CFR 904.7005 Solicitation provision and contract clause.
(a) The contracting officer shall insert the representation at
952.204-73, Foreign Ownership, Control, or Influence Over Contractor, in
all solicitations for contracts subject to 904.7001.
(b) The contracting officer shall insert the clause at 952.204-74,
Foreign Ownership, Control, or Influence Over Contractor, in new
contracts and contract modifications to existing contracts subject to
904.7001.
48 CFR 904.7005 SUBCHAPTER B -- ACQUISITION PLANNING
48 CFR 904.7005 PART 905 -- PUBLICIZING CONTRACT ACTIONS
48 CFR 904.7005 Subpart 905.2 -- Synopses of Proposed Contract Actions
Sec.
905.205 Special situations.
48 CFR 904.7005 Subpart 905.3 -- Synopses of Contract Awards
905.303 Announcement of contract awards.
48 CFR 904.7005 Subpart 905.4 -- Release of Information
905.403 Requests from Members of Congress.
905.403-70 Required notices of award.
905.404-1 Release procedures.
48 CFR 904.7005 Subpart 905.5 -- Paid Advertisements
905.502 Authority.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
48 CFR 904.7005 Subpart 905.2 -- Synopses of Proposed Contract Actions
48 CFR 905.205 Special situations.
(a) Research and development (R&D) advance notices. If, as a result
of an R&D Sources-Sought Synopsis, a subsequent synopsis is issued, the
latter synopsis shall contain information regarding the earlier
synopsis, and identify the special qualifications, expertise,
experience, or facilities deemed necessary to perform the work
satisfactorily. The purpose of this added notice is to alert potential
sources that their proposal preparation effort as well as the Government
evaluation effort will be unnecessarily expended if they do not possess
these special qualifications.
(49 FR 11943, Mar. 28, 1984; 50 FR 12183, Mar. 27, 1985)
48 CFR 905.205 Subpart 905.3 -- Synopses of Contract Awards
48 CFR 905.303 Announcement of contract awards.
(a) Public announcement. See 905.403-70 for procedures to be
followed in DOE as pertains to notices of award.
(50 FR 12183, Mar. 27, 1985)
48 CFR 905.303 Subpart 905.4 -- Release of Information
48 CFR 905.403 Requests from Members of Congress.
(a) Individual requests. In addition to having access to the
information available to the general public, Members of Congress shall,
upon their request, be given full and detailed information regarding any
particular Departmental acquisition. The information provided shall be
fully responsive to the member's request unless such a response would
disclose classified matter, information not to be released pursuant to
law, business confidential information or information which would be
prejudicial to the competitive process. The contracting officer shall
promptly consult with appropriate specialists such as security analysts
or legal counsel and the Office of Congressional Affairs to determine
whether circumstances exist which will allow the release of additional
information. In such instances, the Congressional requestor shall be
provided an interim reply furnishing the information which is readily
releasable. The interim reply shall set forth the reasons which
preclude release of any requested material and describe generally what
steps, if any, are being taken to make such information available.
(49 FR 11943, Mar. 28, 1984, as amended at 50 FR 12183, Mar. 27,
1985)
48 CFR 905.403-70 Required notices of award.
The Office of Congressional Affairs, Headquarters, is responsible for
advising Members of Congress regarding Departmental activities likely to
have an impact on their constituents. To facilitate this advice,
contracting officers shall notify the Office of Congressional Affairs
regarding pending awards for significant new starts or modifications
significantly expanding the previous scope of a contract. The
transmittal of such notices to the Office of Congressional Affairs shall
be as follows:
(a) Notice of awards of $500,000 or greater, but less than $1,000,000
shall be forwarded 48 hours prior to the time of contract execution.
(b) Notice of source selection for a contemplated award of $1,000,000
or greater shall be forwarded 48 hours prior to the public announcement
of the source selection. Such notices need not be duplicated at time of
award.
(c) Notice of awards of $50,000 or greater, under Special Research
Contracts as described at 917.71, shall be forwarded 48 hours prior to
the time of contract execution.
(50 FR 12183, Mar. 27, 1985)
48 CFR 905.404-1 Release procedures.
(a) Application. Offices contemplating the release of long range
acquisition planning estimates shall coordinate with the Office of
Procurement Support, Procurement and Assistance Management Directorate,
Headquarters, in advance of the release of such planning estimates.
(49 FR 11943, Mar. 28, 1984)
48 CFR 905.404-1 Subpart 905.5 -- Paid Advertisements
48 CFR 905.502 Authority.
(a) Newspapers. When it is deemed necessary to use paid
advertisements in newspapers and trade journals, written authority for
such publication shall be obtained from the Head of the Contracting
Activity or designee.
(49 FR 11943, Mar. 28, 1984)
48 CFR 905.502 PART 906 -- COMPETITION REQUIREMENTS
48 CFR 905.502 Subpart 906.1 -- Full and Open Competition
Sec.
906.102 Use of competitive procedures.
48 CFR 905.502 Subpart 906.2 -- Full and Open Competition After
Exclusion of Sources
906.202 Establishing or maintaining alternative sources.
48 CFR 905.502 Subpart 906.3 -- Other Than Full and Open Competition
906.302 Circumstances permitting other than full and open
competition.
906.302-70 Otherwise authorized by law.
906.303 Justifications.
906.303-1 Requirements.
906.303-70 Exemption.
906.304 Approval of the justification.
48 CFR 905.502 Subpart 906.5 -- Competition Advocates
906.501 Requirement.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 50 FR 12183, Mar. 27, 1985, unless otherwise noted.
48 CFR 905.502 Subpart 906.1 -- Full and Open Competition
48 CFR 906.102 Use of competitive procedures.
(d) Other competitive procedures.
(1) Professional architect-engineer services shall be negotiated in
accordance with Subpart 936.6 and FAR Subpart 36.6.
(4) Competitive selection of research proposals for award received in
response to a Program Research and Development Announcement (See Subpart
917.73 and Part 935).
(5) Competitive selection for award of proposals offered in response
to program opportunity notices (See Subpart 917.72).
48 CFR 906.102 Subpart 906.2 -- Full and Open Competition After Exclusion of Sources
48 CFR 906.202 Establishing or maintaining alternative sources.
(b)(1) Every proposed contract action under the authority of FAR
6.202(a) shall be supported by a determination and finding (D&F) signed
by the Procurement Executive.
48 CFR 906.202 Subpart 906.3 -- Other Than Full and Open Competition
48 CFR 906.302 Circumstances permitting other than full and open competition.
48 CFR 906.302-70 Otherwise authorized by law.
(a) Authority. (1) The Atomic Energy Act of 1954, as amended,
provides in section 162 that the President may, in advance, exempt any
specific action of the Department of Energy in a particular matter
carried out under the authority of the Atomic Energy Act of 1954, as
amended, from the provisions of law relating to contracts whenever it is
determined that such action is essential in the interest of common
defense and security.
(2) Pursuant to the Federal Property and Administrative Services Act
(40 U.S.C. 474(13)), nothing in the Federal Property and Administrative
Services Act, as amended, shall impair or affect any authority or
programs authorized under the Atomic Energy Act of 1954, as amended.
906.303 Justifications.
48 CFR 906.303-1 Requirements.
(a) The justification for noncompetitive acquisition shall examine
the reasons for the acquisition being other than a full and open
competition and shall contain in the first sentence of the justification
an appropriate recommendation (e.g., I recommend that negotiations be
conducted only with (name and entity) for the supplies or services
described herein). In accordance with FAR 6.303-1 each justification
shall set forth enough facts and circumstances to clearly and
convincingly establish that full and open competition would not have
been feasible or practicable. A justification for noncompetitive
acquisition exceeding $1,000,000, or such lower dollar amount as counsel
may determine, shall be submitted by the initiator to Counsel, at the
Headquarters or field location of the initiator, for concurrence prior
to forwarding to the contracting officer. Procedural guidance is
provided in internal DOE Directives. For small purchases the
justification for other than full and open competition should be in
accordance with small purchase procedures.
48 CFR 906.303-70 Exemption.
The provisions of FAR 6.303-1 do not apply to Special Research
Contracts and extensions thereof entered into under DEAR 917.71, which
are subject to separate justification.
(54 FR 27646, June 30, 1989)
48 CFR 906.304 Approval of the justification.
(c) Class justifications within the delegated authority of a Head of
the Contracting Activity may be approved for:
(1) Contracts for electric power or energy, gas (natural or
manufactured), water, or other utility services when such services are
available from only one source;
(2) Contracts under the authority cited in FAR 6.302-4 or 6.302-5;
or
(3) Contracts for educational services from nonprofit institutions.
Class justifications for classes of actions that may exceed $10,000,000
require the approval of the Procurement Executive.
48 CFR 906.304 Subpart 906.5 -- Competition Advocates
48 CFR 906.501 Requirement.
The Secretary of Energy has delegated the authority for appointment
of the agency and contracting activity competition advocates to the
Procurement Executive. The Procurement Executive has delegated
authority to the Head of the Contracting Activity to appoint contracting
activity competition advocates. Procedural guidance is provided in
internal DOE Directives.
48 CFR 906.501 PART 907 -- ACQUISITION PLANNING
48 CFR 906.501 Subpart 907.1 -- Acquisition Plans
Sec.
907.102 Policy.
48 CFR 906.501 Subpart 907.3 -- Contractor Versus Government Performance
907.307 Appeals.
48 CFR 906.501 Subpart 907.4 -- Equipment Lease or Purchase
907.401 Acquisition considerations.
907.402-70 Purchase versus lease comparison.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 11944, Mar. 28, 1984, unless otherwise noted.
48 CFR 906.501 Subpart 907.1 -- Acquisition Plans
48 CFR 907.102 Policy.
Acquisition plans are required as an element of project management
plans which are required for major system acquisitions and major
projects. The 5700 Series of DOE Directives establish the project
management system which controls the planning and administration of
major projects. This project management system calls for the
preparation of project management plans which have as an annex the
advance acquisition plan. Acquisition plans will be developed for other
acquisitions when the potential benefit justifies their development.
48 CFR 907.102 Subpart 907.3 -- Contractor Versus Government Performance
48 CFR 907.307 Appeals.
An appeal of a decision to convert to contract or to continue
in-house performance may be made by an affected party. Appeals shall be
made in writing, be based only on specific alleged material deviation
(or deviations),from OMB Circular A-76, and be supported by appropriate
documentation. Appeals must be delivered within 15 working days of the
announced decision, to the contracting officer. The contracting officer
shall process any such appeal in accordance with internal Departmental
procedures.
48 CFR 907.307 Subpart 907.4 -- Equipment Lease or Purchase
48 CFR 907.401 Acquisition considerations.
(c) The factors in FAR 7.401 (a) and (b), the guidelines prescribed
in FPMR 101-25.5 and 907.402-70 of this chapter for making purchase or
lease determinations shall be applied to the acquisition of all types of
equipment. These factors and guidelines shall be used in making
purchase versus lease determinations at time of original acquisition,
when lease renewals are being considered, or at other times as
circumstances warrant.
(d) Contracting officers shall assure the use of applicable purchase
versus lease factors and guidelines in all acquisition and supply
operations under their jurisdiction.
(e) Excess lists shall be consulted prior to leasing equipment in
both original and renewal leasing actions. Also, leased equipment shall
be offered for utilization by other DOE offices and DOE contractors
prior to release whenever an accumulated credit toward purchase of the
equipment will be lost.
(f) Unavailability of funds is not adequate justification for a
decision to lease when purchase is indicated by a purchase versus lease
comparison to be the more economical course of action. In such
circumstances, it it essential that every effort be made to follow the
purchase course of action. This is true both with respect to those
studies made at the time leases are renewed or when other circumstancs
warrant.
48 CFR 907.402-70 Purchase versus lease comparison.
(a) A comparative cost analysis of the alternative methods of
acquisition (i.e., purchase, lease, or lease with option to purchase or
any other legally acceptable method) shall be performed to determine
which method shall provide the Government with the lowest overall cost
(price and other factors considered), over the life of the equipment.
The method chosen shall be that which offers the greatest advantage to
the Government under the circumstances which pertain to each situation.
(b) Responsibilities of acquisition officials, head of program
offices, and controller and finance divisions are as follows:
(1) Acquisition officials: (i) Contracting officers shall assure the
use of applicable purchase versus lease guidelines in all acquisition
and supply operations under their jurisdiction.
(ii) Maintain all purchase versus lease analyses and studies, and
other pertinent data used to support administrative actions taken.
(2) Heads of Program Offices: Prepare comparative cost analyses for
alternative methods of equipment acquisition and submit to the
contracting officer.
(3) Controller and Finance Divisions: Provide financial policy
guidance and assistance to the program offices in preparing comparative
cost analyses.
(c) A purchase or lease determination supported by a comparative cost
analysis is essential to the equipment acquisition process. To develop
a comparative cost analysis properly, it is necessary to bring together
''overall costs'' of the equipment over the stated life of the
equipment. Overall costs shall include, but not be limited to, cost
elements as purchase cost, rental cost, lease cost, maintenance cost for
purchased equipment, site preparation cost and installation cost. In
performing a comparative cost analysis of the alternative methods of
acquisition, it is necessary to give consideration to equipment life and
residual value.
(1) The cost of equipment for the stated equipment life should be
calculated for each acquisition method offered. Examples of plans are:
(i) Purchase -- Outright purchase after installation and acceptance
of equipment.
(ii) Lease with Purchase Option -- Lease with option to purchase at
predetermined intervals of time. The purchase price is usually reduced
by subtracting rental credits as set forth in the offeror's proposal.
(iii) Long Term Lease -- Such plans may provide multi-year leasing at
determinable prices where the agency exercises a renewal option at the
end of each fiscal year.
(iv) Lease-to-Ownership Plan or Lease with Title Tranfer Plan -- A
plan whereby title transfers after payment of n months of rental, but
usually with no obligation, or less obligation, to continue to lease
than in the installment purchase plan described below.
(v) Installment Purchase Plan -- A plan whereby the Government
exercises an option to purchase the equipment upon payment of n months
of payments. It is frequently offered as a fixed term installment plan
usually for 36 or 60 months in which the Government either is granted
title immediately, or title is passed at the end of the contract.
(2) Equipment life, which is a forecast or projection of the period
of time which begins with the installation of the equipment and ends
when the requirement for the equipment is terminated, is based upon
requirements which should be stipulated in the solicitation document.
Equipment life is not synonymous with the actual life of the equipment.
(3) Usually, at the end of the stated equipment life, the equipment
still has some residual value to the Government. This value may reflect
the fact that the initial using activity may well keep the equipment
longer than planned or some other Government activity may reutilize the
equipment. The future lease payments saved, as well as the resale value
of the equipment at the end of the stated equipment life, affect
residual value. The residual value varies with each component (item) of
equipment and its activity. However, it is generally expected that
after a five-year equipment life the equipment should still be worth
approximately 20-30% of the purchase price and after eight years, about
10%. The ''purchase price'' is the lowest evaluated purchase price
offered by a responsible and responsive offeror. Instead of the
straight purchase price, the sum of all invoice payments to be made to
the Contractor may be used as the basis for this calculation. Any
procurement option (e.g., Purchase, Lease-to-Ownership, etc.) that
results in the Government owning the system(s) will have the residual
value deducted from the systems life cost for evaluation purposes.
(4) Care should be taken during negotiations to ensure that the
Government retains accrued credits and/or equity under any lease or
installment purchase plan should the agency requirement cease or funds
no longer be available. It is desirable to negotiate for the transfer
of accrued credits to GSA should this case arise, so that GSA can find
another user and retain the equity and any purchase option credits. At
least a 90 day transfer plan should be available. The negotiator also
has to be careful that equipment discontinuance is not hampered by
restrictions on when the equipment can be dropped from the plan, or
restrictions on the adding of new equipment. Ideally, the contract
should contain no penalities for cancellation at the end of each fiscal
year. It is imperative, however, that statutory ''anti-deficiency''
restraints be considered before entering into any multi-year lease or
installment plan contracts.
(5) Particular caution should be exercised in entering into a
lease-to-ownership or installment purchase plan because often the
problems of ownership such as risk of loss or damage, taxes and
insurance immediately fall on the Government and hence are avoided by
the contractor. These plans offer real profit advantages to a
contractor when they can pass the costs and risks on to the Government.
Accordingly, since the offeror does not have to include such
contingencies in his pricing, commensurate price reductions must be a
part of the negotiation objectives under these conditions.
48 CFR 907.402-70 PART 908 -- REQUIRED SOURCES OF SUPPLIES AND SERVICES
48 CFR 907.402-70 Subpart 908.3 -- Acquisition of Utility Services
Sec.
908.303 General.
908.303-70 DOE directives.
908.303-71 Use of subcontracts.
908.307 Precontract acquisition reviews.
48 CFR 907.402-70 Subpart 908.8 -- Acquisition of Printing and Related
Supplies
908.802 Policy.
48 CFR 907.402-70 Subpart 908.11 -- Leasing of Motor Vehicles
908.1100 Scope of subpart.
908.1102 Presolicitation requirements.
908.1104 Contract clauses.
908.1170 Leasing of fuel-efficient vehicles.
48 CFR 907.402-70 Subpart 908.70 -- Use of Excess Materials From GSA
Inventories
908.7001 Use of excess materials from General Services Administration
inventories.
48 CFR 907.402-70 Subpart 908.71 -- Acquisition of Special Items
908.7100 Scope of subpart.
908.7101 Motor vehicles.
908.7101-1 Scope of section.
908.7101-2 Consolidated acquisition of new vehicles by General
Services Administration.
908.7101-3 Direct acquisition.
908.7101-4 Replacement of motor vehicles.
908.7101-5 Used vehicles.
908.7101-6 Acquisition of fuel-efficient vehicles.
908.7101-7 Government license tags.
908.7102 Aircraft.
908.7103 Office machines.
908.7104 Office furniture and furnishings.
908.7105 Filing cabinets.
908.7106 Security cabinets.
908.7107 Alcohol.
908.7108 Helium.
908.7109 Fuels and packaged petroleum products.
908.7110 Coal.
908.7111 Arms and ammunition.
908.7112 Materials handling equipment replacement standards.
908.7113 Calibration services.
908.7114 Wiretapping and eavesdropping equipment.
908.7115 Forms.
908.7116 Electronic data processing tape.
908.7117 Tabulating machine cards.
908.7118 Rental of post office boxes.
908.7119 -- 908.7120 (Reserved)
908.7121 Special materials.
48 CFR 907.402-70 Subpart 908.72 -- Use of Acquisition and Supply
Management Support Services at the Nevada Test Site
908.7200 Scope of subpart.
908.7201 Policy.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 11945, Mar. 28, 1984, unless otherwise noted.
48 CFR 907.402-70 Subpart 908.3 -- Acquisition of Utility Services.
Source: 56 FR 41964, Aug. 26, 1991, unless otherwise noted.
48 CFR 908.303 General.
48 CFR 908.303-70 DOE Directives.
Utility services (defined at FAR 8.301) shall be acquired in
accordance with FAR subpart 8.3 and DOE directives in subseries 4540
(Public Services).
48 CFR 908.303-71 Use of subcontracts.
Utility services for the furnishing of electricity, gas (natural or
manufactured), steam, water and/or sewerage at facilities owned or
leased by DOE shall not be acquired under a subcontract arrangement,
except as provided for at 970.0803 or if the prime contract is with a
utility company.
48 CFR 908.307 Precontract acquisition reviews.
Proposed solicitations and contracts (including interagency and
intragency agreements and subcontracts), and modifications thereto, for
the acquisition of utility services at facilities owned or leased by
DOE, are required to be submitted for Headquarters review and approval
as follows:
(a) Review by the Public Utilities Branch in accordance with (1) FAR
section 8.307 and (2) DOE directives in subseries 4540 (Public
Services); and
(b) Review by the Business Clearance Division in accordance with (1)
DEAR subpart 971.1 and (2) the letter(s) of delegation of contracting
authority issued to the Head of the Contracting Activity which contain
conditions on the exercise of such authority.
Those offices shall coordinate their reviews and usually provide a
single response addressing approval.
48 CFR 908.307 Subpart 908.8 -- Acquisition of Printing and Related Supplies
48 CFR 908.802 Policy.
(b) The Joint Committee on Printing, Congress of the United States
periodically publishes ''Government Printing and Binding Regulations.''
These regulations and DOE Order 1340.1A, Chapter VI, ''Printing and
Related Activities,'' govern the acquisition, use, and disposal of
printing. Inclusion of printing requirements (limited exceptions are
set forth in paragraphs 35-2 through 35-4 of the Government Printing and
Binding Regulations) in contracts for supplies and services is
prohibited unless specifically approved by the Director, Office of
Administrative Services, Headquarters. Contracting officers shall
insert the clause at 952.208-70.
(49 FR 11945, Mar. 28, 1984; 49 FR 38949, Oct. 2, 1984)
48 CFR 908.802 Subpart 908.11 -- Leasing of Motor Vehicles
48 CFR 908.1100 Scope of subpart.
This subpart prescribes procedures for the leasing, from commercial
concerns, by DOE offices and its authorized contractors, of motor
vehicles that comply with Federal Motor Vehicle Safety Standards and
applicable State motor vehicle safety regulations. It does not apply to
motor vehicles leased outside the United States. Motor vehicle
acquisition policies are at 908.7101.
48 CFR 908.1102 Presolicitation requirements.
(a)(4) Commercial vehicle lease sources may be used only when the
General Services Administration (GSA) has advised that it cannot furnish
the vehicle(s) through the Interagency Motor Pool System and it has been
determined that the vehicle(s) are not available through the GSA
Consolidated Leasing Program.
48 CFR 908.1104 Contract clauses.
(e) The clause at 952.208-7, Tagging of Leased Vehicles, shall be
inserted whenever a vehicle(s) is to be leased over 60 days, except for
those vehicles exempted by FPMR 41 CFR 101-38.6.
48 CFR 908.1170 Leasing of fuel-efficient vehicles.
(a) All sedans and station wagons and certain types of light trucks,
as specified by GSA, that are acquired by lease for 60 continuous days
or more for official use by DOE or its authorized contractors, are
subject to the requirements of the Energy Policy and Conservation Act of
1975 (EPCA), Pub. L. 94-163 and of Executive Order 12003 and subsequent
implementing regulations. Accordingly, the Director of Administration
and Heads of Contracting Activities shall submit annually to the
Director, Property and Equipment Management Division, Office of Policy,
Procurement and Assistance Management Directorate, Headquarters, for
approval, a forecast of plans for the lease of such vehicles during the
fiscal year. Such forecast shall be submitted so as to arrive at
Headquarters on or before December 1 of each year.
(b) Two copies of each proposal/request to commercially lease such
vehicles shall also be forwarded to the Director, Property and Equipment
Management Division, Office of Policy, Procurement and Assistance
Management Directorate, Headquarters, for review and
certification/approval prior to submission to GSA under the Consolidated
Lease Program or execution of commercial lease agreements. All such
documentation will be reviewed by this official and a determination made
as to conformance with applicable annual forecasts and pertinent public
laws and their implementations. (See DOE-PMR 41 CFR 109-38.13.)
(c) Leased vehicles will meet the miles-per-gallon criteria of, and
be incorporated in, the approved plan of the fiscal year in which leases
are initiated, reviewed, extended, or increased in scope. Vehicle
leases will specify the vehicle model type to be provided.
(49 FR 11945, Mar. 28, 1984; 49 FR 38949, Oct. 2, 1984)
48 CFR 908.1170 Subpart 908.70 -- Use of Excess Materials From GSA Inventories
48 CFR 908.7001 Use of excess materials from General Services
Administration inventories.
(a) It is the policy of DOE to comply with the provisions of the
Federal Property Management Regulations 41 CFR Part 101-14, National
Defense Stockpile, as supplemented from time to time by FPMR Bulletins.
(b) Section 328.2 of Defense Mobilization Order II provides that
''Under such policies and procedures as the Administrator of General
Services may prescribe, Government agencies which directly or indirectly
use strategic and critical materials shall fulfill their requirements
through the use of materials in Government inventories that are excess
to the needs thereof.''
(c) DOE offices shall fulfill their requirements for strategic and
critical materials through use of the excess strategic and critical
materials in the GSA inventories.
(d) General Services Administration (DS), Washington, DC 20406,
should be contacted directly for any detailed information concerning
specifications, prices, and methods of placing the order.
48 CFR 908.7001 Subpart 908.71 -- Acquisition of Special Items
48 CFR 908.7100 Scope of subpart.
This subpart sets forth requirements and procedures for the
acquisition of special items by DOE and contractors authorized to use
special sources of supply to the extent indicated herein.
48 CFR 908.7101 Motor vehicles.
48 CFR 908.7101-1 Scope of section.
Acquisitions by purchase of motor vehicles shall be in accordance
with this section.
48 CFR 908.7101-2 Consolidated acquisition of new vehicles by General
Services Administration.
(a) New vehicles shall be procured in accordance with FPMR 41 CFR
101-25.304, 101-26.501, and 101-38.13, and DOE-PMR 41 CFR 109-25.304,
109-38.13, and 109-38.51.
(b) Orders for all motor vehicles shall be submitted on GSA Form
1781, Motor Vehicle Requisition -- Delivery Order -- Invoice, in
accordance with FPMR 41 CFR 101-26.501. Requisitions for sedans, station
wagons, and certain light trucks as specified by GSA, should contain a
certification that the acquisition is in conformance with Pub. L.
94-163, and Executive Order 12003 and 12375 and subsequent
implementations.
(c) The schedule of dates for submission of orders is contained in
FPMR 41 CFR 101-26.501-4. Heads of Contracting Activities shall
consolidate and submit their requirements for passenger automobiles
early in the fiscal year. Requisitions for sedans, station wagons and
certain types of light trucks shall be submitted through Headquarters as
outlined in 908.7101-6. Requisitions for all other types of vehicles
shall be submitted directly to GSA.
(49 FR 11945, Mar. 28, 1984; 49 FR 38949, Oct. 2, 1984)
48 CFR 908.7101-3 Direct acquisition.
Vehicles may be acquired by DOE activities directly rather than
through GSA when a waiver has been granted by GSA. A copy of the
activity's request to GSA for a waiver shall be forwarded to the
Director, Property and Equipment Management Division, Office of Policy,
Procurement and Assistance Management Directorate, Headquarters. In
those cases involving general purpose vehicles where GSA refuses to
grant a waiver and where it is believed that acquisition through GSA
would adversely affect or otherwise impair the program, authority for
direct acquisition shall be obtained from the above-mentioned
Headquarters official, prior to acquisition. In the acquisition of
special purpose vehicles for use by DOE and its authorized contractors,
the Head of the Contracting Activity may authorize direct purchases.
The purchase price for sedans and station wagons, shall not exceed any
statutory limitation in effect at the time the acquisition is made.
(See DOE-PMR 41 CFR 109-38.5102-4).
(49 FR 11945, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984)
48 CFR 908.7101-4 Replacement of motor vehicles.
(a) The replacement of motor vehicles shall be in accordance with the
replacement standards prescribed in FPMR 41 CFR 101-38.9 and DOE-PMR 41
CFR 109-38.9.
(b) Heads of Contracting Activities may arrange to sell, as exchange
sales, used motor vehicles being replaced and to apply the proceeds to
the purchase of similar new vehicles. However, in the event personnel
are not available to make such sales, or it is in the best interest of
the DOE office, GSA may be requested to sell the used vehicles.
48 CFR 908.7101-5 Used vehicles.
Normally, DOE does not purchase or authorize contractors to purchase
used vehicles. However, Heads of Contracting Activities may authorize
the purchase of used vehicles where justified by special circumstances;
e.g., when new vehicles are in short supply, the vehicles are to be used
for experimental or test purposes, or the vehicles are acquired from
exchange sale. In accordance with DOE-PMR 41 CFR 109-38.5102, the
statutory passenger vehicle allocation requirements for DOE shall apply
to any purchase of used vehicles except in the case of vehicles to be
used exclusively for experimental or test purposes.
(49 FR 11945, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984)
48 CFR 908.7101-6 Acquisition of fuel-efficient vehicles.
(a) All purchases of sedans and station wagons, and certain types of
light trucks as specified by GSA, are subject to the requirements of the
Energy Policy and Conservation Act of 1975 (EPCA), Pub. L. 94-163, and
of Executive Orders 12003 and 12375 and subsequent implementing
regulations. Accordingly, the Director of Administration and Heads of
Contracting Activities will submit annually to the Director, Property
and Equipment Management Division, Office of Policy, Procurement and
Assistance Management Directorate, Headquarters for approval, a forecast
of plans for the purchase of such vehicles during the fiscal year. Such
forecast shall be submitted so as to arrive at Headquarters on or before
December 1 of each year. Additionally, the original and 2 copies of
requisitions (GSA form 1781) for purchase of such vehicles shall also be
forwarded to the above official for review and certification/approval
prior to submission to GSA. All such documentation will be reviewed by
this official and a determination made as to conformance with applicable
annual forecasts and pertinent public laws and their implementations.
(See DOE-PMR 41 CFR 109-38.13.)
(b) Sedans, station wagons, and light trucks requisitioned according
to an approved forecast, but not contracted for by GSA until the
subsequent fiscal year, will be included in the acquisition plan for the
miles-per-gallon criteria of the year in which GSA signs the purchase
contract along with the new vehicles planned for acquisition that year.
(49 FR 11945, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984)
48 CFR 908.7101-7 Government license tags.
(a) Government license tags shall be procured and assignments
recorded by DOE offices in accordance with FPMR 41 CFR 101-38.303.
(b) The letter ''E'' has been designated as the prefix symbol for all
DOE official license tags. Assignments of specific ''blocks'' of tag
numbers and the maintenance of tag assignment records, is performed by
the Director, Property and Equipment Management Division, Office of
Policy, Procurement and Assistance Management Directorate, Headquarters.
Assignments of additional ''blocks'' of tag numbers will be made upon
receipt of written requests from field offices.
(c) Special license tags for security purposes shall be purchased in
accordance with state and local laws, regulations, and procedures.
(d) In the District of Columbia, official Government tags shall be
obtained from the Department of Transportation, Motor Vehicles Services
Branch, District of Columbia, for all motor vehicles (except vehicles
exempt for security purposes) based or housed in the District.
(e) See DOE-PMR 41 CFR 109-38.3 and 109-38.6 for additional guidance.
(49 FR 11945, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984)
48 CFR 908.7102 Aircraft.
Acquisition of aircraft shall be in accordance with DOE-PMR 41 CFR
109-38.5205.
48 CFR 908.7103 Office machines.
Acquisitions of office machines by DOE offices and its authorized
contractors shall be in accordance with FPMR 41 CFR 101-25.104,
101-25.302, 101-25.302-3, 101-25.302-4, and 101-25.302-6, and
101-25.403, and DOE-PMR 41 CFR 109-25.302, 109-25.302-3, and 109-25.4.
48 CFR 908.7104 Office furniture and furnishings.
Acquisitions of office furniture and furnishings by DOE offices shall
be in accordance with FPMR 41 CFR 101-25.104, 101-25.302, 101-25.302-1,
101-25.302-5, 101-25.302-7, and 101-25.302-8, 101-25.404 and 101-26.505,
and DOE-PMR 41 CFR 109-25.302, 109-25.302-1, and 109-25.350.
48 CFR 908.7105 Filing cabinets.
Acquisitions of filing cabinets shall be in accordance with FPMR 41
CFR 101-26.308 and 101-25.302-2 and DOE-PMR 41 CFR 109-25.302-2.
(49 FR 11945, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984)
48 CFR 908.7106 Security cabinets.
(a) Acquisitions of security cabinets shall be in accordance with
FPMR 41 CFR 101-26.507 and the ''prerequisites to ordering'' criteria
contained in FPMR 41 CFR 101-25.302-2 and DOE-PMR 41 CFR 109-25.302-2.
(b) Fixed-price prime contractors and lower tier subcontractors may
use GSA acquisition sources for security cabinets in accordance with
FPMR 41 CFR 101-26.407 and FAR 51.
(49 FR 11945, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984)
48 CFR 908.7107 Alcohol.
(a) This section covers (1) Bureau of Alcohol, Tobacco and Firearms,
(ATF), Treasury Department, alcohol regulations applicable to DOE, (2)
delegations of authority to submit applications to purchase tax-free
alcohol or specially denatured alcohol, and (3) purchases of alcohol by
DOE or authorized contractors. To the fullest extent practicable,
alcohol for use by DOE or its cost-type contractors shall be procured on
a tax-free basis.
(b) ATF regulations relating to the acquisition and use of alcohol
free of tax, by Government agencies, are set forth in 26 CFR
213.141-213.146. Copies of excerpts from these regulations may be
secured from the Bureau of Alcohol, Tobacco and Firearms, Department of
Treasury, Washington, D.C. 20226. These regulations shall be followed in
the acquisition of alcohol.
(c) ATF Form 1444/1486, ''Tax Free Spirits or Specially Denatured
Spirits for Use of United States,'' shall be used for acquisitions of
specially denatured alcohol and ethyl alcohol. Section I of the form is
the application for permission to acquire and Section II is the permit.
If acquisition from more than one warehouse is desirable, separate
applications must be made for withdrawal from each warehouse. When
permits are no longer required, they should be forwarded to the Bureau
of Alcohol, Tobacco and Firearms for cancellation. Alcohol procured by
use of the ATF form referred to in this subsection shall be used
exclusively on DOE work.
(d) The Procurement Executive has been authorized to sign and
delegate to others authority to sign applications under Bureau of
Alcohol, Tobacco and Firearms regulations relating to the acquisition
and use of alcohol free of tax. Specific DOE personnel have been
delegated authority to execute Part I of Form 1444/1486 by letters to
the Director, Bureau of Alcohol, Tobacco and Firearms without power of
redelegation. Copies of such letters have been furnished to field
offices. Only the individuals so authorized shall execute Section I of
these forms. Requests by field offices for new authorizations or
changes to existing authorizations shall be submitted by letter to the
Procurement Executive.
(e) Applications on the ATF Form 1444/1486 shall be executed in
duplicate by an authorized DOE official and mailed directly to the
address on the application. Only one permit will be provided to each
field organization. Due to the numerous locations managed by field
operations offices, the exact shipping address need not be shown in
block 3 of the form. Shipments, however, must be addressed to the
''Department of Energy at various locations within the United States''.
The ATF will assign the application a permit number and return it to the
requestor. Distribution of certified copies shall be controlled and
each holder of a certified copy recorded.
(f) Annually, the Bureau of Alcohol, Tobacco and Firearms publishes
printed lists of Distilled Spirits Plants, Bonded Warehouses and
Denaturing Plants Authorized to Operate. Copies of these lists and
supplies of Form 1444/1486 may be secured by written request to the
Director, Bureau of Alcohol, Tobacco and Firearms, Special Operations
Branch, Washington, DC 20226.
(g) A signed copy of the permit shall accompany the original purchase
order issued to the plant or warehouse, where it shall be retained or
returned with the shipment. Subsequent orders shall refer to the permit
on file in the plant or warehouse if it was retained.
(h) When alcohol is shipped, the shipper prepares the required form
as specified by Bureau of Alcohol, Tobacco and Firearms regulations and
forwards them to the consignee. Upon receipt of the receiving report
covering the shipment, the officer who signed the purchase order shall
execute the certificate of receipt and forward it to the appropriate
Regional Director, Bureau of Alcohol, Tobacco and Firearms. The carrier
transporting the alcohol shall also be given a receipt as specified by
Bureau of Alcohol, Tobacco and Firearms regulations.
(i) Abandoned and forfeited alcohol which has come into the custody
or control of a Federal agency may be obtained by following the
procedure set forth in FPMR 41 CFR 101-43.4.
48 CFR 908.7108 Helium.
(a) Acquisitions of helium by DOE and its authorized contractors
shall be in accordance with this section.
(b) The helium act (Pub. L. 86-777, as amended (50 U.S.C. 167(d))
provides that, to the extent that supplies are readily available,
whether in gaseous or liquid form, DOE shall purchase all major
requirements of helium from the Secretary of Interior, Bureau of Mines,
or from the Bureau of Mines distribution contractors eligible to sell
Bureau of Mines helium to Federal agencies and their users in accordance
with 30 CFR Part 602.
(c)(1) Purchases may be made directly from the Bureau of Mines by
forwarding a purchase order in duplicate to: Bureau of Mines, Division
of Helium Operations, 1100 South Fillmore Street, Amarillo, Texas 79101.
(2) Purchases may be made from those commercial firms listed in the
Bureau of Mines as eligible to sell helium to Federal users.
(i) The purchase document shall contain the following statement:
''Helium furnished under this contract shall be Bureau of Mines
Helium.''
(ii) A copy of each acquisition document shall be furnished to the
address in paragraph (c)(1) of this section.
48 CFR 908.7109 Fuels and packaged petroleum products.
Acquisitions of fuel and packaged petroleum products by DOE offices
shall be in accordance with FPMR 41 CFR 101-26.602. When contractors are
authorized, consistent with 951, to acquire such products from Defense
sources, they shall do so in accordance with FPMR 41 CFR 101-26.602.
48 CFR 908.7110 Coal.
DOE offices and authorized contractors may participate in the Defense
Fuel Supply Center (DFSC) coal contracting program for carload or larger
lots. If participation is desired, estimates shall be submitted to DFSC
in accordance with FPMR 41 CFR 101-26.602.
48 CFR 908.7111 Arms and ammunition.
Pursuant to 10 U.S.C. 4655, the Secretary of the Army is authorized
to furnish arms, suitable accouterments for use therewith, and
ammunition for the protection of public money and property.
(a) The Department of the Army has granted clearance for Federal
agencies to procure, without further reference to or clearance from that
Department, all arms and ammunition of types which are not peculiar to
the military services, and which are readily procurable in the civilian
market.
(b) Acquisition of arms and ammunition readily procurable in the
civilian market shall be made in accordance with regular acquisition
procedures.
(c) Acquisition of arms and ammunition which are peculiar to the
military services shall be made by submission of order form to the
Commanding General, Headquarters, U.S. Army Material Development and
Readiness Command, 5001 Eisenhower Avenue, Alexandria, VA 22333.
(49 FR 11945, Mar. 28, 1984, as amended at 49 FR 38950, Oct. 2, 1984)
48 CFR 908.7112 Materials handling equipment replacement standards.
Materials handling equipment shall be purchased for replacement
purposes in accordance with the standards in FPMR 41 CFR 101-25.405 and
DOE-PMR 41 CFR 109-25.4. Heads of Contracting Activities are authorized
to replace an item earlier than the date specified in such standards
under unusual circumstances. A written justification shall be placed in
the purchase file.
48 CFR 908.7113 Calibration services.
Orders for calibration services may be placed with the National
Bureau of Standards, Washington, D.C. 20234, by either DOE acquisition
offices or its authorized contractors. Copies of the letters
authorizing contractors to order calibration services on behalf of DOE
shall be sent to the Bureau of Standards, Attention: ''Administrative
Services Division.''
48 CFR 908.7114 Wiretapping and eavesdropping equipment.
Acquisition by DOE offices and contractors of devices primarily
designed to be used surreptitiously to overhear or record conversations
is prohibited.
48 CFR 908.7115 Forms.
(a) DOE forms shall be obtained by DOE offices in accordance with DOE
Order 1322.2A, ''Forms Management.'' Cost-type contractors shall obtain
DOE forms through the DOE contracting officer.
(b) Standard, optional, and certain other agency forms as listed in
the GSA Supply Catalog will be obtained by DOE offices in accordance
with FPMR 41 CFR 101-26.302.
(c) Marginally punched continuous forms shall be obtained in
accordance with FPMR 41 CFR 101-26.703.
48 CFR 908.7116 Electronic data processing tape.
(a) Acquisitions of electronic data processing tape by DOE offices
shall be in accordance with FPMR 41 CFR 101-26.508.
(b) Acquisitions of electronic data processing tape by authorized
contractors shall be in accordance with FPMR 41 CFR 101-26.508-1.
However, if adequate justification exists, Heads of Contracting
Activities may authorize contractors to obtain their tape from other
sources. When such an authorization is granted, a copy of the
authorization and justification shall be retained in the contract file.
48 CFR 908.7117 Tabulating machine cards.
DOE offices shall acquire tabulating machine cards in accordance with
FPMR 41 CFR 101-26.509.
48 CFR 908.7118 Rental of post office boxes.
DOE offices and authorized contractors may rent post office boxes on
an annual basis, or for shorter periods by quarters, where necessary.
Payments for annual rentals are to be made in advance at the beginning
of the fiscal year, and for periods of less than a year, either in
advance for the whole period or at the beginning of each quarter in
which the box is to be used.
908.7119 -- 908.7120 (Reserved)
48 CFR 908.7121 Special materials.
This section covers the purchase of materials peculiar to the DOE
program. While purchases of these materials are unclassified, the
specific quantities, destination or use may be classified. See
appropriate sections of the Classification Guide. Contracting
activities shall require authorized contractors to obtain the special
materials identified in the following subsections in accordance with the
procedures stated therein.
(a) Heavy water. The Senior Program Official or designee controls
the acquisition and production of heavy water for a given program.
Request for orders shall be placed directly with the cognizant Senior
Program Official or designee.
(b) Precious metals. The Oak Ridge Operations Office is responsible
for maintaining the DOE supply of precious metals. These metals are
platinum, palladium, iridium, osmium, rhodium, ruthenium, gold and
silver. Oak Ridge Operations Office has assigned management of these
metals to Westinghouse Materials Company of Ohio (WMCO), P.O. Box
398704, Cincinnati, Ohio 45239. DOE offices and authorized contractors
shall coordinate with WMCO regarding the availability of the above
metals prior to the purchase of these metals on the open market.
(c) Lithium. Lithium is available at no cost other than normal
packing, handling, and shipping charges from Oak Ridge. The excess
quantities at Oak Ridge are to be considered as the first source of
supply prior to procurement of lithium compounds from any other source.
(54 FR 27646, June 30, 1989)
48 CFR 908.7121 Subpart 908.72 -- Use of Acquisition and Supply Management Support Services at the Nevada Test Site
48 CFR 908.7200 Scope of subpart.
This subpart sets forth DOE policy for the use of the acquisition and
supply management support services at the Nevada Test Site (NTS). The
provisions of this subpart shall be applied to contractors carrying out
authorized projects at the NTS.
48 CFR 908.7201 Policy.
As an integral part of its responsibility for furnishing
project-related materials, equipment, and technical services, the Nevada
Operations Office shall, except in special cases, provide to the fullest
practicable extent, the necessary acquisition and supply management
support services required to support the technical efforts of all
organizations sponsoring experiments or participating in the scientific
aspects of experiments conducted at the NTS. Furthermore, all
organizations that are carrying out projects or performing work at the
NTS will make the fullest practicable use of these facilities and
services to prevent unnecessary duplication and to assure maximum
efficiency and economy.
48 CFR 908.7201 PART 909 -- CONTRACTOR QUALIFICATIONS
48 CFR 908.7201 Subpart 909.1 -- Responsible Prospective Contractors (Reserved)
48 CFR 908.7201 Subpart 909.4 -- Debarment, Suspension, and
Ineligibility
Sec.
909.402 Policy.
909.404 Consolidated lists of debarred, suspended, and ineligible
contractors.
909.406 Debarment.
909.406-3 Procedures.
909.407 Suspension.
909.407-3 Procedures.
48 CFR 908.7201 Subpart 909.5 -- Organizational Conflicts of Interest
909.500 Scope of subpart.
909.570 DOE organizational conflicts of interest.
909.570-1 Scope of section.
909.570-2 Policy.
909.570-3 Definitions.
909.570-4 Criteria for recognizing organizational conflicts of
interest.
909.570-5 Disclosure of organizational conflicts of interest.
909.570-6 Notices and representations: Action required of
contracting officers.
909.570-7 Disclosure or representation.
909.570-8 Contract clauses.
909.570-9 Evaluation, findings, and contract award.
909.570-10 Action in lieu of termination.
909.570-11 Architect-engineering and construction contracts.
909.570-12 Subcontractors and consultants.
909.570-13 Remedies.
909.570-14 Examples.
909.570-15 Disclosure format.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 11949, Mar. 28, 1984, unless otherwise noted.
48 CFR 908.7201 Subpart 909.1 -- Responsible Prospective Contractors (Reserved)
48 CFR 908.7201 Subpart 909.4 -- Debarment, Suspension, and Ineligibility
48 CFR 909.402 Policy.
DOE debarment and suspension regulations are contained in 10 CFR Part
1035. Ineligibility regulations are contained in the FAR.
48 CFR 909.404 Consolidated lists of debarred, suspended, and ineligible
contractors.
The GSA Consolidated List of Debarred, Suspended, and Ineligible
Contractors (GSA List) and the DOE Consolidated List of Debarred,
Suspended, Ineligible and Voluntarily Excluded Awardees (DOE List) shall
be reviewed in accordance with 10 CFR 1035.15.
48 CFR 909.406 Debarment.
48 CFR 909.406-3 Procedures.
(a) Information of possible fraud, waste, abuse, or other forms of
wrongdoing which may constitute or contribute to grounds for debarment
or suspension shall be reported in accordance with 10 CFR 1035.5(c).
48 CFR 909.407 Suspension.
48 CFR 909.407-3 Procedures.
(a) See 909.406-3.
48 CFR 909.407-3 Subpart 909.5 -- Organizational Conflicts of Interest
48 CFR 909.500 Scope of subpart.
DOE acquisitions will be processed in accordance with 909.570 below
rather than as provided at FAR subpart 9.5 with respect to
organizational conflicts of interest.
48 CFR 909.570 DOE organizational conflicts of interest.
48 CFR 909.570-1 Scope of section.
This section sets forth Department of Energy policies and procedures
regarding organizational conflicts of interest (OCI) and is issued
pursuant to section 644 of the Department of Energy Organization Act
(Pub. L. 95-91) to implement the requirements of the Federal Nonnuclear
Energy Research and Development Act of 1974 (Pub. L. 93-577), as
amended, and the Federal Energy Administration Act of 1974 (Pub. L.
93-275), as amended.
48 CFR 909.570-2 Policy.
It is the policy of the DOE to identify and avoid or mitigate
organizational conflicts of interest before entering into contracts,
agreements, and other arrangements.
48 CFR 909.570-3 Definitions.
Affiliates means business concerns which are affiliates of each other
when either directly or indirectly one concern or individual controls or
has the power to control another, or when a third party controls or has
the power to control both.
Architect-engineering services means the work or effort of a
professional nature associated with the study, test, design,
supervision, and construction, alteration, or repair of real property
including utilities and appurtenances thereto. Such services embrace
conceptual design and Title I, Title II, and Title III work, as defined
in 936.605(c).
Contract for purposes of implementing policy on organizational
conflicts of interest, means any contract, agreement or other
arrangement with the Department.
Contractor means any person, firm, unincorporated association, joint
venture, partnership, corporation or affiliates thereof, which is a
party to a contract with the Department.
Evaluation services or activities means any work or effort, the
principal purpose of which involves the independent study of technology,
process, product, or policy.
Offeror means any person, firm, unincorporated association, joint
venture, partnership, corporation or affiliates thereof, submitting a
bid or proposal, solicited or unsolicited, to the Department to obtain a
contract or modification thereof.
Organizational conflicts of interest means that a relationship or
situation exists whereby an offeror or a contractor (including chief
executives and directors, to the extent that they will or do become
involved in the performance of the contract, and proposed consultants or
subcontractors where they may be performing services similar to the
services provided by the prime) has past, present, or currently planned
interests that either directly or indirectly, through a client
relationship relate to the work to be performed under a Department
contract and which (1) may diminish its capacity to give impartial,
technically sound, objective assistance and advice, or (2) may result in
it being given an unfair competitive advantage. It does not include the
normal flow of benefits from the performance of the contract.
Research and development means any work or effort, the principal
purpose of which involves (1) theoretical analysis, exploration, or
experimentation; or (2) extension of investigative findings and
theories of a scientific or technical nature into practical application
for experimental and demonstration purposes, including the experimental
production and testing of models, devices, equipment, materials, and
processes.
Subcontractor means any subcontractor of any tier which performs work
under a contract.
Technical consulting and management support services means any work
or effort, the principal purpose of which is to provide internal
assistance to any program element or other organizational component of
the Department in the formulation or administration of its programs,
projects, or policies, which requires the contractor to be given access
to internal or proprietary data. Such services typically include
assistance in the preparation of program plans; evaluation, monitoring
or review of contractors' activities or proposals submitted by
prospective contractors; preparation of preliminary designs,
specifications, or statements of work.
48 CFR 909.570-4 Criteria for recognizing organizational conflicts of
interest.
(a) General. Two questions should generally be asked in determining
whether organizational conflicts of interest exist: (1) Are there
conflicting roles which might bias a contractor's judgment in relation
to its work for the Department? (2) Is the contractor being given an
unfair competitive advantage based on the performance of the contract?
The ultimate determination as to whether organizational conflicts of
interest exist should be made in the light of common sense and good
business judgment based upon the relevant facts and the work to be
performed. While it is difficult to identify, and to prescribe in
advance, a specific method for avoiding all the various situations or
relationships which might involve potential organizational conflicts of
interests, Department personnel must pay particular attention to
proposed contractual requirements which call for the rendering of
advice, or consultation or evaluation services, or similar activities
that lay direct groundwork for the Department's decisions on future
acquisitions, research and development programs, production and
regulatory activities.
(b) Situations or relationships involving organizational conflicts of
interest. The following general examples (which are not all-inclusive)
illustrate situations or relationships where potential organizational
conflicts of interest frequently arise. Specific examples are set forth
at 909.570-14.
(1) Contract performance involving the preparation and furnishing of
complete or essentially complete specifications which are to be used in
competitive acquisition for the furnishing of products or services.
(2) Contract performance involving the preparation and furnishing of
a detailed plan for specific approaches or methodologies that are to be
incorporated in a competitive acquisition.
(3) Contract performance involving access to internal information not
available to the public concerning Departmental plans or programs and
related opinions, clarifications, interpretations, and positions.
(4) Contract performance involving access to proprietary information
which cannot lawfully be used for purposes other than those authorized
by the owners.
(5) Contract performance involving evaluation of the contractor's
products or services, or the products or services of another party,
where the contractor is or has been substantially involved in their
development or marketing.
(6) Contract performance involving the preparation and furnishing of
advice to the Department in a technical area where the contractor is
also providing consulting assistance in the same area to any other
organization.
(7) Contract performance involving the preparation and furnishing of
advice to the Department on a regulatory matter where the contractor is
also providing assistance on the same or similar matter to any
organization regulated by the Department.
(c) Other considerations. An organizational conflict of interest may
exist or arise:
(1) Even though no follow-on acquisition is anticipated;
(2) Even though a hardware exclusion clause may not be appropriate;
and
(3) When a contract is awarded on a noncompetitive or a sole source
basis.
(d) An organizational conflict of interest is more likely to be
disclosed if a contract is competitive. Accordingly, greater care shall
be exercised in the absence of competition.
48 CFR 909.570-5 Disclosure of organizational conflicts of interest.
(a) When submitting solicitations and unsolicited proposals for (1)
evaluation services or activities; (2) technical consulting and
management support services and professional services; (3) research and
development conducted pursuant to the authority of the Federal Energy
Administration Act of 1974 (Pub. L. 93-275), as amended; and (4) other
contractual situations where special organizational conflicts of
interest provisions are noted in the solicitation and included in the
resulting contract, offerors shall be required to disclose relevant
information bearing on the possible existence of any organizational
conflicts of interest or complete the representation required by
909.570-7. This requirement shall also apply to all modifications of
contracts of the types noted above except those issued under the Changes
clause. Where, however, a disclosure statement of the type required by
the Organizational Conflicts of Interest Disclosure or Representation
provision has previously been submitted with regard to the contract
being modified, only an updating of such statement shall be required.
Information submitted by offerors pursuant to the disclosure requirement
shall be treated by the Department, to the extent permitted by law, as
confidential information to be used solely for OCI purposes.
(b) When the Government finds that an organizational conflict of
interest exists or may exist with respect to an offeror or contractor,
no contract or contract modification award covered by 909.570-7 shall be
made until the organizational conflict of interest has been adequately
avoided or mitigated, except as provided in 909.570-9.
48 CFR 909.570-6 Notices and representations: Action required of
contracting officers.
The disclosure or representation required by 909.570-7 is designed to
alert the contracting officer to situations or relationships which may
constitute either present or anticipated organizational conflicts of
interest with respect to a particular offeror or contractor. However,
this disclosure or representation may not identify a potential
organizational conflict of interest involving a successful offeror that
could affect the offeror's participation in subsequent acquisitions
arising out of or related to work performed under a contract that
results from the solicitation currently under consideration.
Accordingly, whenever such potential conflicts are foreseeable by the
Government, a special notice also shall be included in the solicitation
informing offerors of the fact that such a potential conflict is
foreseen and that a special contract clause designed to avoid or
mitigate such conflict will be included in any resultant contract as
required by 909.570-7. Such notice shall specify the proposed extent and
duration of restrictions to be imposed with respect to participation in
subsequent acquisitions. A fixed term of reasonable duration is
measured by the time required to eliminate what would otherwise
constitute an unfair competitive advantage. This is a variable; and in
no event shall an exclusion be stated which is not related to specific
expiration date or an event certain. In the event a contractor, having
performed on one contract, later seeks work that stems or may be deemed
to stem directly from prior performance, such contractor shall not be
precluded from proposing on follow-on work unless the prior contract
contained an appropriate follow-on restriction.
48 CFR 909.570-7 Disclosure or representation.
The disclosure or representation provision at 952.209-70 shall be
included in all solicitations, scope modifications, and unsolicited
proposals for (a) evaluation services or activities; (b) technical
consulting and management support services and professional services;
(c) research and development conducted pursuant to the authority of the
Federal Energy Administration Act of 1974 (Pub. L. 93-275), as amended;
and (d) other contractual situations where special organizational
conflicts of interest provisions are noted in the solicitation and
included in the resulting contract. 909.570-15 contains a suggested
outline for the disclosure submission.
48 CFR 909.570-8 Contract clauses.
(a) General contract clause. Except where a special clause has been
determined to be appropriate, all contracts subject to the disclosure or
representation requirement of 909.570-7 shall include the clause set
forth at 952.209-71.
(b) Special contract clauses. (1) If it is determined from the
nature of the proposed contract that a potential organizational conflict
of interest may exist, the Contracting Officer may determine that such
conflict can be avoided through the use of an appropriate special
contract clause. Examples of the types of clauses which may be employed
include, but are not limited to, the following:
(i) Hardware exclusion clauses which prohibit the acceptance of
production contracts following a related nonproduction contract
previously performed by the contractor;
(ii) Software exclusion clauses;
(iii) Clauses which require the contractor (and/or certain of its key
personnel) to avoid certain organizational conflicts of interest;
(iv) Clauses which provide for the protection of the confidentiality
of data and guard against its unauthorized use; and
(v) Clauses that prohibit other segments or divisions of the
contractor from becoming involved in the performance of the contract
work or being in a position to influence such work.
If deemed appropriate, the prospective contractor may be given the
opportunity to negotiate the terms and conditions of the clause and its
application including the extent and time period of any restrictions.
(2) Contracts for technical consulting and management support
services, as defined in 909.570-3, are particularly susceptible to
organizational conflicts of interest. Therefore, the clause set forth
at 952.209-72 shall be included in all contracts for technical
consulting and management support services. This clause, after any
appropriate modification, may also be included in any contract for
professional services and evaluation services and activities.
48 CFR 909.570-9 Evaluation, findings, and contract award.
(a) The contracting officer or selection official, as appropriate,
shall evalute all relevant facts submitted by an offeror pursuant to the
requirements of 909.570-6 and such other relevant information as may be
available concerning possible organizational conflicts of interest.
After evaluation all such information in accordance with the criteria of
909.570-4 and prior to any award, a finding shall be made by the
contracting officer whether possible organizational conflict of interest
exist with respect to a particular offeror or whether there is little or
no likelihood that such conflicts exist. When formal Source Evaluation
Board procedures are applicable, the finding shall be made by the Source
Selection Official. If the finding indicates that such conflicts exist,
then the contracting officer shall:
(1) Disqualify the offeror from award; or
(2) Avoid such conflicts by the inclusion of appropriate conditions
in the resulting contract; or
(3) If such conflicts cannot be avoided by an appropriate contract
clause, and the Secretary or the Secretary's designee has nevertheless
determined that award of the contract to the offeror is in the best
interest of the United States, the contract may be awarded. Where such
a public interest determination is made, an appropriate written finding
and determination shall be published in the Federal Register and an
appropriate clause included in the contract to mitigate the conflict, to
the extent feasible, prior to any award.
(b) Examples of circumstances justifying the determination permitted
by 909.570-9(a)(3) include, but are not limited to:
(1) Situations where the public exigency will not otherwise permit;
and
(2) Situations where the work or services cannot otherwise be
obtained.
48 CFR 909.570-10 Action in lieu of termination.
If, after award, a possible organizational conflict of interest is
identified by the contractor or other sources and the contracting
officer determines that such a conflict does in fact exist and that it
would not be in the best interest of the Government to terminate the
contract as provided in the clauses required by 909.570-8, the
contracting officer shall take every reasonable action to avoid or
mitigate the effects of the conflict.
48 CFR 909.570-11 Architect-engineering and construction contracts.
(a) The award of related architect-engineering services and
construction contracts or subcontracts to the same contractor can result
in self-inspection of construction work and permit the contractor to
render biased decisions. Such contract awards shall not be permitted
unless a waiver is obtained prior to award from the Department's
Procurement Executive.
(b) The award of architect-engineering services contracts, the
principal purpose of which is to provide evaluation services and
activities or technical consulting and management support services,
shall be subject to the requirements of 909.570-7 and 909.570-8(b)(2).
48 CFR 909.570-12 Subcontractors and consultants.
The contracting officer shall require offerors and contractors to
obtain for the Department a disclosure or representation in accordance
with 909.570-7 from subcontractors and consultants who may be performing
services similar to the services provided by the prime, except that
subcontractors shall not normally be required to submit the disclosure
or representation if such subcontract is for supplies. Such disclosure
or representation may be submitted by the subcontractors and consultants
directly to the contracting officer and they shall be treated by the
Department, to the extent permitted by law, as confidential information
to be used solely for OCI purposes. The contracting officer shall
assure that contract clauses in accordance with 909.570-8 are included
in subcontracts or consultant agreements involving peformance of work
under a prime contract covered by this subpart.
48 CFR 909.570-13 Remedies.
In addition to such other remedies as may be permitted by law or
contract, for a breach of any of the restrictions in this subpart or for
nondisclosure or misrepresentation of any relevant facts required to be
disclosed by this subpart, the Department may disqualify the contractor
for subsequent Department contracts. Contractors and offerors may also
be subject to the criminal penalties expressed in 18 U.S.C. 1001 for
such violations.
48 CFR 909.570-14 Examples.
(a) In development work it is normal to select firms which have done
the most advanced work in the field. It is to be expected that these
firms will design and develop around their own prior knowledge.
Development contractors can frequently start production earlier and more
knowledgeably than can firms which did not participate in the
development, and this affects the time and quality of production, both
of which are important to the Government. In many instances, the
Government may have financed such development. Thus, the development
contractor may have an unavoidable competitive advantage which is not
considered unfair and no prohibition should be imposed.
(b) The following examples illustrate types of situations and
relationships where organizational conflict of interest questions
frequently arise, but they are not all-inclusive.
(1) Contractor A, in connection with the performance of a study
contract, is given information by the Department regarding Department
plans for future acquisitions. This information is not available to
interested industrial firms. Guidance. Normally this would constitute
an OCI and the contractor should not be permitted to compete with such
firms for work relating to such plans.
(2) Company A, in response to a requests for proposals (RFP),
proposes to undertake certain analyses of an energy savings device as
called for in the RFP. The company is one of several companies
considered to be technically well qualified. In response to the inquiry
in the RFP, A advises that it is currently performing similar analyses
for the manufacturer of the device. Guidance. Normally this would
constitute an OCI and a contract for that particular work would not be
awarded to Company A because it would be placed in a position in which
its judgment could be biased in relationship to its work for the
Department. Since there are other well qualified companies available,
there would be no reason for granting a waiver of the policy.
(3) Accounting Firm A, in response to a requests for proposals (RFP),
proposes to undertake an analysis of the profitability of one segment of
the energy industry. The firm is one of several firms considered to be
technically well qualified. In response to the inquiry in the RFP, A
advises that it derives a substantial portion of its income from the
industry to be studied. Guidance. Normally this would constitute an OCI
and a contract would not be awarded to Firm A because it would be placed
in a position in which its judgment could be biased in relationship it
its work for the Department.
(4) Company A prepares updated Government specifications for a
standard refrigerator to be procured competitively. Guidance. Normally
this would constitute an OCI and Company A shall not be allowed for a
reasonable period of time to compete for supply of the refrigerator.
(5) Company A designs or develops new electronics equipment and, as a
result of the design or development, prepares specifications. Guidance.
Normally this would not constitute an OCI and the company may supply the
electronics equipment.
(6) A tool company and/or a machinery company representing the
American Tool Institute works under the supervision and control of
Government representatives to refine specifications or to clarify the
requirements of a specific acquisition. Guidance. Normally this would
constitute an OCI and these companies may supply the item.
(7) Prior to acquisition of Automatic Data Processing (ADP)
Equipment, Company A is awarded a contract to develop software to
automate a DOE function. Since the software can be written to favor a
particular vendor's commercial ADP hardware, a potential conflict of
interest exists. Guidance. Normally this would constitute an OCI and
Company A should be barred from at least the initial follow-on ADP
hardware acquisition using the software developed under its development
contract.
(8) Company A receives a contract to define the detailed performance
characteristics a Government agency will require for the purchase of
rocket fuels. A has not developed the particular fuels. At the time
the contract is awarded, it is clear to both parties that the
performance characteristics arrived at will be used by the Government
agency to choose competitively a contractor to develop or produce the
fuels. Guidance. Normally this would constitute an OCI and Company A
shall not be permitted to bid on this acquisition.
(9) Company A receives a contract to prepare a detailed plan for the
acquisition of services aimed at the advanced scientific and engineering
training of the Department's personnel. It suggests a curriculum which
the agency endorses and incorporates in requests for proposals to
various institutions to establish and conduct such training. Guidance.
Normally this would constitute an OCI and Company A shall not be
permitted to bid on this acquisition.
(10) Consulting Firm A, in response to an RFP, proposes to undertake
an evaluation of the environmental impacts of coal-fired powered plants
as called for in the RFP. The company is one of several companies
considered to be technically well qualified. In response to the inquiry
in the RFP, A advices that it derives a substantial portion of its
income from companies which manufacture nuclear power plants. Guidance.
Normally this would constitute an OCI and a contract for that particular
work would not be awarded to Firm A because it would be placed in a
position in which its judgment could be biased in relationship to its
work for the Department.
(11) Consulting Firm A derives a substantial portion of its income
from Company B in connection with the study of natural gas production.
Company B is also heavily involved with motor gasoline marketing. A
discloses these facts in response to an RFP for a study of motor
gasoline marketing. Guidance. Normally this would constitute an OCI and
a contract for the study of motor gasoline marketing plants would not be
awarded to Firm A because it would be placed in a position in which its
judgment could be biased in relation to its work for the Department.
(12) Firm A, because of its unique technical expertise, has been
requested to assist the Department in the evaluation of proposals which
will result from a competitive solicitation. Firm A also plans to
submit a proposal in response to this game solicitation. Guidance.
Normally this would constitute a conflict and Firm A should be precluded
from participating in the solicitation. In a particular case, it may be
desirable (e.g., when the competitive field in narrow) to allow a
separate division or affiliate of Firm A to submit a proposal; but in
such a case, of course, Firm A would not itself participate in the
evaluation of this proposal, which would be undertaken by DOE personnel
or another firm.
48 CFR 909.570-15 Disclosure format.
(a) With respect to past, present, and currently planned interests
(financial, contractual, organizational, or otherwise), the offeror
should furnish a list of past, present, and currently planned activities
(including contracts) which relate to the work to be performed under the
solicitation.
(b) The list may be in columnar format showing:
(1) The company (or agency) for which the work is being, has been, or
will be performed;
(2) Nature of the work (a brief description);
(3) Period of performance for the work;
(4) Dollar value of the work; and
(5) Sales and marketing activity.
(c) Similar information to (b) above should be provided by the
covered subcontractors and consultants relating to the work to be
performed by them under the solicitation.
48 CFR 909.570-15 PART 910 -- SPECIFICATIONS, STANDARDS, AND OTHER
PURCHASE DESCRIPTIONS
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
48 CFR 910.004 Selecting specifications or descriptions for use.
(f) Specification for concrete using fly ash. Pursuant to the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6962, the
Environmental Protection Agency has promulgated rules at Part 249 of
Title 40 of the Code of Federal Regulations regarding the use of certain
waste byproducts as generally acceptable substitutes for energy
intensive raw materials. When cement or concrete is being acquired,
specifications should include provisions to allow for the use of (as an
optional or alternate material) cement or concrete which contains fly
ash. However, specifications should not be revised to allow the use of
fly ash if it can be determined that for a particular project or
application reasonable performance requirements for the cement or
concrete will not be met, or that the use of fly ash would be
inappropriate for technical reasons. Architect-engineer contracts
should include provisions assuring that the provisions of 40 CFR Part
249 are considered in developing specifications.
(g) Measurement principles for sources and special nuclear material
transfers.
(1) Certain principles regarding the resolution of measurement
differences have been developed which should be used as guides in the
preparation of contracts or other agreements by DOE in which monetary
payments or credits depend on quantity and quality of source and special
nuclear material. The provisions providing for the resolution of
measurement differences must be such that resolution is always
accomplished while at the same time minimizing any advantage one party
might have over the other.
(2) Each contract, lease or agreement should contain a:
(i) Clause describing material to be transferred;
(ii) Clause specifying the method by which the quantity and quality
are to be measured and reported;
(iii) Clause specifying the procedures to be used in resolving any
differences arising as a result of such measurements;
(iv) Clause providing for the use of an umpire to settle unresolved
differences in the analytical samples; and
(v) Clause specifying in detail which party shall bear the costs of
resolving a difference and what constitutes such costs.
(49 FR 11953, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984)
48 CFR 910.004 PART 912 -- CONTRACT DELIVERY OR PERFORMANCE
48 CFR 910.004 Subpart 912.3 -- Priorities and Allocations
Sec.
912.300 Scope of subpart.
912.302 General.
912.304 Solicitation provision and contract clause.
48 CFR 910.004 Subpart 912.5 -- Suspension of Work, Stop-Work Orders,
and Government Delay of Work
912.503 Stop-work orders.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
48 CFR 910.004 Subpart 912.3 -- Priorities and Allocations
Source: 52 FR 38422, Oct. 16, 1987, unless otherwise noted.
48 CFR 912.300 Scope of subpart.
This subpart implements and supplements FAR Subpart 12.3, Priorities
and Allocations, and implements the regulations and procedures of the
Defense Priorities and Allocations System (DPAS) in solicitations and
contracts in support of authorized national defense programs and those
energy programs which maximize domestic energy supplies. (See 15 CFR
Part 350.)
48 CFR 912.302 General.
(d) Programs which maximize domestic energy supplies are eligible for
priorities and allocations support depending on an executive decision
made on a case-by-case basis. Eligibility is pursuant to section 104(a)
of the Energy Conservation and Policy Act, Pub. L. 94-163, which added
a new section 101(c) to the Defense Production Act. Guidance is
provided by 10 CFR Part 216 and Department of Energy publication
DOE/MA-0192, ''Priorities and Allocations Support for Energy: Keeping
Energy Programs on Schedule,'' dated August 1985. Rated orders placed
in support of authorized energy programs are equivalent to orders placed
in support of authorized defense programs under the DPAS and receive the
same preferential treatment throughout the industrial supply chain.
(e) Heads of Contracting Activities shall ensure that members of
their staffs and contractors under their jurisdiction are advised of the
provisions of the DPAS regulation and that the related procedures are
followed to ensure adherence to the regulation throughout the industrial
supply chain. Under DPAS, it is mandatory that the priority rating be
extended through the industrial chain from supplier to supplier.
48 CFR 912.304 Solicitation provision and contract clause.
(a) The contracting officer shall insert the provision at 952.212-70,
Priorities and Allocations (Atomic Energy) (June 1987), in solicitations
that will result in the placement of rated orders for authorized DOE
atomic energy programs.
(b) The contracting officer shall insert the clause at 952.212-71,
Priorities and Allocations (Atomic Energy) (June 1987) in contracts that
are placed in support of authorized DOE atomic energy programs.
(c) The use of the provisions at 952.212-70 and the clause at
952.212-71 is optional for industrial delivery orders of $1,000 or less.
(d) The contracting officer shall insert the provision at 952.212-70
(Alternate I), Priorities and Allocations (Domestic Energy Supplies)
(June 1987), in solicitations that may result in the placement of rated
orders for authorized energy programs.
(e) The contracting officer shall insert the clause at 952.212-71
(Alternate I), Priorities and Allocations (Domestic Energy Supplies)
(June 1987), if it is believed the contract involves a program the
purpose of which is to maximize domestic energy supplies.
48 CFR 912.304 Subpart 912.5 -- Suspension of Work, Stop-Work Orders, and Government Delay of Work
48 CFR 912.503 Stop-work orders.
(b) Approval before issuance of a stop-work order shall be obtained
at one organizational level above the contracting officer or at such
higher level as the Head of the Contracting Activity may require.
(49 FR 11954, Mar. 28, 1984)
48 CFR 912.503 SUBCHAPTER C -- CONTRACTING METHODS AND CONTRACT TYPES
48 CFR 912.503 PART 913 -- SMALL PURCHASES AND OTHER SIMPLIFIED PURCHASE PROCEDURES
48 CFR 912.503 Subpart 913.3 -- Fast Payment Procedure
Sec.
913.301 General.
48 CFR 912.503 Subpart 913.4 -- Imprest Funds
913.403 Agency responsibilities.
48 CFR 912.503 Subpart 913.5 -- Purchase Orders
913.505-1 Optional Form (OF) 347, Order for Supplies or Services, and
Optional Form 348, Order for Supplies or Services Schedule --
Continuation.
913.505-3 Standard Form (SF) 44, Purchase Order Invoice-Voucher
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
48 CFR 912.503 Subpart 913.3 -- Fast Payment Procedure
48 CFR 913.301 General.
The fast payment procedure delineated in FAR Subpart 13.3 is not to
be utilized by DOE.
(49 FR 11954, Mar. 28, 1984)
48 CFR 913.301 Subpart 913.4 -- Imprest Funds
48 CFR 913.403 Agency responsibilities.
(d) If imprest funds are to be used, the HCA shall issue detailed
procedures for the control of such funds.
(49 FR 11954, Mar. 28, 1984)
48 CFR 913.403 Subpart 913.5 -- Purchase Orders
48 CFR 913.505-1 Optional Form (OF) 347, Order for Supplies or Services,
and Optional Form 348, Order for Supplies or Services Schedule --
Continuation.
(a)(2) Optional Forms 347 and 348 shall be used for purchase orders
using small purchase procedures. The form shall not be used as the
contractor's invoice.
(b)(2) An addendum of applicable clauses, including DOE Clause Set
319 which is provided to contracting activities by the Office of Policy,
Procurement and Assistant Management Directorate, shall be used with
each Optional Form 347.
(52 FR 38423, Oct. 16, 1987)
48 CFR 913.505-3 Standard Form (SF) 44, Purchase Order Invoice-Voucher.
(b)(1) Where necessary, the HCA or designee may authorize personnel
to use the SF 44 to make small purchases under $1000.
(d)(1) HCA's shall ensure that local procedures are issued which
provide adequate safeguards regarding the use of this type of small
purchase method, control of forms, the designation of employees
authorized to use SF-44's, and accounting for purchases.
(d)(2) Employees authorized to use Standard Form (SF) 44's are
responsible for books of SF 44's issued to them. They are also
responsible, when purchasing an item, for assuring that funds are
available for the purchase, the form is properly processed, and
purchases are limited to those items not prohibited by law or
regulation.
(54 FR 27646, June 30, 1989)
48 CFR 913.505-3 PART 914 -- SEALED BIDDING
48 CFR 913.505-3 Subpart 914.2 -- Solicitation of Bids
Sec.
914.201-5 Part IV -- Representations and instructions.
914.201-70 Preparation of invitations for bids.
48 CFR 913.505-3 Subpart 914.4 -- Opening of Bids and Award of Contract
914.401 Receipt and safeguarding of bids.
914.402-1 Unclassified bids.
914.404-1 Cancellation of invitations after opening.
914.406 Mistakes in bids.
914.406-3 Other mistakes disclosed before award.
914.406-4 Mistakes after award.
914.407-8 Protests against award.
914.407-70 Protest authorities.
914.408-2 Award of classified contracts.
48 CFR 913.505-3 Subpart 914.5 -- Two-Step Sealed Bidding
914.502 Conditions for use.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 11954, Mar. 28, 1984, unless otherwise noted.
48 CFR 913.505-3 Subpart 914.2 -- Solicitation of Bids
48 CFR 914.201-5 Part IV -- Representations and instructions.
(a) Section K, representations, certifications, and other statements
of bidders. (1) The Office of Policy, Office of Procurement, Assistance
and Program Management, will maintain a preprinted comprehensive
one-part representations, certifications, and other statements package
for use by contracting activities in solicitations.
(2) DOE contracting activities may elect to use an annual
representations and certifications submission procedure for sealed
bidding, as authorized by FAR 14.213, subject to the requirements
therein and to the requirements of 915.406-5(a)(2).
(b) Include the solicitation provision at 952.215-70 if the resulting
contract will contain any of the clauses referenced therein.
(49 FR 11954, Mar. 28, 1984, as amended at 50 FR 35959, Sept. 4,
1985; 56 FR 8146, Feb. 27, 1991)
48 CFR 914.201-70 Preparation of invitations for bids.
When an option is to be employed, the option quantity should be for
an amount which bears a reasonable relationship to the initial firm
quantity amount. For procedures to be used in setting the option
quantity, see FAR 17.2.
48 CFR 914.201-70 Subpart 914.4 -- Opening of Bids and Award of Contract
48 CFR 914.401 Receipt and safeguarding of bids.
(c) Envelopes, or other outer covering, containing identified bids
shall be time-stamped (indicating the place, date, and time of receipt)
upon receipt, either in a mail room or other receiving point at the
address specified in the invitation.
48 CFR 914.402-1 Unclassified bids.
(d) At the bid opening, the relative merits of any bid shall not be
discussed by the person opening the bids or the contracting officer,
with the bidders, their representatives, or with casual observers. No
statements shall be issued by the bid opener or the contracting officer
at a bid opening bearing on the award, the possibility of a
readvertisement, mistakes in bids, etc.
48 CFR 914.404-1 Cancellation of invitations after opening.
(c) The Procurement Executive has been delegated authority to make
the determination under FAR 14.404-1(c) and (e) and has redelegated this
authority to the Heads of Contracting Activities without power of
redelegation.
(50 FR 12184, Mar. 27, 1985)
48 CFR 914.406 Mistakes in bids.
48 CFR 914.406-3 Other mistakes disclosed before award.
(e) Pursuant to FAR 14.406-3(e), the Procurement Executive, has been
delegated authority by the Secretary to make the determinations under
FAR 14.406-3. In the case of mistakes in bids alleged after opening of
bids and before award, the Procurement Executive has redelegated this
authority to Heads of Contracting Activities without power of
redelegation and to make administrative determinations regarding
withdrawal of bids as provided for in FAR 14.406-3, providing that each
such determination shall be approved by Legal Counsel.
(49 FR 11954, Mar. 28, 1984, as amended at 56 FR 41964, Aug. 26,
1991)
48 CFR 914.406-4 Mistakes after award.
The Procurement Executive has been delegated authority to make the
determinations under FAR 14.406-4. Mistakes in bids after award,
together with the data set forth in FAR 14.406-4(e), shall be submitted
to the Procurement Executive for decision.
48 CFR 914.407-8 Protests against award.
(a) General. Protests must be received within ten working days after
the basis for protest is known or should have been known except that
protests based upon alleged improprieties in any type of solicitation
which are apparent prior to bid opening or the closing date for receipt
of initial proposals shall be filed prior to bid opening or the closing
date for receipt of initial proposals.
(b) Protests before award.
(3) The Head of the Contracting Activity or designee shall obtain,
through the Office of Procurement Review, Headquarters, approval of the
Procurement Executive to make an award where a protest has been
submitted to either the DOE or to the Comptroller General.
48 CFR 914.407-70 Protest authorities.
(a) The Procurement Executive has the authority and responsibility
for processing, reviewing, and providing to the General Accounting
Office (GAO) all information relevant to a protest filed with GAO and
otherwise representing DOE in all matters relating to such protests. In
the case of protests filed with DOE Headquarters, the Procurement
Executive shall decide such protests. The authorities and
responsibilities concerning GAO protests have been delegated to the
Director, Business Clearance Division, Office of Procurement Review,
Headquarters.
(b) The Head of the Contracting Activity (HCA) shall decide all
agency protests made to the contracting activity, with the following
exceptions:
(1) The HCA is the signatory contracting officer; or
(2) Prior to making final disposition of the protest, the action is
protested to GAO or DOE Headquarters; or
(3) The HCA finds that the issues raised have the potential for
significant impact on DOE acquisition policy or the accomplishment of
programmatic requirements.
(c) If a protest is filed with the Contracting Activity, and a
decision is made by the Head of the Contracting Activity, the agency
will not entertain a protest to the Procurement Executive.
(49 FR 11954, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984)
48 CFR 914.408-2 Award of classified contracts.
DOE regulations regarding the safeguarding of restricted data and
procedures for its destruction are contained at 10 CFR Part 795.
48 CFR 914.408-2 Subpart 914.5 -- Two-Step Sealed Bidding
48 CFR 914.502 Conditions for use.
(c) Use of the two-step sealed bidding method shall be approved by
the Head of the Contracting Activity. The contracting officer shall
submit a written request for approval justifying its use in accordance
with FAR 14.502.
(50 FR 12184, Mar. 27, 1985)
48 CFR 914.502 Part 915
48 CFR 914.502 PART 915 -- CONTRACTING BY NEGOTIATION
48 CFR 914.502 Subpart 915.4 -- Solicitation and Receipt of Proposals
and Quotations
Sec.
915.401 Applicability.
915.405-1 General.
915.406-5 Part IV Representations and instructions.
915.413 Disclosure and use of information before award.
915.413-2 Alternate II.
48 CFR 914.502 Subpart 915.5 -- Unsolicited Proposals
915.501 Definitions.
915.502 Policy.
915.503 General.
915.504 Advance guidance.
915.505 Content of unsolicited proposals.
915.506 Agency procedures.
915.506-1 Receipt and initial review.
915.506-2 Evaluation.
915.507 Contracting methods.
915.509 Limited use of data.
48 CFR 914.502 Subpart 915.6 -- Source Selection
915.610 Written or oral discussions.
915.612 Formal source selection.
915.613 Alternative source selection procedures.
48 CFR 914.502 Subpart 915.8 -- Price Negotiation
915.801 Definitions.
915.804-3 Exemptions from or waiver of submission of certified cost
or pricing data.
915.804-6 Procedural requirements.
915.804-8 Contract clauses.
915.804-70 Uncertified cost or pricing data.
915.805-5 Field pricing support.
915.805-70 Audit as an aid in proposal analysis.
915.807 Prenegotiation objectives.
915.808 Price negotiation memorandum.
48 CFR 914.502 Subpart 915.9 -- Profit
915.903 Contracting officer responsibilities.
915.905 Profit-analysis factors.
915.970 DOE structured profit and fee system.
915.970-1 General.
915.970-2 Weighted guidelines system.
915.970-3 Documentation.
915.970-4 Exceptions.
915.970-5 Special considerations -- contracts with nonprofit
organizations (other than educational institutions).
915.970-6 Contracts with educational institutions.
915.970-7 Alternative techniques.
915.970-8 Weighted guidelines application considerations.
915.971 Profit and fee-system for construction and construction
management contracts.
915.971-1 General.
915.971-2 Limitations.
915.971-3 Factors for determining fees.
915.971-4 Considerations affecting fee amounts.
915.971-5 Fee schedules.
915.971-6 Fee base.
915.972 Special considerations for cost-plus-award-fee contracts.
48 CFR 914.502 Subpart 915.10 -- Preaward, Award, and Postaward
Notifications, Protests, and Mistakes
915.1003 Debriefing of unsuccessful offerors.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 11955, Mar. 28, 1984, unless otherwise noted.
48 CFR 914.502 Subpart 915.4 -- Solicitation and Receipt of Proposals and Quotations
48 CFR 915.401 Applicability.
In addition to the exclusions included at FAR 15.401, FAR 15.4 is not
applicable to Special Research Contracts (See 917.71), Program
Opportunity Notices (See 917.72), or Program Research and Development
Announcements (See 917.73).
48 CFR 915.405-1 General.
Approval for the use of solicitations for information or planning
purposes shall be obtained from the Head of the Contracting Activity.
(49 FR 11955, Mar. 28, 1984, as amended at 56 FR 41964, Aug. 26,
1991)
48 CFR 915.406-5 Part IV Representations and instructions.
(a) Section K, representations, certifications, and other statements
of offerors or quoters. (1) The Office of Policy, Office of
Procurement, Assistance and Program Management, will maintain a
preprinted comprehensive one-part representations, certifications, and
other statements package for use by contracting activities in
solicitations.
(2) DOE contracting activities may elect to use an annual
representations and certifications submission procedure for negotiated
acquisitions, as authorized by FAR 15.407(i).
(i) The decision to implement and use an annual representations and
certifications submission procedure shall be made by the Head of the
Contracting Activity for all contracting offices under the cognizance of
the Head of the Contracting Activity.
(ii) The use of an annual representations and certifications
submission procedure should be considered in instances where a
contracting activity issues numerous solicitations for like or similar
supplies or services, thereby creating a situation where offerors would
benefit from not having to complete and submit an individual
comprehensive representation and certification package as part of each
proposal submitted in response to the solicitations.
(iii) If the contracting activity decides to use an annual
representations and certifications submission procedure, it shall
establish written procedures and responsibilities for requesting,
receiving, storing, verifying, and updating offerors' annual
submissions.
(iv) The Head of the Contracting Activity may authorize the use of an
effective period for offeror's annual representations and certifications
of greater than 1 year from the date of signature by the offeror;
however, under no circumstances shall the effective perriod for the
offeror's annual representations and certifications exceed 3 years from
the date of signature by the offeror.
(b) Section L, Instructions, conditions, and notices to offerors and
quoters. A proposal may include trade secrets and privileged or
confidential commercial or financial information, which the proposer
does not want disclosed to the public or used by the Government for any
purposes other than proposal evaluation. Procedures for handling and
protecting such data and information are discussed at 927.402-3(d)(2).
Insert the solicitation provision at 952.215-71 or 952.215-72 as
appropriate.
(d) Subcontractor solicitation provisions. Insert the notice at
952.215-70 in solicitations if the resulting contract will contain any
of the clauses referenced therein.
(50 FR 35959, Sept. 4, 1985, as amended at 56 FR 8146, Feb. 27, 1991)
915.413 Disclosure and use of information before award.
48 CFR 915.413-2 Alternate II.
The procedures discussed at FAR 15.413-2 may be used if approved at a
level above the contracting officer. See also 927.70.
48 CFR 915.413-2 Subpart 915.5 -- Unsolicited Proposals
48 CFR 915.501 Definitions.
Notice of program interest means a method by which broad general
technical problem areas needing investigation are published in order to
stimulate the flow of unsolicited proposals. The notice describes
problems, not desired solutions.
Project officer means the individual designated by the responsible
official, or designee, having responsibility for the unsolicited
proposal.
Receiving office means the office designated as the central control
point for the receipt, distribution, accountability, and status
reporting of unsolicited proposal.
Responsible official means the Senior Program Official or the head of
the staff office within whose area of responsibility the work
contemplated by the unsolicited proposal falls.
48 CFR 915.502 Policy.
(a) Present and future needs demand the involvement of all resources
in exploring alternative energy sources and technologies. To achieve
this objective, it is DOE policy to encourage external sources of unique
innovative methods, approaches, and ideas by stressing submission of
unsolicited proposals for government support. In furtherance of this
policy and to ensure the integrity of the acquisition process through
application of reasonable controls, the DOE:
(i) Disseminates information on areas of broad technical concern
whose solutions are considered relevant to the accomplishment of DOE's
assigned mission areas;
(ii) Encourages potential proposers to consult with program personnel
before expending resources in the development of written unsolicited
proposals;
(iii) Endeavors to distribute unsolicited proposals to all interested
organizations within DOE;
(iv) Processes unsolicited proposals in an expeditous manner and,
where practicable, keep proposers advised as discrete decisions are
made;
(v) Assures that each proposal is evaluated in a fair and objective
manner; and,
(vi) Assures that each proposal will be used only for its intended
purpose and the information contained therein will not be divulged
without prior permission of the proposer.
(b) Extensions of contract work resulting from unsolicited proposals
shall be processed in accordance with the procedures at 943.107.
48 CFR 915.503 General.
(c)(5) When the DOE receives a document for a commercial
demonstration which might otherwise qualify as an unsolicited proposal,
but its substance is generally known and may be obtained without
restriction by formal competitive solicitation or program opportunity
notice, or its substance closely resembles that of a pending formal
competitive solicitation or program opportunity notice, the DOE's policy
of obtaining competition applies.
(f) Unsolicited proposals for the performance of support services
are, except as discussed in this paragraph, unacceptable as the
performance of such services is unlikely to necessitate innovative or
unique concepts. There may be rare instances in which an unsolicited
proposal offers an innovative or unique approach to the accomplishment
of a support service. If such a proposal offers a previously unknown or
an alternative approach to generally recognized techniques for the
accomplishment of a specific service(s) and such approach will provide
significantly greater economy or enhanced quality, it may be considered
for acceptance. Such acceptance shall, however, require approval of the
acquisition of support services in accordance with applicable DOE
Directives and be processed as a deviation to the prohibition herein in
accordance with Subpart 901.4.
48 CFR 915.504 Advance guidance.
(b)(6) A notice of program interest can be used to provide
notification of areas of DOE interest and to stimulate the flow of
unsolicited proposals. Each program office should publish periodically
a listing of broad, general, technical problems and areas needing
investigation using the following guidelines.
(i) The notice shall be coordinated in advance with the head of the
contracting office that will be expected to award any contracts which
may result from the notice, so that advance preparations can be made for
processing proposals in accordance 915.506 and to assure that some form
of competitive solicitation, e.g. a program research and development or
request for proposal, is not possible.
(ii) Concurrence shall be obtained from the appropriate procurement
Advisor in the Office of Procurement Support, Headquarters when it is
not possible to identify which contracting office(s) will make possible
award(s).
(iii) The notice should contain, but need not be limited to, the
following information:
(A) A number assigned by the program office for control and reference
purposes;
(B) A brief description of the broad, general, technical program or
areas needing investigation (generally 50 words or less).
(C) Restrictions, if any, as to who may submit proposals.
(D) A contact (name and telephone number) within the program office
or divisions, where additional information may be obtained.
(E) An expiration date, as needed. An expiration date for a Notice
of Program Interest is not to be considered a formal due date or common
cut-off date for the submission or receipt of unsolicited proposals as
is associated with formal solicitations. Rather the expiration date is
an approximation of the time after which program interests or directions
may be expected to change less the necessary administrative time that
will be needed for the evaluation and possible award of contracts
resulting from the notice.
(F) A statement that DOE reserves the right to support or not to
support any or all proposals in whole or in part.
(G) A statement that DOE assumes no responsibility for any costs
associated with specific proposal preparation.
(H) The number of proposal copies required and address of the
receiving office to which proposals should be mailed.
(I) A reference that detailed information concerning contracting
policy and procedures is contained in the DEAR, copies of which are
available from the Superintendent of Documents, U.S. Government Printing
Office, Washington, DC 20402.
(iv) The notice content should be consolidated at the responsible
office level and should be in the format that best reflects the needs of
that specific office; e.g., letter, booklet, bulletin, or related
documents and coordinated in advance with the Unsolicited Proposal
Management Officer identified at 915.506(b).
(v) The notice should be given wide distribution including mailings
to industry associations, including small business associations,
schools, colleges and universities, appropriate professional and
scientific journals, other DOE offices, as well as individuals and
organizations that request copies on a one-time basis.
(vi) Copies of the notice shall be given to the Unsolicited Proposal
Management Officer identified at 915.506(b).
(49 FR 11955, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984)
48 CFR 915.505 Content of unsolicited proposals.
(b)(5) Unsolicited proposals for nonnuclear energy demonstration
activities not covered by existing formal competitive solicitations or
program opportunity notices should contain information along the lines
of the information requirements at 917.7201-5. They may include a
request for federal assistance or participation, and shall be subject to
the cost sharing provisions of 917.70.
48 CFR 915.506 Agency procedures.
(b) Unless otherwise specified in a notice of program interest, all
unsolicited proposals should be submitted to the Procurement and
Assistance Management Directorate, U.S. DOE, Attn: Unsolicited
Proposals Management Officer, MA432, Washington, DC 20585. If the
proposer has ascertained the cognizant program office through
preliminary contacts with program staff, the proposal may be submitted
directly to that office. In such instances, the proposer should
separately send a copy of the proposal cover letter to the Unsolicited
Proposal Management Officer to assure that the proposal is logged in the
Department's automated tracking system for unsolicited proposals.
48 CFR 915.506-1 Receipt and initial review.
(b) The DOE receiving office shall acknowledge receipt of an
unsolicited proposal, complete a preliminary review, and establish
accountability. It will send copies of the unsolicited proposal to the
responsible official(s). Each unsolicited proposal that is circulated
for a comprehensive evaluation shall have an agency control number and
legend attached or imprinted on it by the receiving office identifying
it as an unsolicited proposal and stating that it shall be used only for
purposes of evaluation.
48 CFR 915.506-2 Evaluation.
(a) The responsible official is responsible for assigment of a
project officer and such personnel as may be necessary to evaluate the
proposal fairly and objectively. In some instances the responsible
official may find it advantageous to subject the proposal to external
rather than internal evaluation. In such cases, the prior written
permission of the proposer shall be obtained. Proposals for
demonstration projects will be evaluated in accordance with the Federal
support criteria set forth in 917.7201-3 and the evaluation criteria set
forth in 917.70 and 917.7203(c) (1) through (8).
(1) The submission of innovative methods, approaches, or ideas is not
restricted to those problems or technical areas published in a DOE
notice of program interest.
(c) If, after evaluation, it is decided that a proposal will not be
supported, it is the responsibility of:
(1) The project officer to prepare a written statement setting forth
the basis for rejection of the unsolicited proposal, submit one copy to
the responsible official and retain one copy in the permanent file.
(2) The responsible official to prepare a letter to the proposer with
copies to the receiving office and the project officer.
(d) If the decision is to support a proposal, a written justification
is required which shall address each of the evaluation factors contained
in FAR 15.506-2. The justification shall be appended to the procurement
request.
(e) Unsolicited proposal justificiations shall contain a
recommedation, concurrence (when needed), and approval as follows: (In
the case of cost shared contracts, review levels shall be based on the
sum of the contractor and Government shares.)
(1) The recommendation shall be prepared and reviewed within the
initiating office at such levels as are deemed appropriate by the Senior
Program Offical for acquisitions initiated by the Headquarters or by the
Head of the Contracting Activity for field initiated acquisitions. In
establishing levels for the review of such recommendations, the Senior
Program Official or Head of the Contracting Activity shall assure that
the recommendation is reviewed at a senior organizational level in order
to assure that competition is sought when appropriate. See FAR 15.507
and 15.508.
(2) The more complex and costly transactions will benefit from early
coordination with counsel. Justifications exceeding $1,000,000, or such
lower level as counsel may determine, shall be submitted by the
initiator to counsel, at the Headquarters or field location of the
initiator, for concurrence prior to forwarding to the contracting
officer.
(3) The justification, following review of the recommendation and
concurrence of counsel (if required or considered appropriate), shall be
forwarded to the cognizant contracting officer for approval. If the
justification is acceptable to the cognizant contracting officer, final
approval shall be sought at such level as the Head of the Contracting
Activity may require. The Head of the Contracting Activity shall
further assure that the official designated as the reviewing official is
a contracting officer.
(f) Notwithstanding the decision to accept an unsolicited proposal,
organizations and individuals are subject to the policies concerning the
responsibility of prospective contractors set forth in 909.1 and FAR
9.1.
(49 FR 11955, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984, as amended
at 50 FR 12184, Mar. 27, 1985)
48 CFR 915.507 Contracting methods.
(d) Subpart 917.70, which outlines DOE's cost participation policy,
shall be followed in determining the extent to which the DOE will
participate in the cost for the proposed effort.
48 CFR 915.509 Limited use of data.
(a) An unsolicited proposal may include technical data and other
data, including trade secrets and privileged or confidential commercial
or financial information, which the proposer does not want disclosed to
the public or used by the Government for any purpose other than proposal
evaluation. Procedures for handling and protecting such data and
information are set forth at 927.402-3(d)(3).
48 CFR 915.509 Subpart 915.6 -- Source Selection
48 CFR 915.610 Written or oral discussions.
(c) The contracting officer shall point out to each offeror within
the competitive range any ambiguities or uncertainties in its proposal.
For research, development, and demonstration contracts, the discussions
are intended to assist the Source Evaluation Board (SEB) in
understanding fully the proposals and their strengths and weaknesses
based upon the individual efforts of each proposer, in assuring that the
meanings and points of emphasis of solicitation provisions have been
adequately conveyed to the offerors so that all offerors are competing
equally on the basis intended by the Government, and in evaluating the
qualifications of the personnel proposed by each firm. Where the
proposed award is not for research, development, or demonstration,
(e.g., supplies and services) the contracting officer should point out
instances in which aspects of a proposal contain a weakness in relation
to the Government's requirements.
48 CFR 915.612 Formal source selection.
(a) Negotiated competitive acquisitions of less than $10 million are
not subject to the SEB Handbook unless specifically required by the
Procurement Executive. For acquisitions under $10 million, less formal
procedures are used.
(b) The contracting officer may form teams to evaluate the technical,
business and management, and cost aspects of proposals. When teams are
used, each will function independently of the other and report its
findings to the contracting officer. The contracting officer will
discuss those findings with the teams (or representatives thereof)
separately or together, as may be more helpful. The contracting officer
will negotiate and execute the contractual instrument, using, in many
cases, some of the same specialists who participated in earlier
evaluations and discussions. Part 971 sets forth administrative
requirements for the review and approval of certain contract actions.
(c) In selections other than where price is the determining factor,
the evaluation procedures set forth in (c) (1), (2), and (3) below
should be considered.
(1) Technical evaluation. Generally, the contracting officer must
rely on scientific and engineering personnel for assistance in reviewing
proposals from a technical point of view. It is imperative, therefore,
that technical evaluations and findings be fully documented and reviewed
by responsible personnel. The report shall reflect the scoring and
ranking of the proposals. The report shall also include a narrative
evaluation specifying the strengths and weaknesses of each proposal, and
any reservations or qualifications that might bear upon the selection of
sources for negotiation and award. Concrete technical reasons
supporting a determination of unacceptability with regard to any
proposal shall be included. After evaluation and preparation of written
and signed evaluation findings by the technical evaluators, such
evaluations and proposals shall be returned to the contracting officer
or authorized representative, and maintained as a permanent record in
the contract file.
(2) Business and management evaluation. Management capabilities of
the offeror to perform the required work in a timely manner must be
appraised. In making this appraisal, the following factors, as
appropriate, and as stated in the solicitation must be considered: The
company's management organization; past performance; reputation for
reliability; availability of required facilities; cost controls;
ability to control, maintain, and account for any property provided by
the Government; the offeror's willingness to devote its resources to
the proposed work with appropriate diligence; and other pertinent
administrative and business information that may have been requested in
the solicitation, such as certifications and representations.
(3) Price/cost determinations. Each proposal requires some form of
price/cost analysis. The evaluation should consider items such as
categories and amounts of labor, indirect costs, materials, travel,
computer time, as well as information with regard to the contractor's
past cost performance, including contracts or subcontracts for like
services or supplies. The contracting officer must exercise judgment in
determining the extent of analysis in each case and any desire to obtain
assistance from personnel trained in this discipline.
(d) Personnel from the DOE, other Government agencies, consultants,
and contractors including those who operate or manage Government-owned
facilities may be used in the evaluation process as advisors when their
services are necessary and available. When personnel outside the
Government, including those of contractors who operate or manage
Government-owned facilities, are used as advisors, approval and
disclosure procedures as required by 927.7000 shall be followed. In all
instances, such personnel will be required to comply with DOE conflict
of interest regulations and nondisclosure of information requirements.
(e) The SEB procedures are intended to provide the Source Selection
Official with sufficient information to select an offeror for
negotiation on the basis of its proposal. However, it is within the
discretion of the Source Selection Official to select multiple offerors
from those within the competitive range for negotiation and to direct
that discussions be reopened with those offerors and that best and final
offers be obtained on the basis of fully definitized contract documents
executed by the offerors. The contracting officer should seek
correction of each offeror's correctable weaknesses using only technical
and other information which the Government is entitled to use for this
purpose. At the conclusion of discussions, a final common cut-off date
which allows a reasonable opportunity for submission of best and final
offers shall be established and all participants notified.
(q) Except as provided in 915.612(e), revised proposals are
evaluated, selection is made, and negotiations may be conducted with the
selected offeror but only to definitize a final agreement on price,
terms, and conditions, etc. (No factor which could have had any effect
on the selection process may be changed after the common cut-off date
for discussions).
(49 FR 11955, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984, as amended
at 52 FR 38423, Oct. 16, 1987)
48 CFR 915.613 Alternative source selection procedures.
Source Evaluation Board (SEB) procedures shall be used for all
negotiated competitive prime acquisitions expected to be $10 million or
more, excepting acquisitions for architect-engineer services, and
acquisitions specifically waived by the Procurement Executive. Guidance
regarding the designation and operation of the SEB are set forth in the
SEB Handbook.
(52 FR 38423, Oct. 16, 1987)
48 CFR 915.613 Subpart 915.8 -- Price Negotiation
48 CFR 915.801 Definitions.
Field Pricing Support is synonymous with ''pricing support'' and
within the Department of Energy means the advice provided the
contracting officer by auditors, price or cost analysts, quality
assurance personnel, engineers, program office personnel, small
business, legal, financial or other specialists based on their review
and analysis of a contractor's proposal notwithstanding their
organizational location.
48 CFR 915.804-3 Exemptions from or waiver of submission of certified
cost or pricing data.
(b)(2)(iii) Heads of Contracting Activities, for contracts estimated
to be within the limits of their delegated authority, may approve the
finding required by FAR 15.804-3(b)(2)(iii) that the lowest price
received is unreasonable.
(c)(8) Heads of Contracting Activities, for contracts estimated to be
within the limits of their delegated authority, may approve the finding
required by FAR 15.804-3(c)(8) that the price is unreasonable even
though it is a catalog or market price.
(g) Heads of Contracting Activities, for contracts estimated to be
within the limits of their delegated authority, may, without power of
redelegation, authorize individual or class exemptions for exceptional
cases in accordance with FAR 15.804-3(g).
(i) Heads of Contracting Activities, for contracts estimated to be
within the limits of their delegated authority, may, without power of
redelegation, waive the requirements for cost or pricing data under the
circumstances set forth in FAR 15.804-3(i) provided that any such
waivers are promptly reported to the Procurement Executive.
48 CFR 915.804-6 Procedural requirements.
(e) Heads of Contracting Activities, for contracts estimated to be
within the limits of their delegated authority, may, without power of
redelegation, waive the requirements for cost or pricing data under the
circumstances set forth in FAR 15.804-6(e) provided that any such
waivers are promptly reported to the Procurement Executive.
(i) Heads of Contracting Activities, for contracts estimated to be
within the limits of their delegated authority, may, without power of
redelegation, waive the requirements for subcontractor cost or pricing
data under the circumstances set forth in FAR 15.804-6(i), provided that
any such waivers are promptly reported to the Procurement Executive.
48 CFR 915.804-8 Contract clauses.
(a) The clause prescribed at FAR 52.215-22, Price Reduction For
Defective Cost or Pricing Data, shall only be included in negotiated
contracts where a Certificate of Current Cost or Pricing Data was
obtained.
(b) The contracting officer shall, insert the clause at FAR
52.215-23, Price Reduction for Defective Cost or Pricing Data --
Modifications, in solicitations and contracts when the clause prescribed
in paragraph (a) of this subsection has not been included.
(49 FR 11955, Mar. 28, 1984, as amended at 50 FR 12184, Mar. 27,
1985)
48 CFR 915.804-70 Uncertified cost or pricing data.
Anytime an offeror or contractor is not required to submit certified
cost or pricing data (proposals of $100,000 or less) the contracting
officer may require the offeror or contractor to submit uncertified cost
or pricing data. The amount of data required to be submitted should be
limited to that data necessary to allow the contracting officer to
determine the reasonableness of the price.
(49 FR 11955, Mar. 28, 1984, as amended at 50 FR 12184, Mar. 27,
1985)
48 CFR 915.805-5 Field pricing support.
(a)(1) Field pricing reports as prescribed in FAR 15.805-5(a)(1) are
not required for the negotiation of DOE contract prices or modifications
thereof. The term ''field pricing report'' refers to the Department of
Defense (DOD) system for obtaining a price and/or cost analysis report
from a cognizant DOD field level contract management office wherein
requests for the review of a proposal submitted by an offeror are
initiated and the recommendations made by the various specialists of the
management office are consolidated into a single report that is
forwarded to the office making the contract award for use in conducting
negotiations. In the DOE, such review activities, except for reviews
performed by professional auditors, are expected to be accomplished by
pricing support personnel located in DOE Contracting Activities. The
DOE contracting officer shall formally request the assistance of
appropriate pricing support personnel, other than auditors, for the
review of any proposal that exceeds $500,000, unless the contracting
officer has sufficient data to determine the reasonableness of the
proposed cost or price. Such pricing support may be requested for
proposals below $500,000, if considered necessary for the establishment
of a reasonable pricing arrangement. Contracting officers, however, are
not precluded by this section from requesting pricing assistance from a
cognizant DOD contract management office, provided an appropriate
cross-servicing arrangement for pricing support services exists between
the DOE and the servicing agency.
(c)(1) When an audit is required pursuant to 915.805-70, ''Audit as
an aid in proposal analysis'', the request for audit shall be sent
directly to the Federal audit office assigned cognizance of the offeror
or prospective contractor. A copy of each such request for audit,
without enclosures, shall be forwarded to the Director, Audit Management
Division, Office of Inspector General, Washington, D.C. When the
cognizant agency is other than the Defense Contract Audit Agency or the
Department of Health and Human Services, and an appropriate
cross-servicing agreement has not been established, the need for audit
assistance shall be coordinated with the Directorate of Procurement and
Assistance Management, Office of Policy, Policy and Procedures Division.
(2) The request for audit shall establish the due date for receipt of
the auditor's report and in so doing shall allow as much time as
possible for the auditor's review.
(e)(6) Copies of technical analysis reports prepared by DOE technical
or other pricing support personnel shall not normally be provided to the
auditor. The contracting officer or the supporting price, cost, or
financial analyst at the contracting activity shall determine the
monetary impact of the technical findings.
48 CFR 915.805-70 Audit as an aid in proposal analysis.
(a) Auditors are professional accountants who, although
organizationally independent, are the principal advisors to contracting
officers on contractor accounting and cost matters.
(b) Audit as an aid in the negotiation of price or cost arrangements
in DOE contract awards shall be utilized as provided by this subsection.
(c) Preaward audit services include:
(1) The submission of an auditor's report which sets forth the
results of the review and analysis of cost data submitted by offerors as
part of their pricing proposals, reviews of contractor's accounting
systems, recorded contract costs, and financial condition or other
related matters; and
(2) Personal consultation and advice regarding the use of the
auditor's report in the negotiation and award of a contractual
instrument.
(d) When a contract price will be based on cost or pricing data (FAR
15.804) submitted by the offerors, the DOE contracting officer or
authorized representative shall request a review by the cognizant
Federal audit activity prior to the negotiation of any contract or
modification including modifications under advertised contracts in
excess of:
(1) $500,000 for a firm fixed-price contract or a fixed-price
contract with economic price adjustment provisions; or
(2) $1,000,000 for all other contract types, including initial
prices, estimated costs of cost-reimbursement contracts, interim and
final price redeterminations, and target and settlement of incentive
contracts.
(e) The requirement for auditor reviews of proposals which exceed the
thresholds specified in paragraph (d) above may be waived at a level
above the contracting officer when the reasonableness of the negotiated
contract price can be determined from information already available.
The contract file shall be documented to reflect the reason for any such
waiver, provided, however, that independent Government estimates of cost
or price shall not be used as the sole justification for any such
waiver.
(f) Ordinarily, preaward reviews by an auditor should not be
requested for actions below the thresholds specified in paragraph (d) of
this section. Before requesting such audits, the contracting officer
should consider using recent audit reports, price negotiation
memorandums, or other pertinent information regarding the offeror to
establish the reasonableness of proposed price. However, auditor
reviews should be considered for proposals below the specified
thresholds when the contracting officer determines that:
(1) The available data is inadequate for determining the
reasonableness of the contractor's cost proposal;
(2) The contractor's estimating, accounting, or purchasing methods
are not reliable; or
(3) The best interest of the Government will be served by an audit
review, after giving consideration to the cost of the audit, type of
audit and value of the proposed contract amount.
(49 FR 11955, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984)
48 CFR 915.807 Prenegotiation objectives.
(d) The Head of the Contracting Activity shall assure that all
prenegotiation objectives and proposed actions are documented in
accordance with the requirements of FAR 15.807 and the following
requirements of this section. The degree of documentation should be
commensurate with the complexity and dollar value of the procurement.
For those procurement actions of $250,000 and above the contracting
officer shall prepare a written prenegotiation plan which shall include
prenegotiation objectives for price and other contract requirements, as
appropriate. The prenegotiation plan required by this section shall be
included as section I of the price negotiation memorandum at 915.808.
The prenegotiation plan should include, to the extent applicable, the
information cited below.
(1) General.
(a) Procurement request number, solicitation, and contract number.
(b) Offeror(s) involved in the negotiation. Include address and
location where effort is to be performed.
(c) Brief description of the work to be performed (reference to
statement of work is not sufficient).
(d) Type of solicitation (RFP, PON, PRDA, etc.) and type of contract
being awarded.
(e) Period of performance/delivery schedule.
(f) Proposed funding schedule for term of contract.
(2) Prior procurement history.
Names of previous contractors, if previous awards made for same or
similar work to be performed. Contract number(s) and performance
period(s).
(3) Solicitation data.
(a) Summary of selection process used, including number of firms
solicited, proposals received, competitive range, name of selection
official if SEB was used.
(b) If noncompetitive, basis for approval and name and title of
person approving the justification.
(c) Discuss what considerations were given to socio-economic
requirements.
(4) Advisory reports.
Identify, by title and date, the advisory reports received in support
of the negotiations, i.e., audit reports, technical evaluation reports,
cost or price analysis reports, and any other advisory report used in
preparing the prenegotiation objectives.
(5) Pricing objectives.
(a) A schedule showing the elements of the proposer's cost proposal,
recommended adjustments (auditor, technical evaluation, etc.), and the
negotiator's pricing objectives in columnar form.
(b) Discussion of how previous procurements impact the pricing
objectives of the instant procurement.
(c) Appropriate comments justifying the negotiation objective for
each element of cost. In discussing DOE's objectives indicate the
position taken in advisory reports, if requested, and the proposed
treatment of such advice/comments.
(d) The extent of subcontracting and justification for subcontract
price(s) provided by the prime contractor and the justification as
viewed by the DOE negotiator.
(e) Discussion of whether, and to what extent, negotiation will be
based on actual costs expended.
(f) Discussion of any special pricing techniques and the rationale
for their use.
(g) Discussion of how DOE's objective for fee and profit was
established, including a copy of the weighted guideline analysis, if
used. For construction contracts and construction management contracts,
discuss how the profit or fee objective was established in accordance
with the requirements of 915.971.
(h) Discussion of incentive arrangements, cost or technical, if
applicable, (i.e., share ratios, ceiling price, minimum/maxium fees.)
(i) Discussion of the treatment given to facilities capital cost of
money, if applicable, in establishing the fee/profit objective.
(j) A summary statement regarding the reasonableness of the total
price objective and appropriate discussion of the considerations used to
determine the reasonableness of price.
(6) Other issues and factors.
(a) Discuss any proposed special provisions.
(b) Identify any anticipated deviations to regulations and the
required approvals.
(c) Identify any unusual features of the Statement of Work.
(d) If applicable, identify any solicitation provisions which have
been challenged by the offeror.
(e) Indicate if the Consolidated List of Debarred, Suspended, and
Ineligible Contractors has been reviewed.
(f) Discuss whether the contractor has an approved purchasing and
accounting system.
(g) Discuss any unique or peculiar features of the contract; e.g.,
cost sharing, facility ownership, options, etc.
(h) Discuss any deviations to regulations or exceptions suggested by
the offeror and discuss proposed disposition.
(i) Discuss any results of pre-award surveys of the offeror's
financial, accounting and other management systems.
(52 FR 38423, Oct. 16, 1987)
48 CFR 915.808 Price negotiation memorandum.
(a) The Head of the Contracting Activity shall assure that all
contract actions are adequately documented and shall establish internal
review requirements therefor. While documentation may be simplified for
lesser dollar value acquisitions, documentation of prenegotiation
objectives and negotiation summaries shall be maintained in order to
promote the discipline of adequate preparation for negotiations and to
assist in supervisory review. For acquisitions of $250,000 and above,
the price negotiation memorandum (PNM) shall be divided into two major
sections: Section I, the prenegotiation plan and Section II, the
post-negotiation summary. The prenegotiation plan prepared in
accordance with 915.807 shall document the negotiation objectives
established prior to the start of formal negotiations. The
post-negotiation summary shall discuss the results of the negotiations
leading to a final agreement, and, in a general sense, provide the
results of the negotiation in terms of the extent to which
prenegotiation objectives were met. In addition to the items listed at
FAR 15.807 the following shall also be addressed in the PNM.
(11) Date and location of negotiations.
(12) Discussion of any issues raised during negotiations that were
not addressed in the prenegotiation position.
(13) In the event that pricing or other contract terms cannot be
justified to the satisfaction of the contracting officer but award is
recommended because of compelling programmatic considerations, the PNM
must fully document the efforts to obtain a more satisfactory agreement,
including the extent to which the matter was escalated within DOE and
the contractor's organization. The file must also show what
consideration was given to alternate sources or other short or long-term
alternatives (See FAR 15.803(d)).
(14) Indicate the date on which agreement was reached on the price,
and the date the certificate of current cost or pricing data was signed,
if applicable.
(15) Explain why the total price or estimated cost and fee are
considered fair and reasonable if there was significant departure from
the prenegotiation objectives.
(b) Whenever an audit review was requested and a report was obtained,
the contracting officer shall inform the cognizant audit activity of the
disposition of each audit finding and recommendation by either
forwarding a copy of the price negotiation memorandum to the auditor;
or by advising the auditor, in writing, if an award was cancelled or not
made to the audited entity; whichever is applicable.
(49 FR 11955, Mar. 28, 1984, as amended at 52 FR 38423, Oct. 16,
1987)
48 CFR 915.808 Subpart 915.9 -- Profit
48 CFR 915.903 Contracting officer responsibilities.
(d)(1)(ii) The statutory limitations on profit and fees as set forth
in FAR 15.903(d)(1) (i), (ii) and (iii) shall be followed, except as
exempted for DOE architect-engineer contracts covering Atomic Energy
Commission (AEC) and Bonneville Power Administration (BPA) functions.
Pursuant to section 602(d) (13) and (20) of the Federal Property and
Administration Services Act of 1949, as amended, those former AEC
functions, as well as those of the BPA, now being performed by DOE are
exempt from the 10 and 6 per centum cost and fee restrictions on
contracts for architect-engineer services.
(d)(2) Waivers to apply the maximum cost-plus-award-fee percentage in
915.972(a)(3) in those situations that shall result in potential fees
exceeding the limitations cited in FAR 15.903(d)(1) (i), (ii), and (iii)
shall be forwarded to the Procurement Executive.
(f) In cases where a change or modification calls for substantially
different work than the basic contract, the contractor's effort may be
radically changed and a detailed analysis of the profit factors would be
a necessity. Also, if the dollar amount of the change or contract
modification is very significant in comparision to the contract dollar
amount, a detailed analysis should be made.
(g) The estimated costs on which the maximum fee is computed pursuant
to the statutory limitations set forth in FAR 15.903(d)(1) shall include
facilities capital cost of money when this cost is included in cost
estimates.
48 CFR 915.905 Profit-analysis factors.
A profit/fee analysis technique designed for a systematic application
of the profit factors in FAR 15.905-1 provides contracting officers with
an approach that will ensure consistent consideration of the relative
value of the various factors in the establishment of a profit objective
and the conduct of negotiations for a contract award. It also provides
a basis for documentation of this objective, including an explanation of
any significant departure from it in reaching a final agreement. The
contracting officer's analysis of these prescribed factors is based on
information available prior to negotiations. Such information is
furnished in proposals, audit data, performance reports, preaward
surveys and the like.
48 CFR 915.970 DOE structured profit and fee system.
This section implements FAR 15.902 and 15.905.
48 CFR 915.970-1 General.
(a) Objective. It is the intent of DOE to remunerate contractors for
financial and other risks which they may assume, resources they use, and
organization, performance and management capabilities they employ.
Profit or fee shall be negotiated for this purpose; however, when
profit or fee is determined as a separate element of the contract price,
the aim of negotiation should be to fit it to the acquisition, giving
due weight to effort, risk, facilities investment, and special factors
as set forth in this subpart.
(b) Commercial (profit) organization. Profit or fee prenegotiation
objectives for contracts with commercial (profit) organizations shall be
determined as provided in this subpart.
(c) Nonprofit organizations. It is DOE's general policy to pay fees
in contracts with nonprofit organizations other than educational
institutions and governmental bodies; however, it is a matter of
negotiation whether a fee will be paid in a given case. In making this
decision, the DOE negotiating official should consider whether the
contractor is ordinarily paid fees for the type of work involved. The
profit objective should be reasonable in relation to the task to be
performed and the requirements placed on the contractor.
(d) Educational institutions. It is DOE policy not to pay fees under
contracts with educational institutions.
(e) State, local and Indian tribal governments. Profit or fee shall
not be paid under contracts with State, local, and Indian tribal
Governments.
48 CFR 915.970-2 Weighted guidelines system.
(a) To properly reflect differences among contracts and the
circumstances relating thereto and to select an appropriate relative
profit/fee in consideration of these differences and circumstances,
weightings have been developed for application by the contracting
officer to standard measurement bases representative of the prescribed
profit factors cited in FAR 15.905 and paragraph (d) of this section.
This is a structured system, referred to as weighted guidelines. Each
profit factor or subfactor, or component thereof, has been assigned
weights relative to their value to the contract's overall effort. The
range of weights to be applied to each profit factor is also set forth
in paragraph (d) of this section. Guidance on how to apply the weighted
guidelines is set forth in 915.970-8.
(b) Except as set forth in 915.970-4, the weighted guidelines shall
be used in establishing the profit objective for negotiation of
contracts where cost analysis is performed.
(c) The negotiation process does not contemplate or require agreement
on either estimated cost elements or profit elements. Accordingly,
although the details of analysis and evaluation may be discussed in the
fact-finding phase of the negotiation process in order to develop a
mutual understanding of the logic of the respective positions, specific
agreement on the exact weights of values of the individual profit
factors is not required and need not be attempted.
(d) The factors set forth below are to be used in determining DOE
profit objectives. The factors and weight ranges for each factor shall
be used in all instances where the weighted guidelines are applied.
48 CFR 915.970-3 Documentation.
Determination of the profit or fee objective, in accordance with this
subpart shall be fully documented. A worksheet, DOE Form F 4220.23 has
been developed to assist the contracting officer in this effort. Since
the profit objective is the contracting officer's pre-negotiation
evaluation of a total profit allowance for the proposed contract, the
amounts developed for each category of cost will probably change in the
course of negotiation. Furthermore, the negotiated amounts will
probably vary from the objective and from the pre-negotiation detailed
application of the weighted guidelines technique to each element of the
contractor's input to total performance. Since the profit objective is
viewed as a whole rather than as its component parts, insignificant
variations from the pre-negotiation profit objective, as a result of
changes to the contractor's input to total performance, need not be
documented in detail. Conversely, significant deviations from the
profit objective necessary to reach a final agreement on profit or fee
shall be explained in the price negotiation memorandum prepared in
accordance with FAR 15.808.
48 CFR 915.970-4 Exceptions.
(a) For contracts not expected to exceed $500,000, the weighted
guidelines need not be used; however, the contracting officer may use
the weighted guidelines for contracts below this amount if he or she
elects to do so.
(b) For the following classes of contracts, the weighted guidelines
shall not be used:
(1) Commercialization and demonstration type contracts;
(2) Management and operating contracts;
(3) Construction contracts;
(4) Construction management contracts;
(5) Contracts primarily requiring delivery of material supplied by
subcontractors;
(6) Termination settlements; and
(7) Contracts with educational institutions.
(c) In addition to paragraphs (a) and (b) of this section, the
contracting officer need not use the weighted guidelines in unusual
pricing situations where the weighted guidelines method has been
determined by the DOE negotiating official to be unsuitable. Such
exceptions shall be justified in writing and shall be authorized by the
Head of the Contracting Activity. The contract file shall include this
doucmentation and any other information that may support the exception.
(d) If the contracting officer makes a written determination that the
pricing situation meets any of the circumstances set forth above, other
methods for establishing the profit objective may be used. For
contracts other than those subject to Subpart 917.6, the selected method
shall be supported in a manner similar to that used in the weighted
guidelines (profit factor breakdown and documentation of profit
objectives); however, investment or other factors that would not be
applicable to the contract shall be excluded from the profit objective
determination. It is intended that the methods will result in profit
objectives for noncapital intensive contracts that are below those
generally developed for capital intensive contracts.
48 CFR 915.970-5 Special considerations -- contracts with nonprofit
organizations (other than educational institutions).
(a) For purposes of identification, nonprofit organizations are
defined as those business entities organized and operated exclusively
for charitable, scientific, or educational purposes, of which no part of
the net earnings inure to the benefit of any private shareholder or
individual, of which no substantial part of the activities is attempting
to influence legislation or participating in any political campaign on
behalf of any candidate for public office, and which are exempt from
Federal income taxation under section 501 of the Internal Revenue Code.
(b) In computing the amount of profit or fee to be paid, the DOE
negotiating official shall take into account the tax benefits received
by a nonprofit organization. While it is difficult to establish the
degree to which a remuneration under any given contract contributes to
an organization's overall net profit, the DOE negotiating official
should assume that there is an element of profit in any amount to be
paid.
(c) In order to assure consideration of the tax posture of nonprofit
organizations during a profit or fee negotiation, the DOE negotiating
official shall calculate the fee as for a contract with a commercial
concern and then reduce it at least 25 percent. However, depending on
the circumstances, the contracting officer may pay profit or fees
somewhere between this amount and the appropriate profit or fee as if it
were a commercial concern. When this is the case, the contract file
shall be documented to specifically state the reason or reasons.
(d) Where a contract with a nonprofit organization is for the
operation of Government-owned facilities, the fee should be calculated
using the procedures and schedules applicable to operating contracts as
set forth in Part 970.
48 CFR 915.970-6 Contracts with educational institutions.
In certain situations the DOE may contract with a university to
manage or operate Government-owned laboratories. These efforts are
generally apart from, and not in conjunction with, their other
activities, and the complexity and magnitude of the work are not
normally found in standard university research or study contracts. Such
operating contracts are subject to the applicable provisions set forth
in Part 970.
48 CFR 915.970-7 Alternative techniques.
(a) Profit or fees to be paid on construction contracts and
construction management contracts shall be determined in accordance with
the applicable profit/fee technique for such contracts set forth in
915.971.
(b) Profit and fee to be paid on contracts under $500,000, not using
the weighted guidelines, shall be judgmentally developed by the
contracting officer by assigning individual dollar amounts to the
factors appropriate to DOE profit considerations discussed in
915.970-2(d).
(c) Contracts which require only delivery or furnishing of goods or
services supplied by subcontractors shall include a fee or profit which,
in the best judgment of the contracting officer, is appropriate. It
would be expected that there would be a declining relationship of
profit/fee dollars in relation to total costs. The higher the cost of
subcontracts, for example, the lower the profit/fee ratio to these
costs.
(d) Profit/Fee considerations in termination settlements are often a
question of equity. They are a matter of negotiation. They should not,
however, exceed what would have otherwise been payable under weighted
guidelines had the termination not occurred.
48 CFR 915.970-8 Weighted guidelines application considerations.
(a) General. (1) 915.970-2(d) lists those DOE factors which are
given consideration for profit/fee determination in all cases in which
profit is to be specifically negotiated. This section discusses these
factors and provides guidance on how they should be evaluated.
(2) The profit/fee elements (factors or subfactors) relating to
Contractor Effort, as shown 915.970-2(d), item I, are similar to those
cost elements contained in most contract pricing proposals. Often,
individual proposals will be in a different format, but, since these
factors and subfactors are broad and basic, they provide sufficient
guidance to evaluate all items of cost generally found in proposals.
(3) In making a judgment of the value of each factor, the contracting
officer should recognize the definition, description, and purpose of the
factors, together with consideration for evaluating them as set forth
herein.
(4) The effect of the Facilities Capital Cost of Money cost principle
(FAR 31.205-10) has been recognized in the weights assigned for arriving
at profit and fee objectives; consequently, no offset is necessary or
will be made to the prenegotiation profit objectives for cost of money
recognized as a cost.
(b) Contractor effort. (1) This factor is a measure of how much the
contractor is expected to contribute to the overall effort necessary to
meet the contract performance requirements in an efficient manner. This
factor, which is apart from the contractor's basic responsibility for
contract performance, takes into account what resources are necessary,
and what the contractor must do, to accomplish a in the contract. This
factor recognizes that, within a given performance output or within a
given sales dollar figure, necessary efforts on the part of individual
contractors can vary widely in both value and quantity, and, that the
profit objective should reflect the extent and nature of the
contractor's contribution to total performance. The evaluation of this
factor requires an analysis of the cost content of the proposed
contract, as discussed in paragraphs (b) (2) through (4) of this
section. Not to be included as part of the cost base (for purposes of
computing profit) is any amount calculated for the cost of money for
facilities capital computed in accordance with Cost Accounting Standard
414.
(2) The following comprise the base elements for measuring contractor
effort:
(i) Material acquisition. Analysis of material acquisition cost
items shall include an evaluation of the managerial and technical effort
necessary to obtain the required purchased parts, subcontracted items or
services, and other materials, including consideration of the number of
orders and supplies and whether established sources are available or new
sources must be developed. In reviewing this element:
(A) The contracting officer shall determine whether the contractor
will obtain the material and tooling by routine orders from readily
available suppliers (particularly orders of substantial value in
relation to the total contract cost) or by subcontracts, and shall
consider the extent to which the prime contractor will be required to
develop complex specifications involving creative design or close
tolerance manufacturing requirements.
(B) Consideration shall be given to the managerial and technical
efforts necessary for the prime contractor to administer subcontracts
and select subcontractors, including efforts to break out sole source
subcontractors through the introduction of competition. These
determinations and considerations shall be made for purchases of raw
materials or basic commodities, purchases of processed material,
including all types of components of standard or near standard
characteristics, and purchases of pieces, assemblies, subassemblies,
special tooling, and other products special to the end item. In the
application of this criterion, it should be recognized that the
contribution of the prime contractor to his purchasing program may be
substantial. This may apply in the management of subcontracting
programs involving many sources, new complex components and
instrumentation, incomplete specifications, and close surveillance by
the prime contractor's representative.
(C) Recognized costs proposed as direct material costs, or proposed
as material overhead costs, such as scrap charges, shall be treated and
evaluated as material costs for profit evaluation.
(D) Intracompany transfers which are accepted at price, in accordance
with FAR 31.205-26(e), shall be evaluated as material. Other
intracompany transfers shall be evaluated by individual components of
cost, i.e., material, labor, and overhead.
(ii) Labor (technical and managerial, manufacturing, and support
services). Analyses of the labor cost content of the contract shall
include evaluation of the comparative quality and level of the talents,
skills, and experience of those personnel to be employed for contract
performance. In reviewing this element:
(A) Technical and managerial labor shall be evaluated, for the
purpose of assigning profit dollars, by giving consideration to the
amount of notable scientific, unusual or scarce engineering, and top
management talent needed in contrast to journeyman engineering effort,
professional staff, or closely related supporting personnel. The
diversity, or lack thereof, of scientific, engineering and managerial
specialties required for contract performance and the corresponding need
for related supervision and coordination shall be evaluated. By way of
definition, project management and administration labor falling within
this category includes senior project management personnel who oversee
and direct the work, and usually consist of the project managers,
project engineers, and comparable management personnel who form the
project management team that plans, directs, and takes responsibility
for the execution of the program or project assignment. The cost
element for project management and administration labor usually applies
to architect-engineer (A-E) contracts. The weight assigned will take
into consideration the dollar amount of the project supervised.
(B) Manufacturing labor shall be evaluated by giving consideration to
the variety and range of required manufacturing labor skills (i.e.,
department heads, supervisors, skilled and unskilled labor) and the
contractor's manpower resources for meeting these requirements.
(C) Support services labor shall be evaluated in a manner similar to
the above by assigning higher weights to professional-type skills and
lower weights to semi-professional or other type skills required for
contract performance. Support services labor represents those
classifications of direct labor whose efforts are not identifiable with
the descriptions of labor in paragraph (b)(2)(ii)(A) and (b)(2)(ii)(B)
of this subsection and may include labor classifications assigned
exclusively for contract performance, such as on-site A-E firm employees
performing project activities related to accounting, contract
administration (including reporting), cost engineering, secretarial,
clerical and the like. Care should be taken that direct charges of this
nature are appropriately classified as direct rather than indirect, and
that like activities are not allocated indirectly either to this
contract or to the contractor's other work assignments. A weighting in
excess of 9 percent for support service contract labor normally will be
justified only when the quality, skill, and experience of the support
labor warrants a weighting corresponding to category (A), above.
(iii) General management (overhead and general and administrative
(G&A) but exclusive of IR&D costs). In reviewing this element:
(A) Analysis of overhead and G&A expenses includes evaluation of the
makeup of these expenses and how much they contribute to contract
performance. This analysis shall include a determination of the amount
of labor within the expense pools and how this labor would be treated if
it were considered as direct labor under the contract. The allocable
labor elements shall be given the same profit consideration that they
would receive if they were treated as direct labor. The other elements
of these expense pools shall be evaluated to determine whether they are
routine expenses (such as utilities, supplies, and maintenance) and
hence given lesser profit consideration, or whether they contribute
significantly to contract performance. Depreciation expenses on
facilities capital will be excluded from consideration since the profit
reward for facilities capital investment is separately weighted as
discussed in 915.970-8(d). The composite of the individual
determinations in relation to the elements of the expense pools will be
the profit consideration given the pools as a whole. The procedure for
assigning relative values to such expenses differs from the method used
in assigning values for the direct labor. The upper and lower limits
assignable to the direct labor are absolute. In the case of overhead
expenses, individual expenses may be assigned values outside the range
as long as the composite ratio is within the range.
(B) It is not necessary that the contractor's accounting system break
down the overhead expenses within the classification of technical and
managerial (or engineering) overhead, manufacturing overhead, and
general and administrative expenses, unless dictated otherwise by Cost
Accounting Standards (CAS). The contractor whose accounting system only
reflects one overhead rate on all direct labor need not make changes to
reflect more detail data (if CAS exempt) to correspond with the above
classifications. In evaluating such a contractor's overhead rate, the
negotiating official can break out the applicable sections of the
composite rate which can be classified as technical, managerial, or
engineering overhead, manufacturing overhead, and general and
administrative expenses and follow the appropriate evaluation technique.
(C) There is a critical factor to consider in the determination of
profit in this area. Management problems surface in various degrees and
the management expertise exercised to solve them shall be considered as
an element of profit. For example, a new program for an item that is on
the cutting edge of the state of the art will cause more problems and
require more managerial time and abilities of a higher order than a
follow-on contract. If new contracts create more problems and require a
higher profit consideration, follow-ons shall be adjusted downward as
many of the problems may have been solved. In any event, an evaluation
shall be made of the underlying managerial effort involved on a
case-by-case basis.
(D) It may not be necessary for the negotiating official to make a
separate profit evaluation of overhead expenses with each acquisition of
substantially the same circumstance or service with the same contractor.
Where an analysis of the profit weight to be assigned to the overhead
pool has been made, the weight to be assigned may be used for future
contracts with the same contractor until there is a change in the cost
composition of the overhead pool or the contract circumstances, or until
the factors discussed in paragraph (C) above are relevant.
(iv) Other direct costs (exclusive of CAS 414, Facilities Capital
Cost of Money). In evaluating this element, it should be remembered:
(A) Proposals, particularly for research and development, often list
as direct costs the kinds of expenses usually treated as indirect for
other contracts. Examples are travel and subsistence, consultants,
telephone, computer costs and reports reproduction. The accounting
treatment of a cost category does not change the weight appropriate to
the cost being evaluated.
(B) The weight ranges in the format cover the broad categories of
direct material, labor, and G&A expenses. Although cost submissions may
vary from the way shown in the format, all cost categories contained in
submissions will fall under one of the broad groupings shown in the
format. Because other direct costs are not direct material or direct
labor, it follows that they will be considered as indirect costs for
weighting purposes.
(C) Contract risk. (1) This factor reflects the policy of the
Department of Energy that contractors bear an equitable share of cost
risk, and to compensate them for the assumption of that risk. A
contractor's risk associated with costs to perform under a Government
contract is usually minimal under cost-reimbursement-type contracts. In
developing a prenegotiation profit or fee objective, the negotiating
official will need to consider the type of contract to be negotiated and
the anticipated contractor cost risk. This consideration is one of the
most important factors in arriving at a prenegotiation profit or fee
objective.
(2) Profit/Fee allowances for contractor assumption of cost risk
require a determination of the degree of cost responsibility the
contractor assumes, and the reliability of the cost estimates in
relation to the task assumed. This factor is specifically limited to
the risk of costs of contract performance, including unallowable cost
elements. Thus, such risks on the part of the contractor as reputation,
losing a commercial market, losing potential profits in other fields, or
any risk on the part of the contracting activity, such as the risk of
not acquiring an effective product or service, are not within the scope
of this factor.
(3) The first and basic determination of the degree of cost
responsibility assumed by the contractor is related to the sharing of
total risk of performance cost by the Government and the contractor
through the selection of contract type. The extremes are a
cost-plus-fixed-fee contract, requiring only that the contractor use his
best efforts to perform a task, and a firm-fixed-price contract. A
cost-plus-fixed-fee contract reflects a minimum assumption of cost
responsibility, whereas a firm-fixed-price contract reflects a complete
assumption of cost responsibility.
(4) The second determination is that of the reliability of the cost
estimates. Sound price negotiation requires well-defined contract
objectives and reliable cost estimates which, among other things, take
the difficulty of the task into consideration. Prior production
experience assists the contractor in preparing reliable cost estimates
on new contracts for similar items.
(5) Contractors are likely to assume greater cost risk when confident
that contracting officers analyze the risk incident to proposed
contracts and show they are willing to compensate contractors for it.
Generally, a cost-plus-fixed-fee contract will not justify a reward for
risk in excess of 0.5 percent, nor will a firm-fixed-price contract
justify a reward of less than the minimum on the following weighted
guidelines. Where proper contract-type selection has been made, the
reward for risk, by contract type, will usually fall into the following
percentage ranges which are applied to total recognized contract costs,
exclusive of facilities capital cost of money:
(i) Type of contract and percentage ranges for profit objectives
developed for equipment and supply contracts:
Cost-Plus-Fixed-Fee -- 0 to 0.5%
Cost-Plus-Incentive-Fee:
With Cost Incentives Only -- 1 to 2%
With Multiple Incentives -- 1.5 to 3%
Fixed-Price-Incentive:
With Cost Incentives Only -- 3 to 5%
With Multiple Incentives -- 4 to 6%
Prospective-Price-Redeterminable -- 4 to 6%
Firm-Fixed-Price -- 6 to 8%
(ii) Type of contract and percentage ranges for profit objectives
developed for research and development contracts:
Cost-Plus-Fixed-Fee -- 0 to 0.5%
Cost-Plus-Incentive-Fee:
With Cost Incentives Only -- 1 to 2%
With Multiple Incentives -- 1.5 to 3%
Fixed-Price-Incentive:
With Cost Incentives Only -- 2 to 4%
With Multiple Incentives -- 3 to 5%
Prospective-Price-Redeterminable -- 3 to 5%
Firm-Fixed-Price -- 5 to 7%
(iii) Type of contract and percentage ranges for profit objectives
developed for contracts for services.
Cost-Plus-Fixed-Fee -- 0 to 0.5%
Cost-Plus-Incentive-Fee -- 1 to 2%
Fixed-Price-Incentive -- 2 to 3%
Firm-Fixed-Price -- 3 to 4%
(6) In assessing the selection and application of a weighting factor,
the DOE negotiating official should remember:
(i) These ranges may not be appropriate for all acquisitions. For
instance, a fixed-price-incentive contract that is closely priced with a
low ceiling price and high incentive share may be tantamount to a firm
fixed price contract. In this situation, the contracting officer may
determine that a basis exists for high confidence in the reasonableness
of the estimate and that little opportunity exists for cost reduction
without extraordinary efforts. On the other hand, a contract with a
high ceiling and low incentive formula can be considered to contain
cost-plus-incentive-fee contract features. In this situation, the
contracting officer may determine that the Government is retaining much
of the contract responsibility and that the risk assumed by the
contractor is minimal. Similarly, if a cost-plus-incentive-fee contract
includes an unlimited downward (negative) fee adjustment on cost
control, it could be comparable to a fixed-price-incentive-contract. In
such a pricing environment, the negotiating official may determine that
the Government has transferred a greater amount of cost responsibility
to the contractor than is typical under a normal cost-plus-incentive-fee
contract.
(ii) The acquisition may not obviously fit a specific category shown.
For example, effort under a particular A-E contract may better fall
into the category of R&D, rather than services. Judgment is required,
therefore, in establishing the category and weights to be applied in
each case.
(iii) The contractor's subcontracting program may have a significant
impact on the contractor's acceptance of risk under a contract form. It
can cause risk to increase or decrease in terms of both cost and
performance. This consideration shall be a part of the contracting
officer's overall evaluation in selecting a factor to apply for cost
risk. It may be determined, for instance, that the prime contractor has
effectively transferred real cost risk to a subcontractor and the
contract cost risk evaluation, as a result, may be below the range that
would otherwise apply for the contract type being proposed. This
situation will be found to exist only in a few extraordinary situations
under circumstances of (A) a follow-on production contract, in which a
substantial portion of the total contract costs represents a single
subcontract or a few subcontracts, and (B) the fullest incentive reward
and penalty feature on cost performance having been passed by the prime
contractor to the subcontractor. In an acquisition in which all of
these circumstances are found to exist, a lower than usual profit weight
may be applied to the aggregate of all recognized costs, including the
subcontract portion. The contract risk evaluation should not be
lowered, however, merely on the basis that a substantial portion of the
contract costs represents subcontract costs (when there is no
substantial transfer of the contractor's risk) since such action
eventually can result in an undue or undesirable lessening of the amount
of work let on subcontracts.
(iv) In making a contract cost risk evaluation in an acquisition that
involves executing a definitive contract for a letter contract, unpriced
change orders, and unpriced orders under basic ordering agreements, the
effect on total contract cost risk as a result of having partial
performance before a definitive contract is executed should be
considered. Under some circumstances it may be concluded that the
amount of cost risk has been effectively reduced. Under other
circumstances it may be apparent that the contractor's cost risk
remained substantially unchanged. To be equitable, the determination of
a profit weight for application to the total of all recognized costs,
both those incurred and those yet to be expended, must be made with
consideration of all attendant circumstances and not be just the portion
of costs incurred, or percentage of work completed, prior to the
execution of a definitive contract.
(v) Time and material, labor hour, and overhaul contracts priced on a
time and material basis shall be considered to be cost-plus-fixed-fee
contracts for the purpose of establishing a profit weight in the
evaluation of the contractor's assumption of contract cost risk.
(d) Capital investment (facilities). (1) This element relates to the
consideration to be given in the profit objective in recognition of the
investment risk associated with the facilities employed by the
contractor. Measurement of the amount of facilities capital employed is
discussed in FAR 30.414. Five to twenty percent of the net book value of
facilities capital allocated to the contract is the normal range of
weight for this profit factor. The key factors that the negotiating
official shall consider in evaluating this factor are:
(i) The overall cost effectiveness of the facilities employed;
(ii) Whether the facilities are general purpose or special purpose
items;
(iii) The age of the facilities;
(iv) The relationship of the remaining writeoff life of the
investment and the length of the program(s) or contract(s) on which the
facilities are employed; and
(v) Special contract provisions that reduce the contractor's risk of
recovery of facilities capital investment (termination-protection
clauses, multiyear cancellation ceilings, etc.).
(2) To assist in evaluating new investment, the contracting officer
should request the contractor to submit reasonable evidence that the new
facilities are part of an approved investment plan and that achievable
benefits to the Government will result from the investment. New
industrial facilities and equipment shall receive maximum weight when
they --
(i) Are to be acquired by the contractor primarily for Government and
energy related business and effort;
(ii) Have a long service life;
(iii) Have a limited economic life due to limited alternative uses;
and
(iv) Reduce the total life cycle cost of the products produced for,
or services to, the Department of Energy.
To the extent that the new investment represents routine replacement
of existing assets, a lesser weight shall be assigned.
(e) Independent research and development. This factor rewards
contractors in two ways:
(1) As a reward for the contractor's investment in a viable
independent research and development program; considering, among other
things, the program's quality, scope, and resources employed. The
normal weight range for this factor is from 5 to 7 percent of allowable
IR&D costs allocable to the prospective contract.
(2) As a reward for contractors who assume the extra risk of
developing items with energy program applications on their own
initiative with no direct Government assistance and little or no
indirect Government assistance. Profit weights in the range of 0 to 20
percent of the basic profit dollars (total of profit dollars for items
I.A. through I.E., 915.970-2(d)) are normal for this factor. The weight
selection is to be based on the amount of assistance provided by the
Government through independent research and/or development expense
allowance under previous Government contracts and the extent the
contractor already has been compensated for independent development
through prior sales of the identical item to the Government.
(f) Participation in special programs. (1) A composite percentage
weight within the range of ^5 percent to +5 percent of the basic profit
objective (total of profit dollars for items I.A. through I.E.,
915.970-2(d)) may be assigned for this profit objective. This profit
factor, which may apply to special circumstances as well as a particular
acquisition, relates to rewards of outstanding achievement in contractor
participation in the Government's small business, small disadvantaged
business, women-owned small business concerns, labor surplus, energy
conservation and other special programs. Participation that is rated as
merely satisfactory shall be assigned a weight of zero, generally.
Evidence of effective support may justify a plus weight and poor support
a negative weight.
(2) In assessing this factor, the negotiating official shall:
(i) Give favorable consideration to the contractor's policies and
procedures that effectively support Government small business and small
disadvantaged business subcontracting programs. Any unusual effort that
the contractor displays in subcontracting with these concerns,
particularly for development-type work likely to result in later
production opportunities, and the overall effectiveness of the
contractor in subcontracting with, and furnishing assistance to, such
concerns shall be considered. Conversely, failure or unwillingness on
the part of the contractor to support these Government policies shall be
viewed as evidence of poor performance for the purpose of establishing a
profit objective.
(ii) Make a similar review and evaluation of the contractor's
policies and procedures supporting the Government's labor surplus area
program. In particular, favorable consideration shall be given to a
contractor who (A) makes a significant effort to help find jobs and
provide training for the hardcore unemployed, or (B) promotes maximum
subcontractor utilization of certified eligible concerns.
(iii) Give favorable consideration to the contractor's initiatives
and accomplishments in the conservation of energy and in carrying out
any other special Government programs.
(g) Other considerations. (1) Particular situations may justify
consideration of a profit allowance in addition to those specifically
identified elsewhere in the guidelines. These situations shall be
identified and the reason(s) for their use documented in the price
negotiation memorandum. An assigned weight of ^5 to +5 percent of the
basic profit objective is the normal range for this profit factor
depending on the circumstances of the particular acquisition. A zero
weight designates a satisfactory or average effort.
(2) Examples of ''other considerations'' are described in the
following subparagraphs.
(i) Cost-control and other past accomplishments. This factor allows
additional profit opportunities to a prospective contractor that has
previously demonstrated its ability to perform similar tasks effectively
and economically. In addition, consideration should be given to (A)
measures taken by the prospective contractor that result in productivity
improvements and (B) other cost-reduction accomplishments that will
benefit Government contracts. Among other things, consideration should
be given to the contractor's efforts to explore additional production
opportunities or to improve or develop new product, manufacturing or
performance technologies to reduce production cost.
(ii) Complexity of R&D or services assignment. A weighting for the
complexity of the R&D or services assignment will be considered when a
contract, such as an A-E contract, relates to a DOE project facility.
The following complexity categories are to be used for the purpose of
establishing the appropriate fee weight:
(A) Class A -- Manufacturing plants involving continuous closed
processes or other complicated operations requiring a high degree of
design particle accelerators; complex laboratories or industrial units
especially designed for processing, testing or handling highly
radioactive materials; facilities to be used for research, development,
experimental or demonstration purposes which involve advance or unique
design considerations that are peculiar to the purposes for which the
facility is built.
(B) Class B -- Normal manufacturing processes and assembly operations
such as ore dressing, metal working plants and simple processing plants;
power plants and accessory switching and transformer stations; water
treatment plants; sewage disposal plants; hospitals and ordinary
laboratories.
(C) Class C -- Permanent administrative and general service
buildings, permanent housing, roads, railroads, grading, sewers, storm
drains and water and power distribution systems.
(D) Class D -- Construction camps and facilities and other
construction of a temporary nature.
(iii) Operating capital. This factor includes consideration of the
level of the contractor's operating or working capital investment
required for effective contract performance. This level will vary,
depending on such circumstances as (A) the nature of the work and
duration of the contract, (B) contract type and dollar magnitude, (C)
the reimbursement or progress payment rate, (D) the contractor's
financial management practices, and (E) the frequency of and time lag
between billings and Government payments. Such circumstances should be
taken into account in determining what profit adjustment, if any, is
appropriate under this subfactor. When the contractor will invest
relatively few dollars for operating capital purposes (because of cost
reimbursement and progress payment rates, or when an advance payment
method (such as a letter of credit) is used to finance the contractor),
a negative adjustment may be appropriate.
(h) Productivity/Performance adjustment for follow-on contracts. (1)
One of the objectives of the DOE profit policy is to reduce costs needed
to achieve national energy goals by encouraging contractor investment in
modern cost-reducing facilities and other improvements in efficiency and
performance. To the extent that costs serve as the basis for pricing
(both cost and profit), success in reducing costs can serve in turn to
reduce the magnitude of prospective profit dollars on follow-on
contracts. For example, a cost-plus-award-fee contract may be awarda as
the first of two or more contracts required for a major energy program.
The incentive to increase productivity or performance and reduce cost
under the first contract works against the contractor on any follow-on
contracts because the reduced level of costs becomes a part of the basis
for pricing subsequent contracts. In order to mitigate the relative
loss of prospective profit dollars on a follow-on contract that occurs
when costs are reduced under the predecessor contract or contracts due
to productivity or performance gains, a special
''Productivity/Performance Reward'' may be included in the
prenegotiation profit objective of a pending follow-on acquisition under
certain circumstances.
(2) The ''Productivity/Performance Reward'' may be applied when all
of the following criteria are met:
(i) The pending acquisition is for a follow-on contract.
(ii) Reliable actual cost data relating to the predecessor contract
or contracts is available to establish a fair and reasonable cost
baseline.
(iii) Changes made in the configuration of the item being acquired or
in the technical aspects of the services being performed are not likely
to invalidate price comparability.
(3) The amount of productivity or performance reward for a given
follow-on contract is based on the estimated cost reduction on the
predecessor contract or contracts that can be attributed to productivity
or performance gains. Set forth below are principles and procedures
that apply to estimating cost reductions and calculating the
productivity or performance reward:
(i) The contractor shall prepare and support the cost reduction
estimate.
(ii) The overall contract cost decrease shall be based on estimated
decreases measured at the unit cost level, or equivalent.
(iii) The lowest average unit cost or its equivalent (exclusive of
profit) for a preceding performance period or production run shall serve
as the unit cost baseline.
(iv) A technique shall be employed to determine that portion of the
cost decrease attributable to productivity or performance gains as
opposed to other factors such as the effects of quality differences
between the base contract and the pending acquisition.
(v) When the parties agree that the estimated overall contract cost
decrease is materially affected by price level differences between the
base period and the current point in time, an economic price adjustment
may be applied to the estimate.
(vi) The reward shall be calculated by multiplying the contract cost
decrease due to productivity/performance gains by the base profit
objective rate.
(vii) The degree of review and validation of the data supporting the
reward calculation shall be commensurate with the materiality of this
profit element in relation to the overall price objective.
(4) There may be several methods advanced, by both contracting
officers and contractors, to quantify productivity/performance gains.
Any technique may be acceptable, provided it equitably takes into
account the principles and procedures listed above.
(49 FR 11955, Mar. 28, 1984, as amended at 56 FR 41964, Aug. 26,
1991)
915.971 Profit and fee-system for construction and construction
management contracts.
48 CFR 915.971-1 General.
(a) Business concerns awarded a DOE construction or construction
management contract shall be paid a profit or fee if requested or
solicited. The profit or fee objective for a construction or
construction management contract shall be an amount appropriate for the
type of effort contained therein. It is the intent of DOE to (1) reward
contractors based on the complexity of work, (2) reward contractors who
demonstrate and establish excellent records of performance and (3)
reward contractors who contribute their own resources, including
facilities and investment of capital.
(b) Standard fees or across-the-board agreements will not be used or
made. Profit or fee objectives are to be determined for each contract
according to the effort or task contracted for thereunder.
(c) Profit or fee payable on fixed-price and cost-reimbursable
construction or construction management contracts shall be established
in accordance with the appropriate procedures and schedules set forth in
this subpart.
48 CFR 915.971-2 Limitations.
Amounts payable under construction and construction management
contracts shall not exceed amounts derived from the schedules
established for this purpose. Requests to pay fees in excess of these
levels shall be forwarded to the Procurement Executive for review and
approval.
48 CFR 915.971-3 Factors for determining fees.
(a) The profit policy stated in 915.971-1(a) reflects, in a broad
sense, recognition that profit is compensation to contractors for the
entrepreneurial function of organizing and managing resources (including
capital resources), and the assumption of risk that all costs of
performance (operating and capital) may not be reimbursable.
(b) The best approach calls for a structure that allows judgmental
evaluation and determination of fee dollars for prescribed factors which
impact the need for, and the rewards associated with, fee or profit, as
follows.
(i) Management risk relating to performance, including the (A)
quality and diversity of principal work tasks required to do the job,
(B) labor intensity of the job, (C) special control problems, and (D)
advance planning, forecasting and other such requirements;
(ii) The presence or absence of financial risk, including the type
and terms of the contract;
(iii) The relative difficulty of work, including consideration of
technical and administrative knowledge, skill, experience and clarity of
technical specifications;
(iv) Degree and amount of contract work required to be performed by
and with the contractor's own resources, including the extent to which
the contractor contributes plant, equipment, computers, or working
capital (labor, etc.);
(v) Duration of project;
(vi) Size of operation;
(vii) Benefits which may accrue to the contractor from gaining
experience and know-how, from establishing or enhancing a reputation, or
from being enabled to hold or expand a staff whose loyalties are
primarily to the contractor; and
(viii) Other special considerations, including support of Government
programs such as those relating to small and small disadvantaged
business in subcontracting, energy conservation, etc.
(c) The total fee objective and amount for a particular negotiation
is established by judgmental considerations of the above factors,
assigning fee values as deemed appropriate for each factor and totaling
the resulting amounts.
(d) In recognition of the complexities of this process, and to assist
in promoting a reasonable degree of consistency and uniformity in its
application, fee schedules have been developed which set forth maximum
fee amounts that contracting activities are allowed to negotiate for a
particular transaction without obtaining prior approval of the
Procurement Executive. In addition, the fee negotiation objective
established in accordance with 915.971-3(a), (b), and (c) shall not
exceed the applicable fee schedule amounts without prior approval of the
Procurement Executive. To facilitate application to a contract, the fee
amounts are related to the total cost base which is defined as total
operating and capital costs.
48 CFR 915.971-4 Considerations affecting fee amounts.
(a) In selecting final fee amounts for the various factors in
915.971-3 of this section, the DOE negotiating official will have to
make several judgments as discussed in this subsection.
(b) Complexity of a construction project shall be considered by
analysis of its major parts. For a project which includes items of work
of different degrees of complexity, a single average classification
should be considered, or the work should be divided into separate
classifications. The following class identifications are appropriate
for proper fee determinations.
(1) Class A -- Manufacturing plants involving continuous closed
processes or other complicated operations requiring a high degree of
design layout or process control; nuclear reactors; atomic particle
accelerators; complex laboratories or industrial units especially
designed for handling radioactive materials.
(2) Class B -- Normal manufacturing processes and assembly operations
such as ore dressing, metal working plant and simple processing plants;
power plants and accessory switching and transformer stations; water
treatment plants; sewage disposal plants; hospitals; and ordinary
laboratories.
(3) Class C -- Permanent administrative and general service
buildings, permanent housing, roads, railroads, grading, sewers, storm
drains, and water and power distribution systems.
(4) Class D -- Construction camps and facilities and other
construction of a temporary nature.
(c) Normal management elements of principal tasks relating to a
construction contract cover several categories of tasks with differing
rates of application throughout the construction period. The principal
elements of management effort are outlined in this paragraph. Although
each project has a total management value equal to 100% for all
elements, the distribution of effort among the various elements will be
different for each project due to differences in project character or
size. The basic management elements and the normal range of efforts
expected to apply for a normal sized project are as follows. When the
normally expected effort will not be performed by a contractor, this
fact should be considered in arriving at appropriate fee amounts.
(d) Fee considerations dealing with the duration of a project are
usually provided by the consideration given to the degree of complexity
and magnitude of the work. In only very unusual circumstances should it
be necessary to separately weight, positively or negatively, for the
period of services or length of time involved in the project when
determining fee levels.
(e) The size of the operation is to a considerable degree a
continuation of the complexity factor, and the degree and amount of work
required to be performed by and with the contractor's own resources.
Generally, no separate weighting, positively or negatively, is required
for consideration of those factors.
(f) The degree and amount of work required to be performed by and
with the contractor's own resources affect the level of fees.
Reasonable fees should be based on expectations of complete construction
services normally associated with a construction or construction
management contract. In the case of a construction contract, reduced
services can be in the form of excessive subcontracting or supporting
acquisition actions and labor relation interfaces being made by the
government. If an unusual amount of such work is performed by other
than the contractor, it will be necessary to make downward adjustments
in the fee levels to provide for the reduction in services required.
(g) The type of contract to be negotiated and the anticipated
contractor cost risk shall be considered in establishing the appropriate
fee objective for the contract.
(h) When a contract calls for the contractor to use its own
resources, including facilities and equipment, and to make its own cost
investment (i.e., when there is no letter-of-credit financing), a
postive impact on the fee amount shall be reflected.
48 CFR 915.971-5 Fee schedules.
(a) The schedules included in this paragraph, adjusted in accordance
with provisions stated herein and 915.971-6, provide maximum fee levels
for construction and construction management contracts. The fees are
related to the estimated cost (fee base) for the construction work and
services to be performed. The schedule in paragraph (d) sets forth the
basic fee schedule for construction contracts. The schedule in
paragraph (f) sets forth the basic fee schedule for construction
management contracts. A separate schedule in paragraph (h) has been
developed (i) for determining the fee applicable to special equipment
purchases and (ii) to reflect a differing level of fee consideration
associated with the subcontractor effort under construction management
contracts. (See 915.971-6(c) and 915.971-6(d)).
(b) The schedules cited in paragraph (a) above provides the maximum
fee amount for a CPFF contract arrangement. If a fixed-price type
contract is to be awarded, the fee amount set forth in the fee schedules
shall be increased by an amount not to exceed 4 percent of the fee base.
(c) The fee schedule shown in paragraphs (d) and (f) assumes a letter
of credit financing arrangement. If a contract provides for or requires
the contractor to make their own cost investment for contract
performance (i.e., when there is no letter-of-credit financing), the fee
amounts set forth in the fee schedules shall be increased by an amount
equal to 5 percent of the fee amount as determined from the schedules.
(d) The following schedule sets forth the base for construction
contracts:
(e) When using the Construction Contracts Schedule for establishing
maximum payable basic fees, the following adjustments shall be made to
the Schedule fee amounts for (1) complexity levels, (2) excessive
subcontracting, (3) normal contractor services performed by the
government or another contractor:
(i) The target fee amounts, set forth in the fee schedule, shall not
be adjusted for a Class A project, which is maximum complexity. A Class
B project requires a 10 percent reduction in amounts. Class C and D
projects require a 20 percent and 30 percent reduction, respectively.
The various classes are defined in 915.971-4(b).
(ii) The target fee schedule provides for 45 percent of the contract
work to be subcontracted for such things as electrical and other
specialties. Excessive subcontracting results when such efforts exceed
45 percent of the total contract work. To establish appropriate fee
reductions for excessive subcontracting, the negotiating official should
first determine the amount of subcontracting as a percentage of the
total contract work. Next, the negotiating official should determine a
percentage by which the prime contractor's normal requirement (based on
a requirement for doing work with its own forces) is reduced due to the
excessive subcontracting and, finally, multiply the two percentages to
determine a fee reduction factor.
(iii) If acquisition or other services normally expected of the
contractor (see 915.971-4(c)) are performed by the government, or
another DOE prime or operating contractor, a fee reduction may also be
required. The negotiating official should first determine what
percentage of the total procurement or other required services is
performed by others. Then the negotiating official should apply this
percentage reduction to the normally assigned weightings for the
management services or effort as discussed in 915.971-4(c) to arrive at
the appropriate reduction factor.
(f) The following schedule sets forth the base for construction
management contracts:
(g) When applying the basic Construction Management Contracts
Schedule for determining maximum payable fees, no adjustments are
necessary to such payable fees for contractor Force account labor used
for work which should otherwise be subcontracted until such Force
account work exceeds, in the aggregate, 20 percent of the base.
Excessive use of Force account work results when such effort exceeds 20
percent of the fee base; and, when this occurs, appropriate fee
reductions for such excessive Force account labor shall be computed as
follows:
(1) Determine the percentage amount of Force account work to total
contractor effort.
(2) Determine the percentage amount of subcontract work reduced due
to the use of Force account work.
(3) Multiply the two percentages to determine the fee reduction
factor. It is not expected that reductions in the Construction
Management Contracts Schedule fee amounts will be made for complexity,
reduced requirements and similar adjustments as made for construction
contracts.
(h) The schedule of fees for consideration of special equipment
purchases and for consideration of the subcontract program under a
construction management contract is as follows:
(49 FR 11955, Mar. 28, 1984, as amended at 56 FR 28101, June 19,
1991)
48 CFR 915.971-6 Fee base.
(a) The fee base shown in the Construction Contracts Schedule and
Construction Management Contracts Schedule represents that estimate of
cost to which a percentage factor is applied to determine maximum fee
allowances. The fee base is the estimated necessary allowable cost of
the construction work or other services which are to be performed. It
shall include the estimated cost for, but is not limited to, the
following as they may apply in the case of a construction or
construction management contract:
(1) Site preparation and utilities.
(2) Construction (labor-materials-supplies) of buildings and
auxiliary facilities.
(3) Construction (labor-materials-supplies) to complete/construct
temporary buildings.
(4) Design services to support the foregoing.
(5) General management and job planning cost.
(6) Labor supervision.
(7) Procurement and acquisition administration.
(8) Construction performed by subcontractors.
(9) Installation of government furnished or contractor acquired
special equipment and other equipment.
(10) Equipment (other than special equipment) which is to become
Government property (including a component of Government property).
(b) The fee base for the basic fee determination for a construction
contract and construction management contract shall include all
necessary and allowable costs cited in paragraph (f)(2) as appropriate
to the type of contract; except, any home office G&A expense paid as a
contract cost per cost principle guidance and procedures shall be
excluded from the fee base. The fee base shall exclude:
(1) Cost of land.
(2) Cost of engineering (A&E work).
(3) Contingency estimate.
(4) Equipment rentals or use charges. (See 936.70.)
(5) Cost of government furnished equipment or materials.
(6) Special equipment as defined in 936.7201.
(c) A separate fee base shall be established for special equipment
for use in applying the Special Equipment Purchases or Subcontract Work
Schedule (see 915.971-5(h)). The fee base for determination of
applicable fees on special equipment shall be based on the estimated
purchase price of the equipment.
(d) The fee base under the Construction Management Contracts Schedule
for a maximum basic fee determination for a construction management
contract shall be comprised of only the costs of the construction
manager's own efforts. However, it is recognized that in the case of
construction management contracts, the actual construction work will be
performed by subcontractors. In most cases the subcontract awards for
the construction work will be made by the construction management
contractor. Occasionally the contract may involve management of
construction performed under a contract awarded by the Department or by
one of the Department's operating contractors. In these cases, the
actual cost of the subcontracted construction work shall be excluded
from the fee base used to determine the maximum basic fee (under the
Construction Management Contracts Schedule) applicable to a construction
management contract. A separate fee base for additional allowances
(using the Special Equipment Purchases or Subcontract Work Schedule)
shall be established, which shall be comprised of those subcontract
construction costs, special equipment purchases, and other items' costs
that are contracted for or purchased by the construction manager.
(49 FR 11955, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984)
48 CFR 915.972 Special considerations for cost-plus-award-fee contracts.
(a) When a contract is to be awarded on a cost-plus-award-fee basis
in accordance with 916.404-2, several special considerations are
appropriate. Fee objectives for management and operating contracts,
including those using the Construction or Construction Management fee
schedules from section 915.971-5, shall be developed pursuant to the
procedures set forth in section 970.1509-8. Fee objectives for other
cost-plus-award-fee contracts shall be developed as follows:
(1) The base fee portion of the fee objective of an award fee
contract may range from 0% up to the 50% level of the fee amount for a
Cost-Plus-Fixed-Fee (CPFF) contract, arrived at by using the weighted
guidelines or other techniques (such as those provided in 915.971 for
construction and construction management contracts). However, the base
amount should not normally exceed 50% of the otherwise applicable fixed
fee. In the event this 50% limit is exceeded, appropriate documentation
shall be entered into the contract file. In no event shall the base fee
exceed 60% of the fixed fee amount.
(2) The base fee plus the amount included in the award fee pool
should normally not exceed the fixed fee (as subjectively determined or
as developed from the fee schedule) by more than 50%. However, in the
event the base fee is to be less than 50% of the fixed fee, the maximum
potential award fee may be increased proportionately with the decreases
in base fee amounts.
(3) The following maximum potential award fees shall apply in award
fee contracts: (percent is stated as percent of fee schedule amounts).
(b) Prior approval of the Procurement Executive, is required for
total fee (base plus award fee pool) exceeding the guidelines in
915.972(a)(3). Additionally, in the event use of the award fee
guidelines exceeds the statutory limitations discussed in FAR
15.903(d)(1) (i), (ii) and (iii), prior approval of the Procurement
Executive shall also be required.
(49 FR 11955, Mar. 28, 1984, as amended at 56 FR 28101, June 19,
1991)
48 CFR 915.972 Subpart 915.10 -- Preaward, Award, and Postaward Notifications, Protests, and Mistakes
48 CFR 915.1003 Debriefings of unsuccessful offerors.
(a) Debriefings must be requested within 10 working days of receipt
of notification of elimination from consideration or announcement of
selection. Contracting officers shall advise unsuccessful offerors of
this limitation in such notification letter(s). Debriefings will be
provided at the earliest feasible time, which normally shall be after
announcement of the selection decision and prior to award of the
contract. However, when the exigency of the situation will not permit
delaying the award in order to debrief unsuccessful offerors, such
debriefing may be conducted after award of the contract. The
contracting officer, may if it is decided the facts justify such action,
receive and act upon a request received at a later date. Also see
924.202(b).
(49 FR 11955, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984.
Redesignated at 50 FR 12185, Mar. 27, 1985)
48 CFR 915.1003 PART 916 -- TYPES OF CONTRACTS
48 CFR 915.1003 Subpart 916.2 -- Fixed-Price Contracts
Sec.
916.203 Fixed-price contracts with economic price adjustments.
916.203-4 Contract clauses.
916.206 Fixed-ceiling-price contracts with retroactive price
redetermination.
916.206-3 Limitations.
916.207 Firm-fixed-price, level-of-effort term contracts.
916.207-3 Limitations.
48 CFR 915.1003 Subpart 916.3 -- Cost-Reimbursement Contracts
916.301-3 Limitations.
916.303 Cost-sharing contracts.
916.306 Cost-plus-fixed-fee contracts.
916.307 Contract clauses.
48 CFR 915.1003 Subpart 916.4 -- Incentive Contracts
916.404-2 Cost-plus-award-fee contracts.
916.405 Contract clauses.
48 CFR 915.1003 Subpart 916.6 -- Time-And-Materials, Labor-Hour, and
Letter Contracts
916.603 Letter contracts.
916.603-2 Application.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 11972, Mar. 28, 1984, unless otherwise noted.
48 CFR 915.1003 Subpart 916.2 -- Fixed-Price Contracts
48 CFR 916.203 Fixed-price contracts with economic price adjustments.
48 CFR 916.203-4 Contract clauses.
(d)(2) The Head of the Contracting Activity, or designee, for
contracts estimated to be within the limits of their delegated
authority, may approve the use of an economic price adjustment clause
when appropriate in accordance with FAR 16.203-4(d)(1).
48 CFR 916.206 Fixed-ceiling-price contracts with retroactive price redetermination.
48 CFR 916.206-3 Limitations.
(d) The Head of the Contracting Activity, or designee, for contracts
estimated to be within the limits of delegated authority, may approve
the use of a fixed-ceiling-price contract with retroactive price
redetermination.
48 CFR 916.207 Firm-fixed-price, level-of-effort term contracts.
48 CFR 916.207-3 Limitations.
(d) The Head of the Contracting Activity, or designee, for contracts
estimated to be within the limits of their delegated authority, may
approve the use of a firm-fixed-price, level-of-effort term contract in
excess of $100,000.
48 CFR 916.207-3 Subpart 916.3 -- Cost-Reimbursement Contracts
48 CFR 916.301-3 Limitations.
(c) The contracting officer shall execute the determination and
findings required by FAR 16.301-3(c). Local procedures may require
approval of the determination and findings at a level above the
contracting officer, but such approval is not a requirement of this
section. Such determination and findings shall be prepared using the
following format:
I hereby find that:
(1) The Department of Energy proposes to contract with (name of
proposed contractor) for (describe work, service, or product) (identify
program or project). The estimated cost is ($ ---- ) (if contract is
CPFF type, insert, ''plus a fixed fee of ($ ---- ) which is ---- percent
of the estimated cost exclusive of fee'').
(2) (Set forth facts and circumstances that show why it is
impracticable to secure property or services of the kind or quantity
required without the use of the proposed type of contract or why the
proposed method of contracting is likely to be less costly than other
methods.)
I hereby determine that:
On the basis of the above findings it is impracticable to secure the
property or services of the kind or quality required without the use of
a (insert contract type -------- ) type of contract, or the (insert
contract type -------- ) method of contracting is likely to be less
costly than any other method.
Date
(Signature)
(49 FR 11972, Mar. 28, 1984, as amended at 54 FR 27647, June 30,
1989)
48 CFR 916.303 Cost-sharing contracts.
(b) DOE cost participation policies and application are at Subpart
917.70, Cost Participation.
48 CFR 916.306 Cost-plus-fixed-fee contracts.
(c)(2) The head of the Contracting Activity, or designee, for
contracts estimated to be within their delegated authority, may approve
(sign) the determination and findings establishing the basis for
application of the statutory price or fee limitations.
48 CFR 916.307 Contract clauses.
(j) The contracting officer shall insert the clause at FAR 52.216-15,
Predetermined Indirect Cost Rates, modified as specified in 952.216-15
in solicitations and contracts when a cost-reimbursement research and
development contract with a State or local government is contemplated
and predetermined indirect cost rates are to be used.
48 CFR 916.307 Subpart 916.4 -- Incentive Contracts
48 CFR 916.404-2 Cost-plus-award-fee contracts.
(d) Fee Determination Plans. Award fee arrangements limited to
technical performance considerations are prohibited because they may
increase cost disproportionately to any benefits gained. Instead, the
award fee arrangement shall include both technical performance
(including scheduling as appropriate) and business management
considerations tailored to the needs of the particular situation. In
addition, in a situation where cost estimating reliability and other
factors are such that the negotiation of a separate predetermined
incentive sharing arrangement applicable to cost performance is
detemined both feasible and advantageous, cost incentives may be added.
The resulting contract would then be identified as a
cost-plus-incentive-fee/award-fee combination type. The goals and
evaluation criteria should be results-oriented. The award fee should be
concentrated on the end product of the contract, that is, output, be it
hardware, research and development, demonstration or services, together
with business management considerations. However, input criteria such
as equal employment opportunity, small business programs, functional
management areas, such as safety, security, etc., should not be
disregarded and may be appropriate criteria upon which to base some part
of the award fee. Specific goals or objectives shall be established in
relation to each performance evaluation criterion against which
contractor performance is measured.
48 CFR 916.405 Contract clauses.
(e) For other than management and operating contracts, award fee
contracts should include in the contract schedule the ARTICLES shown
below. The ARTICLES may be modified to meet individual situations and
any ARTICLE or specified requirement therein should be deleted when it
is not applicable to a given contract. If substantial changes are
believed appropriate, consultation with the Director, Office of Policy,
Headquarters, is advisable.
The estimated cost of this contract is $ (Insert Amount). A base fee
of $ (Insert Amount) is payable in accordance with the ARTICLE entitled
''Payment of Base and Award Fee.'' In addition, a maximum Award Fee of $
(Insert Amount) is available for payment in accordance with the ARTICLE
entitled ''Payment of Base and Award Fee.''
Base Fee. The government will make payment of the base fee in
(Insert Number) increments. The amount payable shall be based on the
progress as determined by the Contracting Officer and shall be subject
to any withholdings as may be provided for elsewhere in this contract.
Award Fee. The government will promptly make payment of any Award
Fee upon the submission, by the contractor to the Contracting Officer or
his authorized representative, of a public voucher or invoice in the
amount of the total fee earned for the period evaluated. Payment shall
be made without the need for a contract modification.
A. The government shall at the conclusion of each specified
evaluation period(s) evaluate the contractor's performance for a
determination of award fee earned. The contractor agrees that the
determination as to the amount of award fee earned will be made by the
government Fee Determination Official (FDO) and such determination
concerning the amount of award fee earned is binding on both parties and
shall not be subject to appeal under the ''Disputes'' clause or to any
other appeal clause.
B. It is agreed that the evaluation of contractor performance shall
be in accordance with the Performance Evaluation Plan referenced in the
ARTICLE entitled ''Performance Evaluation Plan'' and that the contractor
shall be promptly advised in writing of the determination, and the
reasons why it was or was not earned. It is further agreed that the
contractor may submit a self-evaluation of performance for each period
under consideration. While it is recognized that the basis for
determination of the fee shall be the evaluation by the government, any
self-evaluation which is received within (Insert Number) days after the
end of the period being evaluated, may be given such consideration, if
any, as the FDO shall find appropriate.
C. The FDO may, in his sole discretion, specify in any fee
determination that fee not earned during the period evaluated may be
accumulated and be available for allocation and/or ''Distribution of
Award Fee'' shall be adjusted to reflect such allocations.
A. A contractor Performance Evaluation Plan upon which the
determination of award fee shall be based, including the criteria to be
considered under each area evaluated and the percentage of award fee, if
any, available for each area, will be unilaterally established by the
government. A copy of the plan shall be provided to the contractor
(Insert Number) calendar days prior to the start of the first evaluation
period.
B. The Performance Evaluation Plan shall set forth the criteria upon
which the contractor will be evaluated for performance relating to any
(1) Technical including Schedule requirements if appropriate, (2)
Management, and (3) Cost Functions selected for evaluation.
C. The Performance Evaluation Plan may, consistent with the contract,
be revised unilaterally by the government at any time during the period
of performance. Notification of such changes shall be provided to the
contractor (Insert Number) calendar days prior to the start of the
evaluation period to which the change will apply.
A. The total amount of award fee available under this contract is
assigned to the following evaluation periods in the following amounts:
Evaluation Period
Available Award Fee
B. In the event of contract termination, either in whole or in part,
the amount of award fee available shall represent a pro-rata
distribution associated with evaluation period activities or events as
determined by the Fee Determination Official.
The contract clauses required for cost reimbursement contracts should
be modified for use under award fee contracts as cited below:
(i) The words ''base fee and award fee'' should be substituted for
the term ''fixed-fee'' where it appears in the clause at FAR 52.243-2,
Changes.
(ii) The words ''base fee'' should be substituted for the word
''fee'' where it appears in the clauses at FAR 52.232-20, Limitation of
Costs, and FAR 52.232-22, Limitation of Funds.
(iii) The words ''base fee, if any, and such additional fee as may be
awarded as provided for in the schedule'' should be substituted for the
term ''fee'' wherever it appears in the clause at FAR 52.216-7,
Allowable Cost and Payment.
(49 FR 11972, Mar. 28, 1984, as amended at 54 FR 48614, Nov. 24,
1989)
48 CFR 916.405 Subpart 916.6 -- Time-And-Materials, Labor-Hour, and
Letter Contracts
916.603 Letter contracts.
48 CFR 916.603-2 Application.
(c) In accordance with FAR 16.603-2(c), a letter contract shall
provide for definitization of the contract not more than 180 days after
the date of award or after completion of 40 percent of the work to be
performed, whichever occurs first, unless approved in advance by the
Procurement Executive.
(d) In accordance with FAR 16.603-2(d), the amount of funds obligated
under a letter contract shall not exceed 50 percent of the estimated
cost of the definitive contract unless approved in advance by the
Procurement Executive.
(f) Letter contract awards should be reported in the Procurement and
Assistance Data System as soon after award as possible. Should it be
necessary to modify a letter contract prior to its definitization, such
actions shall be handled and reported as formal modifications as they
occur. The actual definitization of the letter contract in turn, shall
be accomplished by formal modification and be reported as such.
48 CFR 916.603-2 Part 917
48 CFR 916.603-2 PART 917 -- SPECIAL CONTRACTING METHODS
48 CFR 916.603-2 Subpart 917.5 -- Interagency Acquisition Under the
Economy Act
Sec.
917.502 General.
917.504 Ordering procedures.
917.505-70 Reimbursement by DOE.
917.505-71 Cost-reimbursement standards.
48 CFR 916.603-2 Subpart 917.6 -- Management and Operating Contracts
917.600 Scope of subpart.
917.604 Identifying management and operating contracts.
917.605 Award, renewal, and extension.
48 CFR 916.603-2 Subpart 917.70 -- Cost Participation
917.7000 Scope of subpart.
917.7001 Policy.
917.7002 Application.
917.7003 Amount of cost participation.
917.7004 Disposition of property and equipment furnished or acquired.
917.7005 Records.
917.7006 Payments under contracts with third party cost
contributions.
917.7007 In-kind contributions.
48 CFR 916.603-2 Subpart 917.71 -- Special Research Contracts With
Educational Institutions
917.7100 Scope of subpart.
917.7101 Definitions.
917.7102 General.
917.7103 Research program objectives.
917.7104 Other objectives.
917.7105 Unsolicited research proposals.
917.7106 Selection, preparation, and award.
917.7106-1 General.
917.7106-2 Responsibilities.
917.7106-3 Review of research proposals.
917.7106-4 Compensation for personal services of professional staff.
917.7106-5 Notice of selection or rejection.
917.7106-6 Selection of field office.
917.7106-7 Information to be furnished to field office.
917.7106-8 Changes in scope and level.
917.7106-9 Notification of contract execution.
917.7107 Contract content.
917.7107-1 General.
917.7107-2 Financial requirements.
917.7108 Personal property.
917.7108-1 Transfer of title to equipment to nonprofit educational or
research institutions.
917.7108-2 Acquisition of excess Government personal property.
917.7108-3 Management of Government-owned equipment.
917.7108-4 Reports.
917.7109 Reporting requirements.
917.7109-1 Purpose of reports.
917.7109-2 Notice of Energy R&D Project.
917.7109-3 Progress reports.
917.7109-4 Technical reports.
917.7109-5 Special reports.
917.7109-6 Final report.
917.7109-7 Summary and distribution of reports.
917.7110 Dissemination of results.
917.7110-1 Prompt dissemination.
917.7110-2 Publication.
917.7111 Extension of contracts.
917.7111-1 Renewal proposals.
917.7111-2 Evaluation of requests for renewals.
917.7111-3 Authorization to renew.
917.7112 Administration.
917.7112-1 Responsibilities of program offices.
917.7112-2 Responsibilities of field offices.
917.7112-3 Payments under special research contracts.
917.7112-4 Approval of deviations in performance and other specified
actions.
917.7112-5 Auditing.
917.7112-6 Security.
917.7113 Format for Special Research Contracts (SRC) with educational
institutions/or other nonprofit institutions.
48 CFR 916.603-2 Subpart 917.72 -- Program Opportunity Notices for
Commercial Demonstrations
917.7200 Scope of subpart.
917.7201 Policy.
917.7201-1 General.
917.7201-2 Determination to use and approval of content.
917.7201-3 Federal support criteria.
917.7201-4 Information to be included in program opportunity notices.
917.7201-5 Information to be provided in proposals offered pursuant
to program opportunity notices.
917.7202-1 Forms of assistance and participation.
917.7202-2 Cost participation.
917.7203 Method and criteria for evaluation and selection.
917.7204 Award or support.
917.7205 Unsolicited proposals for commercial demonstrations.
917.7206 Optional two-step method.
48 CFR 916.603-2 Subpart 917.73 -- Program Research and Development
Announcements
917.7300 Scope of subpart.
917.7301 Policy and prerequisites.
917.7301-1 General.
917.7301-2 Determination to use and approval of content.
917.7301-3 Information to be included.
917.7301-4 Information to be provided in proposals.
917.7302 Cost participation.
917.7303 Method and criteria for evaluation and selection.
917.7304 Award or support.
48 CFR 916.603-2 Subpart 917.74 -- Acquisition, Use, and Disposal of
Real Estate
917.7400 Scope of subpart.
917.7401 General.
917.7402 Policy.
917.7403 Application.
917.7404 Competition.
48 CFR 916.603-2 Subpart 917.75 -- Multiple Awards -- Phased
Acquisitions
917.7500 Scope of subpart.
917.7501 RFP provisions.
917.7502 Evaluation.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 11974, Mar. 28, 1984, unless otherwise noted.
48 CFR 916.603-2 Subpart 917.5 -- Interagency Acquisition Under the Economy Act
48 CFR 917.502 General.
The Head of the Contracting Activity shall make the determination
prescribed in FAR 17.502.
48 CFR 917.504 Ordering procedures.
(b) DOE Form 1270.1, Order for an Interagency Acquisition, shall be
used for interagency acquisitions. The order shall include an
attachment addressing, as a minimum, the items listed at FAR 17.504(b)
and the following:
(6) The parties to the interagency acquisition.
(7) Order number and/or modification number.
(8) Period covered by the interagency acquisition.
(9) Cost estimate of the interagency acquisition and the amount of
funds to be provided by DOE including:
(i) The total etimated cost of the work for the period of time
specified in the order;
(ii) The capital equipment, if any, approved for purchase under the
subject acquisition; and
(iii) Limitations, if any, on the reimbursement of costs by DOE.
If DOE participates with another agency or agencies in sponsoring a
project, the amount of contribution to be made by each agency and the
basis for distributing the costs incurred shall be specified.
(10) Termination provisions that allow DOE to terminate the
interagency acquisition upon 30 days written notice to the servicing
agency. In the event of a termination, DOE may reimburse the servicing
agency for costs actually incurred to the effective date of termination
and for any commitments extending beyond the termination date (but not
exceeding the expiration date of the order) that the servicing agency is
unable to cancel.
(11) Appropriate patent provisions which recognize DOE's mission of
achieving widespread availability and competitive commercial utilization
of the benefits of DOE-funded research, development, and demonstration
activities. Specific wording will vary depending on the agency and
acquisition involved and must be obtained from the cognizant DOE patent
counsel.
(12) Reporting requirements and technical data provisions, if
appropriate, which require that technical reports prepared under the
order to freely exchanged and made available for public sale, unless
classified. Two copies of technical reports must be sent to the DOE
Office of Scientific & Technical Information (OSTI), P.O. Box 62, Oak
Ridge, TN 37830.
(13) Financial reports as determined by the contracting officer.
(14) Security provisions of 952.204, if appropriate, for those
interagency acquisitions requiring access to/or generating classified
information. (Revisions to the DEAR clauses will be required to effect
the appropriate relationship between the servicing agency and DOE.)
(52 FR 38424, Oct. 16, 1987)
48 CFR 917.505-70 Reimbursement by DOE.
(a) Payment methods to reimburse the servicing agency shall be
specified in the interagency acquisition. Such specified payment
methods shall be coordinated with the servicing finance officer to
ensure that they are consistent with current Department of Treasury
Regulations as implemented by DOE.
(b) A consolidated working fund advance shall be used to finance
small or medium construction projects or the acquisition of goods or
services of lesser value from the servicing agency within the same
fiscal year in which the advance is made, only after a determination has
been made that the reimbursement basis is not to be used.
(c) An appropriation transfer shall be used to finance larger
construction projects or the acquisition of more costly goods or
services from the servicing agency where the work will extend beyond the
fiscal year in which the transfer is made, only after a determination
has been made that the reimbursement basis is not to be used.
(49 FR 11974, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984, as amended
at 52 FR 38424, Oct. 16, 1987)
48 CFR 917.505-71 Cost-reimbursement standards.
(a) Incurred cost necessary or incident to the performance of the
work of servicing agencies are to be considered allowable for
cost-reimbursement purposes. Such costs include direct and, where
applicable, indirect costs:
(b) Direct costs are the costs that can be directly identified with
work under the acquisition. Examples of such costs are salaries and
wages, technical services, materials, travel, transportation,
communications, and any facilities and equipment expressly approved for
purchase under the interagency acquisition.
(c) Indirect costs shall be limited to the properly allocable portion
of costs that cannot be charged directly to the work, but can be shown
as mutually benefiting the effort covered by the interagency agreement
as well as other work of the servicing agency. Justification for any
such charges shall be required, and the basis of allocation must be
reasonable. Where interagency acquisitions are entered into under
authority of section 601 of the Economy Act of 1932, the servicing
agency's charge for any indirect costs may include appropriately
allocable charges for ''general administration'' or ''central agency
overhead,'' but only to the extent specified in the acquisition.
(d) The servicing agency shall be responsible for maintenance,
safeguarding, control, and accounting of capital equipment (items of
equipment expected to have an extended period of service, generally a
year or more and generally having a value of $1,000 or more) in a manner
satisfactory to DOE. DOE reserves the right of first refusal for any
capital equipment acquired under the interagency acquisition at
completion or termination of the interagency acquisition.
(e) Unless authorized by the contracting officer in advance, the
servicing agency shall not be reimbursed for the acquisition or
condemnation of real property or any facility or plant construction or
expansion.
(49 FR 11974, Mar. 28, 1984, as amended at 52 FR 38424, Oct. 16,
1987)
48 CFR 917.505-71 Subpart 917.6 -- Management and Operating Contracts
48 CFR 917.600 Scope of subpart.
This subpart implements FAR Subpart 17.6, Management and Operating
Contracts. DOE implementing procedures and requirements to be followed
in the selection, award, and administration of Management and Operating
Contracts are at Part 970.
48 CFR 917.604 Identifying management and operating contracts.
(a) Single purpose contracts for the operation of process development
units, pilot plants, and demonstration plants where the purpose is to
demonstrate the viability of processes toward the goal of
commercialization are not considered to be included, unless designated
operating contracts in accordance with FAR 17.602.
48 CFR 917.605 Award, renewal, and extension.
(b) The decision to extend or compete management and operating
contracts requires advance Headquarters' approval. The Head of the
Contracting Activity will submit a memorandum that recommends either
extending or not extending a management and operating contract. This
memorandum of recommended action, together with attachments supporting
it, will be submitted at least 18 months prior to expiration of the
contract. The attachments shall include the following information:
(1) A full and complete justification of the recommendation that is
made; i.e., either to obtain competition or to extend the contract
without obtaining competition. This justification must address the
policy stated in FAR 17.605.
(2) A statement of the present contractor's overall performance since
award of the contract, or if previously extended, since Headquarters'
last authorized extension of the contract. This should be supported by
a detailed summary of the most recent appraisal of the contractor's
performance.
(i) The technical appraisal shall include data which indicates the
contractor's success or failure in meeting established program goals and
objectives during the appraisal period. It is recognized that in some
cases, the contracting office will not have the technical staffing
necessary to perform an appraisal of the scientific and technical work
under the contracts they are administering, as in the case with the
contracts for the operation of DOE's national laboratories. When this
is the situation, the contracting office shall obtain the necessary
technical appraisal information from the appropriate Headquarters'
program division(s) for incorporation into the overall management
appraisal.
(ii) The cost appraisal shall include data that indicates the
contractor's success or failure in controlling both direct and indirect
costs.
(iii) Where the contract is a cost-plus-award-fee (CPAF) or similar
arrangement, include a discussion of award fee experience since the date
that the contract was last extended, showing the basic fee, award fee
pool, award fee appraisals, and award fee earned.
(iv) A separate appraisal shall be made of the contractor's
performance in assuring consideration of environmental, safety, health,
energy conservation and security in operating the facility and
development of products.
(3) The justification for use of the contract type contemplated,
including discussion of consideration given to use of the CPAF type
contract.
(4) Summary description of scope of work and brief listing of some of
the important projects which have been performed under this contract. A
list of any important projects planned for assignment in the future
should be included as well as the current institutional planning
documents if applicable or other documents that indicate the area of
work to be performed during the contract period.
(5) The actual cost expenditures and fee or management allowance over
the past contract period and expected costs in the future.
(6) While a copy of the proposed contract document should not be
submitted with the recommendation, Headquarters should be advised of the
following:
(i) Any special or unique features (with brief supporting rationale)
in the existing contract expected to be continued in either the
extension of the existing contract or in the replacement contract. This
shall include any provisions which deviate from standard clauses.
(ii) An outline of the principal issues to be negotiated if the
contract is extended, with arguments pro and con, and with a recommended
position. This should include the identification of any anticipated
problem areas for which Headquarters guidance is needed and should also
include a justification for any clauses which deviate from standard
clauses and continued use of deviations granted in the past.
(d) If Headquarters makes the decision to extend the existing
contract without obtaining competition, the contracting officer will be
authorized by the Head of the Agency to negotiate an extension to the
contract. The contracting officer shall submit the negotiated contract
to Headquarters for the approval of the Procurement Executive prior to
execution. The proposed contract document shall be accompanied by the
following:
(1) A complete justification as required above;
(2) A summary of the major clauses of the proposed contract with
particular attention to indemnity, patents, and conduct of work
(including clauses concerning control over work and termination). Any
deviations from current FAR and DEAR policies or standard contract
clauses should be identified with the reasons therefore;
(3) A listing of any significant changes from the existing contract.
(49 FR 11974, Mar. 28, 1984, as amended at 56 FR 28102, June 19,
1991)
48 CFR 917.605 Subpart 917.70 -- Cost Participation
48 CFR 917.7000 Scope of subpart.
(a) This subpart sets forth the DOE policy on cost participation by
organizations performing research, development, and demonstration
projects under DOE prime contracts. This subpart does not cover efforts
and projects performed for DOE by other Federal agencies.
(b) Cost participation is a generic term denoting any situation where
the Government does not fully reimburse the performer for all allowable
costs necessary to accomplish the project or effort under the contract.
The term encompasses cost sharing, cost matching, cost limitation
(direct or indirect), participation in kind, and similar concepts.
48 CFR 917.7001 Policy.
(a) When DOE supports performer research, development, and
demonstration efforts, where the principal purpose is ultimate
commercialization and utilization of the technologies by the private
sector, and when there are reasonable expectations that the performer
will receive present or future economic benefits beyond the instant
contract as a result of performance of the effort, it is DOE policy to
obtain cost participation. Full funding may be provided for early
phases of development programs when the technological problems are still
great.
(b) In making the determination to obtain cost participation, and
evaluating present and future economic benefits to the performer, DOE
will consider the technical feasibility, projected economic viability,
societal and political acceptability of commercial application, as well
as possible effects of other DOE-supported projects in competing
technologies.
(c) The propriety, manner, and amount of cost participation must be
decided case-by-case.
(d) Cost participation is required for demonstration projects unless
exempted by the Under Secretary. Demonstration projects, pursuant to
this subpart, include demonstrations by technological advances and field
demonstrations of new methods and procedures, and demonstrations of
prototype commercial applications for the exploration, development,
production, transportation, conversion, and utilization of energy
resources.
48 CFR 917.7002 Application.
(a) The DOE cost participation policy set forth in 917.7001 applies
to all prime contracts to the extent stated therein.
(b) Cost participation is not contemplated in contracts for the
operation of Government-owned or leased, contractor-operated facilities
or continuing cost-reimbursement type contracts for mission-oriented,
large-scale research programs performed, using equipment or facilities
which are either partially or wholly Government-owned.
(c) Potential benefits to a performer is less likely where basic
research is involved and therefore cost participation, if any, is
expected to be less than in circumstances where a product is being
developed. As projects or proposed efforts reach stages approaching
commercial viability, cost participation should be based on the overall
project risk.
(d) Except for demonstration projects, the requirement for a cost
participation contract in accordance with 917.7001 may be waived by the
cognizant Program Assistant Secretary where it is determined that
payment of the full allowable cost of the contractual effort is in the
best interests of the Government.
(e) The performer's cost participation may be provided by other
companies or associations with which it has contractual arrangements to
perform the project. The fact that a project is jointly funded, e.g.,
where DOE and an industry association fund a third party performer, does
not preclude cost participation by the performer.
48 CFR 917.7003 Amount of cost participation.
(a) Cost participation may be in various forms or combinations, which
includes but is not limited to cash outlays, real property, or interest
therein, needed for the project, personal property or services, cost
matching, foregone fee, or other in-kind participation. Cost
participation may include the value of contributions of other
non-Federal sources, provided the contributions were not previously
obtained free of charge from Federal sources. The value of any noncash
contribution shall be established by DOE after consultation with the
performer. Cost participation may be accomplished by a contribution to
either direct or indirect costs provided such costs are otherwise
allowable in accordance with the cost principles of the contract.
Allowable costs which are absorbed by the performer as its share of cost
participation may not be charged directly or indirectly to the Federal
Government under other contracts, agreements, or grants.
(b) Organizations should contribute a reasonable amount of the total
project cost covered under the contract. The ratio of cost
participation should correlate to the apparent advantages available to
performers and the proximity of implementing commercialization. In
setting the levels of cost participation by the performer, the
contracting officer, in consultation with the program office, should
consider such factors as:
(1) The availability of the technology to the performer's
competitors;
(2) The risks involved in achieving commercial success;
(3) The length of time before the project is likely to be
comnmercially successful;
(4) Improvements in the performer's future commercial competitive
position;
(5) Disposition of property at project's end;
(6) Whether the potential benefits will be lessened if the performer
lacks production or other capabilities with which to capitalize the
results of the project. However, if the results of the project are
transferable to commercial organizations with production capabilities,
and the performing organization would obtain patent of other property
rights which could be sold or licensed, this should be considered; and
(7) Whether the performing organization lacks adequate non-Federal
sources of funds from which to make cost participation.
(c) The manner of cost participation and how it is to be accomplished
shall be set forth in the contract.
(d) The handling of any return from sale of products from the project
shall be set forth in the contract.
(e) The solicitation document shall state whether any cost
participation is required and may set forth a target level of cost
participation. Though technical considerations are normally most
important the degree of cost participation will be considered when cost
to the Government is to be a major factor in a selection decision.
(f) Unsolicited proposals will be considered on a case-by-case basis
by the program office, in consultation with contracting officer, as to
the appropriateness of cost participation. If cost participation is
considered to be appropriate, guidance for determining an appropriate
level may be included in the procurement authorization package. The
extent and type of cost participation is subject to negotiation,
however.
(g) The extent to which a performing organization contributes to the
cost of a project will be taken into consideration in the allocation of
patent rights under DOE's waiver policy.
(h) Fee or profit will not be paid the performer under a cost
participation contract. Foregone fee or profit will be considered in
establishing the degree of cost participation.
(i) Where cost participation is appropriate, fee or profit will not
be paid to any member of the proposing team having a substantial and
direct interest in the project. Competitive subcontracts placed with
the prior written consent of the contracting officer and subcontracts
for routine supplies and services are not covered by this prohibition.
48 CFR 917.7004 Disposition of property and equipment furnished or
acquired.
Disposition instructions for any property and equipment furnished or
acquired using Federal funds during performance shall be set forth in
the contract.
48 CFR 917.7005 Records.
Contracts which provide for cost participation shall require the
contractor to maintain records adequate to reflect the nature and extent
of their cost contribution as well as those costs charged to DOE. Such
records shall be subject to audit by DOE.
48 CFR 917.7006 Payments under contract with third party cost
contributions.
Arrangements between DOE and non-Government organizations for jointly
sharing the cost of projects performed by third party contractors shall
provide that each party to the cost sharing agreement shall pay its
share of program costs directly to the performing contractor. Any
alternative arrangement must be approved in advance by the Controller or
designee.
48 CFR 917.7007 In-kind contributions.
(a) In-kind contributions represent noncash contributions provided by
the performing contractor or a non-Federal third party who is
participating with DOE in a co-sponsored project or contract. In-kind
contributions may be in the form of personal property (equipment and
supplies), real property (land and buildings) or services which are
directly beneficial, specifically identifiable and necessary to
performance of the project or program.
(b) In-kind contributions proposed to the DOE as part of a
performer's cost participation must meet all of the following criteria
before acceptance:
(1) Be verifiable from the performer's books and records, if
performer donated;
(2) Not be included as contributions for any other Federal program;
(3) Be necessary to effective and efficient accomplishment of project
objectives;
(4) Provide for types of charges that would otherwise be allowable
under applicable Federal cost principles appropriate to the contractor's
organization; and
(5) Not be paid for by the Federal Government under any contract,
agreement or grant, unless specifically authorized by legislation.
(c) In-kind contributions accepted from a performer will be valued as
set forth below provided the established values do not otherwise exceed
fair market values.
(1) Where the Government receives title to donated land, buildings,
equipment or supplies and the property is not fully consumed during
performance of the co-sponsored project, the property's in-kind value
should be established based on the performer's booked cost (i.e.,
acquisition cost less depreciation, if any) at the time of donation. In
the event the booked costs reflect totally unrealistic values when
compared to current market conditions, another appropriate value may be
established if supported by an independent appraisal of the fair market
value of the donated property or property in similar condition and
circumstance.
(2) The value of any services or the use of personal or real property
donated by a performer should be established, when necessary to do so,
in accordance with generally accepted accounting policies and the
appropriate Federal cost principles applicable to the performer's
organization.
(d) Values established for in-kind contributions accepted from a
non-Federal third party should be reasonable and shall not exceed the
fair market value of the item at the time of donation. Specific
requirements for selected in-kind items involving third party donors are
as follows:
(1) Donated Employee Services. Employee services donated by a
non-Federal third party shall be valued at the employee's regular rate
of pay (exclusive of fringe benefits and indirect costs) provided the
donated services require use of the same skills for which the employee
is normally paid. Otherwise, the rate of pay, for valuation purposes,
shall be consistent with the rates paid for similar work in the labor
market in which the performer competes for such skills.
(2) Volunteer Services. Rates used to value volunteered personal
services of professional, clerical, or other individuals should be
consistent with those regular rates paid by the performer for similar
work and be established in accordance with the procedures specified in
subparagraph (1) above.
(3) Property. Values for personal or real property, or the use
thereof, donated by a non-Federal third party shall be established,
dependent upon the donor's intended disposition of the property upon
project completion, as follows:
(i) When title is donated at no cost to the Government or the
property will be fully consumed during project performance, a reasonable
value not in excess of the fair market value of the donated property, or
comparable property in similar condition, shall be established provided
the fair market value of land or buildings is established by an
independent appraisal.
(ii) When title is retained by the donor or acquired by the
performer, reasonable usage values not in excess of the fair rental
value of the donated property or comparable property shall be
established provided the fair rental value of donated space is
established by an independent appraisal.
48 CFR 917.7007 Subpart 917.71 -- Special Research Contracts With Educational Institutions
48 CFR 917.7100 Scope of subpart.
This subpart sets forth policies and procedures applicable to the
negotiation and administration of Headquarters-designated special
research contracts for basic research with educational or other
nonprofit institutions. These policies and procedures should also be
followed for Headquarters-designated contracts for applied research with
educational institutions and for educational and training activities
with educational or other nonprofit institutions. The policy of
reimbursing only DOE's share of actual costs up to a ceiling should be
reflected in all contracts with educational institutions. The
procedures in this subpart regarding acceptance of unsolicited proposals
from educational institutions and use of the special research contracts
may be used only when the annual DOE support does not exceed $1,000,000.
If the annual DOE support exceeds $1,000,000, or a determination is
made under the provisions of Pub. L. 95-224 that a grant or cooperative
agreement is to be used as the instrument for providing support
regardless of the dollar amount, then a special research contract may
not be used. If the annual DOE support exceeds $1,000,000, and a
contract is determined to be the instrument to provide such support, an
appropriate type contract will be used in accordance with FAR 16, with
clauses as prescribed in 952 and FAR 52 and the coverage of 917.7108.
48 CFR 917.7101 Definitions.
Headquarters-designated contract means a special research contract
which results from an authorization to a field office from a
Headquarters office to enter into or continue such a contract on the
basis of an approved research proposal.
Contractor means the educational or nonprofit research organization
which enters into a contract with DOE for the performance of specified
research.
Research proposal means a request by or an unsolicited proposal as
defined in FAR 15.501 from an institution for support of a research
project, together with a detailed description of the project and its
relationship to DOE's program, and detailed information as to background
and experience of principal investigators, facilities, and environment
of the institution, and cost and cost-sharing arrangements, if any.
48 CFR 917.7102 General.
The DOE, by statute, is permitted to participate in research programs
that are related to atomic and other forms of energy.
48 CFR 917.7103 Research program objectives.
(a) Under sections 31 and 31a of the Atomic Energy Act of 1954, as
amended, DOE is directed to exercise its powers in such manner as to
ensure the continued conduct of research and training activities and to
assist in the acquisition of an ever-expanding fund of theoretical and
practical knowledge in the following fields:
(1) Nuclear processes;
(2) The theory and production of atomic energy, including processes,
material, and devices related to such production;
(3) Utilization of special nuclear material and radioactive material
for medical, biological, agricultural, health, or military purposes;
(4) Utilization of special nuclear materials, radioactive material,
and processes entailed in the utilization or production of atomic energy
or such material for all other purposes, including industrial and
commercial uses, the generation of usable energy and the demonstration
of advances in the commercial or industrial application of atomic
energy;
(5) The protection of health and the promotion of safety during
research and production activities; and
(6) the preservation and enhancement of a viable environment by
devleoping more efficient methods to meet the nation's energy needs.
48 CFR 917.7104 Other objectives.
(a) Headquarters-designated special research contracts are entered
into by negotiation under the authority of section 31c of the Atomic
Energy Act of 1954 and section 302(c)(5) of the Federal Property and
Administrative Services Act of 1949. In planning, negotiating, and
administering such contracts, the objectives are to:
(1) Assure a continuing flow of new knowledge in fields related to
the responsibilities of DOE;
(2) Respect the traditions of the contracting institution and
encourage the quest for new knowledge without restrictions or scientific
initiative, to the extent compatible with the laws and the protection of
the public interest;
(3) Provide reasonable levels of support which will increase the
national capability in energy fields and enable the contracting
institution to strengthen its research programs in areas of interest to
DOE; and
(4) Maintain effective contact with the scientific community so that:
(i) Scientists and students will be encouraged to expand their
interests in fields of importance to DOE;
(ii) The scientific strength of the country can be brought to bear
more effectively on DOE problems;
(iii) The DOE will be continuously aware of developments of value to
its activities in the academic communities; and
(iv) An adequate supply of suitably trained scientists will be
available for employment to meet energy program needs.
(b) The contractor is responsible for conducting the research and is
expected to carry out the project or projects in a manner consistent
with the agreed-upon objectives and requirements. These include the
obligation to comply with applicable laws and regulations. The
contractor is generally expected to follow its normal business practices
and to use its existing accounting system.
48 CFR 917.7105 Unsolicited research proposals.
Unsolicited proposals for DOE assistance may be initiated by
scientists interested in doing research. Prior to submitting proposals,
the interested scientists, at his or her initiative may discuss the
project informally with DOE.
Following such discussions, the proposal should be submitted in
accordance with FAR Subpart 15.5 and 915.506 of this chapter. If the
DOE desires to solicit proposals, the procedures in 917.73 or other
existing solicitation procedures will be used.
48 CFR 917.7106 Selection, preparation, and award.
48 CFR 917.7106-1 General.
In order to maintain a comprehensive and well-integrated research
program, evaluation of research proposals and selection of educational
institutions to conduct scientific research is centralized in
Headquarters program office. However, field offices may be assigned
responsibility for handling the final arrangements and nontechnical
administration of such contracts.
48 CFR 917.7106-2 Responsibilities.
(a) The program office interested in particular research is
responsible for evaluating the technical aspects of the proposals. The
program office must determine that the proposal has sufficient technical
merits and program value in comparison to other available proposals to
justify providing support. This includes judgments as to the merit of
the proposed research objectives, the probability of achieving the
objective(s), the capabilities of the researchers, and how the proposals
will specifically promote the objectives in 917.7103 and 917.7104. The
program office also reviews the proposer's requested cost and other
estimates to determine the reasonableness, the propriety, and the
advisability of proceeding with the project. Specifically, Senior
Program Officials or their designees at Headquarters are responsible
for:
(1) Selecting and approving research proposals and determining the
amount to be funded;
(2) Documenting the rationale for funding in accordance with (a) of
this section;
(3) Assuring that the statement of work is clear and complete;
(4) Providing a copy of the documents prepared in (a)(2) and (3) to
the field office;
(5) Reviewing the items in the proposal budget or itemized account of
the proposed work, and, if necessary, requesting the assistance of the
appropriate field office;
(6) Determining the ownership of property;
(7) Reviewing and following the technical progress of the work;
(8) Providing contractors with the technical guidance and direction
as may be required to meet broad program objectives; and
(9) Keeping the field offices fully informed of technical
correspondence and discussions with contractors that may have
contractual or non-technical administrative implications.
(b) Field offices are responsible for the consummation of contracts
with the institution in accordance with directives from the program
office, and for administering and making payments under such contracts.
Specifically, field offices are responsible for:
(1) Performing any necessary cost or price analysis, obtaining audit
service when needed, and negotiation of budget and contract terms;
(2) Finalizing and executing the contract (where necessary, obtaining
further instructions from the program office);
(3) Administering the contract in accordance with its terms and
conditions and making payments thereunder; and
(4) Providing technical and administrative assistance requested by
program officials.
48 CFR 917.7106-3 Review of research proposals.
(a) If, in the judgment of the program office, an appraisal from
representatives of the scientific community is required, reviewers may
be selected on the basis of their familiarity with either the field of
research or the competence of the investigator. See also 924.70.
(b) Occasionally, the program office may find it necessary to obtain
additional information from the research institution or to visit the
site. In some cases, the comments, assistance, or participation of
staff members of the appropriate field office will be requested.
(c) At the time it reviews a research proposal, the sponsoring
program office shall review the prospective contractor's budget or
itemized account of the proposed work and activities and the materials,
equipment, and facilities involved, for the purpose of reaching mutual
understanding of the estimated cost of the research and the other major
aspects of the contemplated contract. Questions about the cost elements
that required further investigation may be referred to the appropriate
field office when the contract is authorized.
(d) When reviews are conducted by representatives who are not
Government employees, the policies for avoidance of organizational
conflicts of interest in 909.5 shall be followed.
48 CFR 917.7106-4 Compensation for personal services of professional
staff.
Compensation for personal services of professional staff must be in
accordance with Office of Management and Budget Circular A-21, revised.
The certification required by Appendix C of 917.7113 fulfills the
certification requirement of section K of OMB Circular A-21 for the
special research contract.
48 CFR 917.7106-5 Notice of selection or rejection.
The program office shall notify the proposer of the decision to fund
or reject the proposal. In the event of a decision to fund, this
notification shall advise: (a) That the proposal has been selected for
funding subject to completion of a satisfactory contract; (b) which
field office will negotiate and execute the contract; and (c) that DOE
assumes no obligation until a contract has been executed. A copy of the
notice of acceptance or rejection shall be sent to the field office
concerned. The notice shall indicate the basis for rejection and shall
constitute DOE's record of action for the files. If the proposal is
accepted, a justification shall be prepared in accordance with
917.7106-2.
48 CFR 917.7106-6 Selection of field office.
(a) When the program office has determined that a proposal shall be
funded, a field office shall be requested to make the final arrangements
with the institution concerned. Usually the field office geographically
nearest to the research institution will be selected, but occasionally
other factors such as existing contractual relationships and location of
the research project will make the selection of some other field office
desirable.
(b) Traineeship agreements under the nuclear science and engineering
traineeship program are exempt from the policy in (a) and shall continue
to be assigned to the Oak Ridge Operations Office. Research contracts
with foreign educational institutions shall be assigned to the Chicago
Operations Office.
(c) Any transfers of assignments between field offices will be
accomplished when the particular contract is next renewed or otherwise
modified.
48 CFR 917.7106-7 Information to be furnished to field office.
The sponsoring program office shall provide the Contracting Activity
with an authorizing directive early enough (generally 60 days) to permit
timely completion of the contract award before the work is scheduled to
start. The following shall be furnished:
(a) A copy of the detailed proposal and any modifications;
(b) Copies of correspondence with the research institution that are
pertinent to the completion of the negotiation or that have some
specific significance as to the preliminary review of arrangements made
with the institution; and
(c) An authorizing directive which:
(1) Authorizes the execution of a special research of contract for a
specified term, with DOE support limited to a specified amount or a
specified percentage of costs up to a specified support ceiling;
(2) Summarizes the background of the proposal and any pertinent
discussion not reflected in the papers attached to the memorandum;
(3) Indicates the extent to which the scope of the work proposed has
been approved;
(4) Indicates the principal investigator and other necessary details;
(5) Determines the availability of legal authority to transfer title
to property and indicates the total estimated cost of the research and
other major aspects of the contract, by reference to the proposal or
otherwise;
(6) Indicates whether title to property to be acquired under the
contract is to be vested in DOE or the contractor;
(7) Indicates whether restricted data or other classified information
is likely to be used or developed in the course of the work and such
classification and security determination as may be appropriate;
(8) Indicates directions for special reports, if any;
(9) Gives such additional information as may assist the field office
in negotiating the contract; and
(10) Designates the appropriate organizational unit and individual in
the program office that will have technical cognizance over the work
under the contract.
48 CFR 917.7106-8 Changes in scope and level.
After a contract has been authorized by the program office but prior
to execution, the field office shall not approve any significant change
in technical scope, funding, specified result, performance, principal
investigator, or other major aspects of the work without prior approval
of the program office.
48 CFR 917.7106-9 Notification of contract execution.
Promptly after execution of a contract, the program office shall be
notified of such action.
48 CFR 917.7107 Contract content.
48 CFR 917.7107-1 General.
A standard outline (format) for a special research contract for
research performed in facilities owned and controlled by the contractor
(as distinguished from Government-owned or Government-controlled
facilities), is set forth in 917.7113. This document is intended to
provide a vehicle by which research tasks can be accomplished with a
minimum of administrative effort. It is, therefore, important that such
contracts be written so as to assure the complete understanding of the
parties as to the job to be performed and the financial and
administrative details connected therewith. Of special consideration is
the nature of research contracting as contrasted to the acquisition of
supplies and activities of a production nature. Wide latitude in the
conduct of research by the institutions is generally desirable and the
standard contract forms are designed to permit such latitude in the
establishment of the rights and obligations of the parties.
48 CFR 917.7107-2 Financial requirements.
(a) The special research contract outlined in 917.7113, is generally
used for basic research with educational institutions when the annual
DOE support under the contract does not exceed $1,000,000. It provides
that DOE's monetary obligations will be a specified amount, which is
referred to as the support ceiling, or a lower adjusted amount (referred
to as the cumulative support cost) if actual costs chargeable to DOE
during the total period of the contract are less than expected. The
ceiling on DOE's monetary support shall be determined and established as
a support ceiling at the outset of the initial contract period.
(1) The total contract period of performance should be established
based upon the estimated period of performance necessary to accomplish
the research effort. If available funding is less than that needed to
fully fund the effort, the available funding will be provided as the
cumulative Government cost as defined at Article A-III(b) of 917.7113
with the remainder of the funding subject to the availability of funds.
(2) In such circumstances the standard Special Research Contract
format provided at 917.7113 shall be revised at Article II, The Period
for Performance, to indicate the period of time for which the available
funding is estimated to suffice and at Article A-III to show the
additional funding to be provided subject to the availability of funds.
(b) If the parties agree to extend the contract for an additional
period or periods of performance, the ceiling on the DOE's funding
(Government ceiling) shall be increased to reflect any increased support
by reason of the extended period or periods. The costs chargeable to
the DOE (Government cost) will be reported for each pertinent period of
the contract specified in Appendix A (generally an annual period) in
accordance with paragraphs (b), (c), and (d) of this section, and the
Government cost determined for each such period will be accumulated for
all periods of performance, as will the Government ceiling.
(1) The monetary obligation to the contractor will not exceed the
cumulative Government cost or the accumulated Government ceiling,
whichever is less.
(2) Upon termination, or expiration of the total period of
performance, the contractor must refund to DOE, or make such other
disposition as the contracting officer may direct, any funds advanced in
excess of the cumulative Government cost incurred under the contract.
Payment shall be made in consideration of the contractor's performance
of research activities described in the contract and in accordance with
the provisions of the contract.
(3) The contractor shall have the right to discontinue performance of
research under the contract, upon written notice to the contracting
officer, at any time when or after the total costs chargeable to DOE
equal or exceed the cumulative Government cost or the Government ceiling
whichever is less.
(4) Certain deviations in performance and other actions require the
contracting officer's approval as stated in 917.7113. Among other
approval requirements, the contractor must obtain the contracting
officer's approval to incur costs for items set forth in Article
A-II(a), during the pertinent period stated in Appendix A, in excess of
110 percent of the total estimated cost specified in Article A-III for
the specific period. In those cases in which there is to be
proportionate sharing of costs, the percent of the cost to be borne by
DOE will be set forth in Article A-III of the agreement (see paragraph
(d) of this section).
(c) The contractor shall be required to furnish a certified statement
(within three months after the expiration of the pertinent contract
period set forth in 917.7113, Appendix A and at the termination of or
expiration of the contract), signed by an authorized official, showing
the total cost, Government cost, and contractor's contribution, if any,
for the prior contract period. The format for this report is found in
917.7113, Appendix C.
(d)(1) It is expected that in many cases the contractor will propose
to contribute to the cost of the research work. Such contribution shall
be set forth in Appendix A of the contract, either as items under (b) or
(c) of Article A-II which will be contributed solely by the contractor
without charge to DOE, or as a proportionate cost-sharing agreement in
Article A-III which will provide that the contractor will charge DOE
only a specified percentage of the actual cost incurred from items under
(a) of Article A-II.
(2) Proposed contractor contributions should ordinarily be listed
under (b)(1) of Article A-II when:
(i) The contribution is that of the principal investigator or other
senior personnel who are likely to be involved in the research work to
the same extent whether their cost is included in or excluded from
proportionate cost sharing;
(ii) The proposed contribution to the work is being paid for by a
third party; e.g., personnel or equipment, the cost of which is being
reimbursed under another contract or grant from public or private
sources; and
(iii) The proposed contribution does not involve any cash expenditure
by the contractor.
(3) Only those items, the cost of which is to be charged to DOE or
proportionately shared by the parties, should be listed under Article
A-II(a). Proportionate sharing of the cost of items under Article
A-II(a) should be provided for only when the contractor agrees to pay a
specified percentage of the cost of all such items, and when such
sharing is expected to be of financial benefit to DOE.
(4) In those cases in which there is to be proportionate
cost-sharing, the contractor should generally be encouraged to continue
the same sharing ratio througout the life of the contract so as to
provide for ease of administration and to avoid difficulties in
determining proper charges to DOE. It should be understood that the DOE
will pay only the specified percentage of the actual cost of items under
Article A-II(a) incurred during the pertinent period specified in
Appendix A, up to a maximum of 110 percent of the estimated Government
cost set forth in Article A-III for the pertinent period unless
otherwise specifically approved by DOE and subject to the Government
ceiling set forth in Article III.
(e)(1) If the contractor proposes to contribute the cost of the
principal investigator(s) on the project and requests that the
contribution be excluded from A-II(b), the contributed time or effort
should be shown in A-II(d). The contractor shall not be required to
maintain records regarding the amount of effort contributed by the
principal investigator, and the contractor shall not be required to
certify, in accordance with Appendix C of the contract, the amount of
effort contributed by the principal investigator.
(2) The principal investigator may be included in Article A-II(a) for
purposes of obtaining reimbursement of costs during the summer months,
and excluded from Article A-II(a) for academic year if the contractor
proposes to contribute the costs for that period. The contract
generally will not require the contractor's commitment that any
particular amount of time or effort by the principal investigator(s) or
other personnel will be devoted to the work.
(3) In the event a proposed contractor contribution is included in
Article A-II(b)(1), the contract should reflect the nature and extent of
the contractor's intent to contribute the item, and the contractor shall
maintain records adequate to permit DOE to determine the extent of the
contribution. The contractor must certify, in accordance with Appendix
C of the contract, the extent to which the item or items under Article
A-II(b)(1) have been contributed.
(4) Government-owned property to be procured, fabricated, or
furnished under Article IV or Article B-IX of the contract and other
Government-furnished equipment, supplies, materials, or services should
be excluded from Article A-II(a) and listed under Article A-II(b)(2).
(f) When the special research contract outlined at 917.7113 is used
for nonprofit organizations other than educational institutions:
(1) Article B-XXIX, Determination of Support Cost, should be revised
to provide that the nonprofit cost principles (Subpart 931.7) will be
used in determining actual cost, or
(2) Revised at the direction of the cognizant Headquarters office to
provide for a lump-sum payment to the contractor in consideration for
its performance of particular research at a specified level of effort.
(g) The special research contract outlined in 917.7113 may also be
used to fund research at educational institutions in foreign countries;
when so used:
(1) The outline of 917.7113 may be revised at the discretion of the
cognizant Headquarters or field office, to provide for a lump-sum
payment to the foreign institution in consideration of its performance
of particular research at a specified level of effort.
(2) Approval requirements shall be limited to those consistent with
the nature of the support to the foreign institution.
(3) All such contracts with foreign institutions shall provide that
any unused funds available to the foreign institutions at the end of the
contract shall be used in a renewal period, returned to the DOE, or
otherwise disposed of, in accordance with instructions from the
contracting officer.
917.7108 Personal property.
48 CFR 917.7108-1 Transfer of title to equipment to nonprofit
educational or research institutions.
(a) In accordance with Pub. L. 95-224, DOE has discretionary
authority, where it is deemed to be in furtherance of the objectives of
DOE to vest in nonprofit institutions of higher education or nonprofit
organizations whose primary purpose is the conduct of scientific
research, without further obligation to the Government or on such other
terms and conditions as may be appropriate, title to equipment purchased
or fabricated with contract funds.
(b) It is deemed to be in the furtherance of the objectives of DOE,
pursuant to Pub. L. 95-224, to vest in those educational and nonprofit
institutions title to equipment purchased or fabricated with contract
funds for research. This will promote the progress of scientific
research, reduce the amount of expense and unnecessary labor due to the
necessity for maintaining records, transporting, or storing such
property which is often unsuitable for any other use. Contracting
officers (coordinating with program officials) shall impose such terms
or conditions as they determine to be appropriate in individual cases.
(c) The vesting of title to equipment, fabricated or purchased for
work to support a SRC shall be as follows:
(1) Contracts with nonprofit institutions of higher education or
nonprofit organizations whose primary purpose is the conduct of
scientific research, shall provide that title to equipment having an
acquisition cost of less than $1,000 and purchased or fabricated with
contract funds available for the conduct of basic and applied research
rest in the contractor at acquisition, provided prior approval of the
purchase is obtained from the contracting officer. This prior approval
may be in the form of an approved budget which calls out the equipment
to be acquired, either on a line-item basis or for clearly defined
classes of items, or by other means, as long as the contracting officer
can determine that the proposed acquisition is essential to the
performance of the contract. Title to such equipment shall vest in the
contractor upon acquisition or as soon thereafter as feasible.
(2) Contracts with those institutions cited in (1) of this section
shall provide that title to equipment having an acquisition cost of
$1,000 or more, and purchased with contract funds available for the
conduct of basic and applied research, shall vest in the institution
upon acquisition or as soon thereafter as feasible without further
obligation to the Government, unless it is determined not to be in
furtherance of the objectives of DOE and is provided for in the
contract. The contract may reserve the right of the Government to
transfer title of equipment costing $1,000 or more per unit to the
Government or to a third party named by the Government, at any time
prior to final payment under the contract.
(d) When title to equipment is vested in the institution as provided
in this subsection, the institution shall not be reimbursed for any
depreciation, amortization, or use charges with respect to such
equipment under any Government contract, cooperative agreement, grant or
any subcontract under a Government contract.
(e) The determination to vest title in the institution under this
subsection will be provided by the cognizant program office on the
procurement request, or other appropriate document.
(f) In addition to the authority referred to in paragraph (a) of this
subsection, the Atomic Energy Act of 1954, as amended, authorized DOE to
vest title to items of equipment and other personal property in a
contractor when the transfer serves a nuclear programmatic purpose.
When applicable programmatic determination to transfer title to the
institution will be provided by the cognizant program office and made a
part of the official contract file.
48 CFR 917.7108-2 Acquisition of excess Government personal property.
(a) The utilization of certain items of excess Government personal
property by educational institutions is encouraged in the interest of
conserving funds otherwise designated for similar items of property in
existing research contracts or agreements with such institutions.
Excess Government personal property includes all types of equipment and
materials, used or new, which are owned by the Federal Government and
are no longer needed by the holding Federal agency, but have additional
useful life.
(b) Consistent with GSA regulations, excess personal property may be
furnished to a contractor (with or without transfer of title) upon
authorization by DOE, provided a determination is made that acquisition
will result in a reduction in the cost to the Government of the
contract. This procedure will not normally be used for the acquisition
of general purpose equipment (e.g., desks, typewriters, air
conditioners).
(c) Contractors shall be advised they may obtain information
concerning the availability of certain kinds of equipment or materials
by requesting the contracting officer to include them on the GSA mailing
list for excess property catalogs. When an item of equipment or
material is selected, the contractor should reserve it by notifying the
cognizant GSA office and confirming the reservation in writing.
Availability is usually on a first-come, first-serve basis, but GSA will
give preference in a competing situation to those agencies which do not
vest title to property in the contractor. The contractor should then
submit a Standard Form 122, Transfer Order Excess Personal Property, to
the cognizant DOE office, accompanied by a written justification of
need, including the estimated cost of acquisition (e.g., packing,
shipping, installation, rehabilitation, etc.), signed by the principal
investigator and an authorized administration official. The written
justification shall contain a statement as to whether or not the
contractor desires title to the property under the authority of the
Atomic Energy Act and 917.7108-1(g). If the acquisition is approved, the
DOE office shall forward the SF-122 to the appropriate GSA office with a
notation as to whether or not DOE intends to vest title to the property
in the contractor. A copy of the approved SF-122 with the notation
regarding the vesting of title shall be returned to the contractor.
When the property is received, the contractor shall forward to the DOE
office a receipted copy of the SF-122 which lists the items of property.
(d) In those instances where the contractor's acquisition of title
has been approved by DOE, title to the property shall pass to the
contractor when the receipted SF-122 is received by the DOE office,
pursuant to Article B-IX(b), Property Items, of 917.7113. Contract funds
may be used to pay for necessary costs of packing, transportation,
installation, rehabilitation, and maintenance, if required.
(e) In those instances where the contractor did not desire title or
where the cognizant DOE office has determined that title to the excess
property should remain in the Government, the property will be handled
as Government property in accordance with Article B-IX of 917.7113.
48 CFR 917.7108-3 Management of Government-owned equipment.
When title to equipment is retained by the Government, the
institution shall be required to establish and maintain a program for
the utilization, maintenance, repair, protection, preservation, and
reporting of Government property in accordance with sound business
practice and the provisions of FAR Subpart 45.5 and 945.5 of this
chapter.
48 CFR 917.7108-4 Reports.
Excess property acquired from other Government agencies or from GSA
and provided to institutions under the authority of 917.7108-2, above,
will be included in the report required by FPMR 41 CFR 101-43.4701(c).
48 CFR 917.7109 Reporting requirements.
48 CFR 917.7109-1 Purpose of reports.
Research reports from contractors are necessary to show the progress
achieved under projects receiving DOE funding. In many instances, the
research reports are of value in making information available to
scientists working on closely allied problems.
48 CFR 917.7109-2 Notice of Energy R&D Project.
Immediately after a special research contract is negotiated, a Notice
of Energy R&D Project, DOE Form 538, which summarizes the purpose and
scope of the project should be prepared by the contractor and sent to
the contracting officer, the program manager, and the technical
information officer. Annual updates are required.
48 CFR 917.7109-3 Progress reports.
Progress reports are required which should briefly describe the scope
of investigations undertaken and the significant results obtained. They
should also explain any significant differences between the actual level
of activity (expressed in the various categories of labor-months,
facilities acquired, travel performed, etc.) and that contemplated in
the contract.
48 CFR 917.7109-4 Technical reports.
Technical reports, reprints, and articles prepared for publication
during the period covered by the contract shall be required to be listed
with bibliographic references. Reprints of all such material not
previously submitted to the DOE shall be required to be appended and
material contained in them need not be duplicated in the report.
48 CFR 917.7109-5 Special reports.
Special reports or additional progress, status, or topical reports
shall be requested as required by program officials or submitted as
deemed necessary by the contractor. For example, brief status reports
shall be requested when developments are of immediate interest or when a
significant point in the investigation has been reached. The value
relative to the costs incurred in providing special reports must be
considered when requesting any additional reports.
48 CFR 917.7109-6 Final report.
A final report summarizing the entire investigation shall be required
from the contractor upon expiration of each contract. Satisfactory
completion of a contract will be contingent upon the receipt of this
report. The final report should follow the outline agreed upon for
progress reports, or when a project has extended over a long period of
time, the final report may refer to previously submitted technical
reports for details and may be a synopsis of the entire project.
Manuscripts prepared for publication should be appended.
48 CFR 917.7109-7 Summary and distribution of reports.
(a) A table summarizing the various types of reports, time for
submission, number of copies and distribution is set forth below. The
distribution and schedule of reports shall be as prescribed in this
table, unless the authorizing program office specifies otherwise.
Frequently, an annual progress report and a 200-word summary are
sufficient for fundamental research, but additional reporting may be
required in many cases. All reports shall be prepared by the contractor
and submitted to the appropriate field office for distribution. The
field office shall transmit these reports with a cover memorandum
indicating: (1) The other DOE offices receiving the documents; (2) the
name of the contractor; and (3) the contract number. Each copy of the
documents shall bear the contract number.
(b) The DOE contracting officer shall inform the contractor which
types of documents are to be transmitted to TIC. For each document so
identified, the contractor shall send an additional copy to the
contracting officer for transmittal to TIC, accompanied by one copy of
DOE Form 427.
(c) The research effort shall be prefaced by an informative abstract
of no more than 200 words.
(d) A listing of technical reports, articles, and reprints and the
appendage of reports not previously submitted are required.
917.7110 Dissemination of results.
48 CFR 917.7110-1 Prompt dissemination.
Prompt dissemination of research results to the scientific community
is encouraged. Publication in open literature is recognized as the
normal and most desirable means for reporting the findings of
unclassified fundamental research. Although DOE reserves the right to
utilize, and have others utilize, to the extent it deems appropriate,
the reports resulting from research contracts, DOE will attempt, to the
maximum extent practicable and consistent with the Government's best
interest, to permit the institutions and the authors to effect their own
publication in established technical journals.
48 CFR 917.7110-2 Publication.
(a) Contractors should be urged to publish results through normal
publication channels. As a further inducement, page charges or other
printing assessments for publishing articles in recognized scientific
journals, or any additional costs incurred in obtaining a limited supply
of reprints of articles, shall be considered an appropriate budget item
under contracts receiving DOE support where:
(1) The document reports work funded by the Government;
(2) The charges are levied impartially on all research papers
published by the journal, whether by non-Government or by Government
authors;
(3) Payment of such charges is in no sense a condition for acceptance
of manuscripts by the journal;
(4) The journals involved are not operated for profit; and
(5) The author does not receive an emolument for the research paper.
(b) A credit line shall be included in any such publication to
indicate that the research has been funded, in whole or in part, by DOE.
A patent check shall be made in advance of release to the public of any
material prepared for publication.
(c) The contractor or principal investigator may publish contract
data as approved by DOE in accordance with the provisions of the Patent
Rights clause.
48 CFR 917.7111 Extension of contracts.
48 CFR 917.7111-1 Renewal proposals.
(a) Where additional time, beyond the current expiration date, is
required to continue or complete the work under a special research
contract, the contractor shall be requested to submit six copies of its
renewal proposal to the contracting officer not later than four months
nor earlier than six months before the date of expiration of the
contract. If a renewal proposal has not been received four months prior
to the contract expiration date, the contracting officer shall determine
if a renewal proposal is to be submitted and take necessary action for
contract close-out or processing the renewal proposal as appropriate.
(b) The renewal proposal shall outline and justify a program and
budget for the succeeding year, showing in detail the estimated cost of
the project, together with an indication of the items for which the
contractor is requesting reimbursement or proportionate cost-sharing,
the percentage of any such costs to be shared by the contractor, and any
items to be contributed solely by the contractor. It should include the
same type of information as that required for initial proposals, or
reference this information to the extent contained in earlier proposals.
Any contemplated change in program or scope for the ensuing period
should be justified and explained clearly, and the cost estimates and
other items should be based upon past experience. Any deviation from
the contract which has not received DOE approval should be explained in
detail.
(c) The renewal proposal should include a financial statement of the
work under the current contract including:
(1) Total project costs for the current period to date, indicating
the amount chargeable to DOE;
(2) An estimate of the total costs to be incurred during the
remainder of the current contract period, indicating the amount
chargeable to DOE;
(3) The anticipated difference, if any, between the accumulated
support cost at the end of the current contract period and the
cumulative Government ceiling; and
(4) A footnote to show the estimated amount of outstanding
commitments for property at the end of the current contract period.
48 CFR 917.7111-2 Evaluation of requests for renewals.
(a) Requests for renewals are required to be evaluated by the
appropriate program office in the light of:
(1) Progress reports submitted by the contractor;
(2) Research results published in scientific media;
(3) Field visits to the research site by technical personnel;
(4) Contractor's performance and progress;
(5) Continued relevance to DOE's mission;
(6) Scientific and technical merit of the research and a comparison
of the relative importance of the project in relation to other research
proposals, proposed and ongoing; and
(7) Availability of funds.
(b) Requests for renewals generally follow the same process of review
and evaluation of technical aspects, funding, and preparation, and
execution of the contract, and administration as a new project, although
less use would normally be made of outside consultants.
(c) Contracts authorized by program offices shall not be extended for
a new term or on an interim basis or modified in scope without specific
prior authorization from the appropriate program office except as
provided at 917.7111-3(c).
48 CFR 917.7111-3 Authorization to renew.
(a) When a determination has been made to extend a special research
contract, the sponsoring program office is required to provide the
contracting officer with notification 60 days in advance of expiration
to permit an orderly completion of the extension before the expiration
date. The authorizing directive generally should include the same type
of information provided in the authorization of a new contract,
including pertinent information concerning any changes in scope of work,
level of funding, scheduled dates for completion of certain phases of
work, target dates for submission of report, etc. The directive will
describe the results of the prior funding period and what is expected to
be accomplished in the new funding period.
(b) An authorization to renew a special research contract shall state
the estimated total cost of items to be included under Article A-II(a)
of Appendix A for the renewal period, the percentage of such costs to be
reimbursed by DOE, and the amount of new funds authorized to increase
the Government ceiling.
(c) The field office that has administrative jurisdiction of an
existing contract may extend the term of an existing contract without
authorization from the cognizant program office, provided that:
(1) Any such extension does not provide for an increase in DOE's
monetary obligation under the contract;
(2) The scope of work is not revised by such extension;
(3) Such extension is necessary to permit completion of the scope of
work authorized by Headquarters, including preparation of required
reports; and
(4) Any such extension will not be for a period in excess of 90 days.
48 CFR 917.7112 Administration.
48 CFR 917.7112-1 Responsibilities of program offices.
(a) Technical representatives of program offices will make, to the
extent practicable, periodic site visits. A written summary of the
results of all visits will be prepared and filed promptly. Copies of
such reports shall be forwarded to the contracting officer whenever they
contain information of administrative interest or other information
pertinent to the assigned responsibilities of the Contracting Activity.
These visits are for the purpose of:
(1) Determining that the research is being performed in accordance
with the contract;
(2) Ascertaining that schedules are being met to ensure timely
submission of interim and final reports;
(3) Determining whether the project has adequate facilities,
equipment, and scientific, technical, and other personnel for the
specified research;
(4) Ascertaining that any equipment requested for purchase is not
reasonably available within the institution;
(5) Assisting the principal investigator to clarify specific
technical aspects as work progresses;
(6) Exploring future budget requirements, but without making any
commitments as to future funding level; and
(7) Obtaining information regarding the status of work for
administrative and technical purposes of the program sponsor.
(b) Program offices will provide guidance to the contracting offices
in connection with:
(1) Any contractor requests for approval of proposed deviations or
other actions requiring DOE approval which are brought to their
attention by Contracting Activity, or which have been brought to their
attention through site visits, progress reports, or other agreements or
contacts with the contractor;
(2) Increasing the obligational authority under any special research
contracts;
(3) Whether or not required contractor reports are satisfactory; and
(4) The renewal or close-out of contracts. Instructions should be
provided at least four weeks prior to the expiration date of a contract.
48 CFR 917.7112-2 Responsibilities of field offices.
Field offices are responsible for the following:
(a) Assisting Headquarters program offices, as requested, in carrying
out the functions set forth in 917.7112-1;
(b) Performing the necessary administrative functions required by the
terms of the contract, and making payments in accordance with the
contract;
(c) Bringing to the attention of the appropriate Headquarters
offices:
(1) Any contractor requests for approval which are required by the
contract;
(2) The upcoming expiration date of a contract whenever required
instructions on renewal or close-out have not been received on a timely
basis;
(3) Any request by a contractor to revise an established stipulated
salary support amount, and any notification by a contractor that is
reducing the charges under the stipulated salary support procedure (see
917.7106-4(c)); and
(d) Determining whether to use Pub. L. 95-224 or the Atomic Energy
Act of 1954, as amended, as the authority for vesting title to personal
property in the contractor when authorized to do so pursuant at
917.7106-7(c)(6). Pub. L. 95-224 shall be used to the maximum extent
consistent with the authority contained therein.
48 CFR 917.7112-3 Payments under special research contracts.
(a) Payments will be made to contractors under a special research
contract in accordance with its provisions (see Article B-XI of
917.7113). The letter-of-credit procedures, as provided for in Treasury
Fiscal Requirements Manual, Part 6, Chapter 2000, shall be used to the
maximum extent feasible when the total of DOE contracts and agreements
with advance financing to an institution provides for a continuing
annual level of support of $120,000 or more. When the total DOE
contracts and agreements with advance financing provide for a continuing
annual level of support of less than $120,000, DOE shall make advance
payments covering the first 90 percent of the amount of the new funds as
set forth in Article A-III(b) of the contract. The contracting officer
may revise Article B-XI of 917.7113, regarding the timing and amounts of
advance payments, in accordance with the following provisions.
(1) The advance payments may be made at times and in amounts
determined appropriate provided that no single payment will exceed 45
percent of the new funds as set forth in Article A-III(b) of the
contract for the pertinent period except on the basis of a request from
the contractor evidencing that a specified amount is required in
connection with expenditures or commitments made under the contract.
(2) The timing and amounts of payments should be determined on the
basis of limiting the amount of advances to the extent feasible,
consistent with effective and efficient administration and performance
of the research, for the purpose of slowing the rate of cash withdrawals
from the Treasury and thereby decreasing the financing costs to the
Federal Government.
(3) In determining the timing and amounts of payments, consideration
should be given to funds already available to the contractor, the
expected expenditures under the contract, any information from the
contractor regarding the need for funds, and the administrative cost of
additional payments.
(b) If the contract is to be extended for an additional period of
performance with additional funding, there may be paid at the time of
execution of the extension, the amount withheld from the expiring period
which, when added to the payments already made, does not exceed the new
funds set forth in Article A-III(b) for the expiring period. The final
payment under both of the procedures referred to in paragraph (a) of
this section shall be made on the basis of determinations by the
contracting officer that: (1) The required reports are satisfactory;
(2) the research was performed in accordance with the provisions of the
contract; (3) an additional payment is required to reimburse for all
costs chargeable to DOE; and (4) an appropriate patent clearance has
been obtained. If necessary in making these determinations, the
contracting officer should obtain advice from technical personnel. It
is expected that the annual progress and final reports and the
contractor's certified cost statements will provide an adequate basis
for making the required determinations. If the determinations cannot be
made on the basis of the reports, visits to and other contacts with the
research project during the contract period, and the contractor's
certified statements, and the contracting officer determines that the
contractor has not satisfied the contractual undertakings, appropriate
steps shall be taken to protect the Government's interest.
48 CFR 917.7112-4 Approval of deviations in performance and other
specified actions.
(a) Contractors should be advised to inform the contracting officer
as soon as possible of contemplated deviations and other proposed
actions which require DOE approval. Specific deviations and approval
actions include the following:
(1) A change of the principal investigator, co-investigator, or other
key people as might be named in the contract, or continuation of the
research work for any period in excess of three months without direction
by an approved principal investigator. The principal investigator may
increase or decrease the amount of effort which he devotes to the
project without obtaining the contracting officer's approval; however,
a representative of the institution shall consult with the appropriate
Headquarters program representative if the principal investigator plans
to, or becomes aware that he will, devote substantially less effort to
the work than anticipated in Article A-I. The purpose of such
consultation will be to determine what effect, if any, the anticipated
change will have on the research work and what modification to the
contract, if any, may be appropriate.
(2) A change in the phenomenon or phenomena under study (i.e., broad
category of the research under the contract) requires the specific
written approval of the contracting officer; ordinarily such changes,
if approved by the contracting officer, will be accomplished through a
new contract or modification. The contractor may change the specific
objectives in the research work described in the contract, provided it
gives the contracting officer prompt notification of such changes; and
the contractor may continue to follow the new objectives while DOE
determines whether it wishes to continue the program under the changed
approach. Significant changes in methods or procedures employed in
performing the research should be reported in the first technical
progress report issued subsequent to the changes.
(3) Acquisition of an item of equipment not itemized in the contract,
the cost of which is $1,000 of more. Approval is not required if the
equipment is merely a different model of an item listed in the contract.
If plant and capital equipment funds are provided for the acquisition
of equipment, with title to be vested in the Government, the total cost
of such equipment shall not exceed the amount provided for such
equipment unless prior approval has been obtained.
(4) Purchase of any general-purpose equipment, such as office
equipment or furniture, air conditioning, etc., not specifically
provided for in 917.7113, Appendix A of the contract will require prior
approval.
(5) Incurring costs for items set forth in Article A-II(a), during
the pertinent contract period stated in 917.7113, in Appendix A, in
excess of 110 percent of the total estimated cost specified in Article
A-III. Charges to DOE for any such costs incurred with approval of the
contracting officer shall also be subject to the limitations of Article
III.
(6) Any proposed foreign travel (defined as any travel outside of
Canada and the United States and its territories and possessions) if
requires prior approval.
(7) Expenditures for domestic travel if such expenditures exceed the
amount shown in Article-II(a) for such travel by $500 or by 25 percent,
whichever is greater, requires prior approval.
(8) Acquisition of excess personal property.
(9) Such other items as, in the judgment of the program office or the
contracting officer, in specific cases need to be separately identified
in the contract. (When plant and capital equipment funds are provided
for the acquisition of Government property, the program offices shall
require that such funds be used only for acquiring the equipment
designated in the contract, unless prior approval has been obtained.)
(b) The contracting officer will present (in any manner considered
appropriate) all such requests for approval to the cognizant program
office for consideration, and will issue such authorizations and
modifications under the contract as are necessary and appropriate.
(c) Contractors should be required to provide such statements of the
project's financial and program status as are believed necessary for
considering requests for approval.
48 CFR 917.7112-5 Auditing.
(a) As a part of the management of the research program accomplished
through special research contracts, auditing of participating
institutions shall be initiated by the contracting officers
administering the contracts. The prupose of this audit program is to
corroborate that the participating institutions are properly using the
funds and personal property provided by the contracts, and to identify
any changes needed in the arrangement or in related administrative
requirements in order to further the effectiveness of the contracts in
accomplishing their intended programmatic research purposes. In
addition to these general objectives, the principal specific objectives
of the audits of special research contracts should determine that:
(1) The amounts as submitted in the contractor's certified cost
statement are accurate and were incurred in connection with the work;
(2) Satisfactory documentary evidence is available in support of the
costs incurred;
(3) DOE approval was obtained where required; and
(4) The proportion of total cost charged to DOE is in accordance with
the percentage stipulated in the contract.
(b) The review of special research contracts should be made on a
selective basis with the selected sample including all special research
contracts where the contracting officer requested that an audit be
performed pursuant to the provisions of 917.7112-3(b).
(c) In the event of termination prior to the expiration date of a
special research contract, unless the costs incurred by the contractor
are relatively small or can be otherwise adequately corroborated, an
audit should be made to determine the nature of the costs and other
relevant data for use in arriving at a termination settlement.
(d) While audit is not a prerequisite to payment under a contract,
the contracting officer, before authorizing final payment, should
consider the necessity for an audit to determine whether the charges to
the contract are proper. If any such audits result in findings which
may be of value to program offices in their determinations regarding
selection and renewal of research projects, such findings should be made
available to them.
48 CFR 917.7112-6 Security.
As a general rule, investigators should not need access to classified
information in the conduct of basic research funded by DOE. The
contractor should be advised when, in the judgment of the principal
investigator, information is developed which should be classified, the
DOE field office must be notified immediately. When, in the opinion of
the cognizant program office, the work moves into a classified area,
prompt steps shall be taken to notify the contractor and appropriate
field office.
48 CFR 917.7113 Format for Special Research Contracts (SRC) with
educational institutions/or other nonprofit institutions.
Contract No.
This contract is effective as of the ---- , 19 -- , between the
United States of America (hereinafter referred to as the
''Government''), acting throught the U.S. Department of Energy
(hereinafter referred to as the ''DOE''), and ------ (hereinafter
referred to as the ''Contractor'').
DOE wishes to have the Contractor perform certain research. This
contract states the terms and conditions under which the Contractor
agrees to perform the work.
This contract is authorized by the Department of Energy Organization
Act of 1977 and other applicable law.
Now therefore, the parties hereto agree as follows:
(a) The Contractor shall furnish personnel, facilities, equipment,
materials, supplies, and services, except such as are furnished by the
Government, necessary for the performance of the research provided for
in Appendix A and shall perform the research and report thereon pursuant
to the provisions of this contract. It is understood that Appendix A, a
guide to the performance of this contract, may be deviated from by the
Contractor subject to the specific requirements of this contract.
(b) This work shall be conducted under the direction of or such other
members of the Contractor's staff as may be mutually satisfactory to the
parties.
Note A. -- The description of the research in Appendix A may be
omitted and Appendix A appropriately modified to incorporated, by
pertinent references to the proposal or other documents, the type of
data necessary to describe the research as called for by Appendix A;
and where there is no cost sharing, other features may be referenced in
lieu of insertion in Appendix A. In such cases, the referenced material
will be retained as part of the permanent contract file.
The period of performance under this contract shall commence on ----
19 -- , and expire on ---- 19 -- . Performance may be extended for
additional periods by the mutual written agreement of the parties. It
is presently expected that this contract will be extended by mutual
agreement until ----
19 -- .*
*This sentence is optional and may be omitted.
(a) In full consideration of the Contractor's performance hereunder,
DOE shall furnish the equipment, supplies, materials, and services, if
any, listed in Article A-11(b)(2) and pay the Contractor the sum of ----
, hereinafter called the Government ''Ceiling'' which sum shall be
subject to adjustments as hereinafter provided.
(b) Payments to the Contractor shall equal the ''cumulative
Government cost'' of performance of this contract, as the term
''cumulative Government cost'' is defined in Article B-XXIX*; provided
however, and notwithstanding any other provisions of this contract, that
the Government's monetary liability under this contract shall not exceed
the Government ceiling or an amount equal to the cumulative Government
costs, whichever is less. The Contractor shall be obligated to perform
under this contract throughout the agreed-upon period of performance,
and to bear all costs which DOE has not agreed to pay; provided
however, that the Contractor shall have the right to cease to perform
the research provided for in this contract, upon written notice to DOE
to that effect, at any time, when or after the cumulative Government
cost equals or exceeds the Government ceiling.
(c) The Government ceiling specified in (a) above may be increased
unilaterally by DOE by written notice to the Contractor and may be
increased or decreased by written agreement of the parties (whether or
not by formal modification to this contract). In the event that the
stated period of performance is extended, the Government ceiling will be
revised to reflect any increased DOE funding for the extended period or
periods.
(d) Upon termination or expiration of the total period of
performance, the Contractor shall promptly refund to DOE (or make such
disposition as DOE may in writing direct) any sums paid by DOE to the
Contractor under this contract, through direct payment or under letter
or credit, in excess of the cumulative Government cost incurred in
performance under the contract.
*The term cumulative Government costs refers to the cost of items
under A-II(a) of Appendix A, for the initial contract period plus any
extension period that may be properly chargeable to DOE. If
proportionate cost sharing is involved, the cost is DOE's share of such
costs, and does not include the cost of items excluded from Article
A-II(a), such as items to be contributed solely by the Contractor or
property to be furnished by the Government. Charges to DOE will be
reported after the conclusion of each contract period set forth in
Appendix A (generally an annual period); in addition to the limitations
on charges to DOE provided for by this Article III, charges to DOE for a
specified contract period may not exceed the 110 percent limitation
mentioned above as well as to the provisions of this Article III.
The following items of property acquired or fabricated by the
Contractor are hereby listed as ''Government Property;'' (List all
property and equipment, title to which is to remain in the Government.
Insert the word ''none'' if title to all of the property is to be vested
in the Contractor. If title to property acquired of fabricated by the
Contractor is to remain in the Government, add appropriate provisions
for payment for such property from plant and equipment funds. Such funds
should be in addition to, and not a part of, the ''Government Ceiling''
funds provided under Article III).
Appendix A -- Performance guide, Appendix B -- General Provisions,
and Appendix C -- Statement of Costs, are hereby attached to and made a
part of this contract.
In witness whereof, the parties have executed this contract.
United States of America
By
Date
Contracting Officer
Contractor
By
Date
Name
Title
Contract No.
Contractor
Contract No.
For the contract period ------ through ------
Article A-I. Research to be performed by the Contractor. (Insert
description of research activity and state the appropriate percentage of
time or effort which the principal investigator(s) expects to devote to
the work.)
Article A-II. Ways and means of performance. The listing under (a),
(b), and (c) below should be in a form to permit determination of which
items of costs are to be chargeable to DOE or proportionately shared,
and which items are to be contributed solely by the Contractor or solely
by DOE. The listing should also permit application of the approval
requirements of the contract. Excessive detail in listing should be
avoided.
(a) Items for which funding will be provided as indicated in A-III
below. Do not include in this paragraph (a) any items which are to be
contributed solely by the Contractor.
(1) Salaries and wages. State total dollar amount. If any
stipulated salary amounts for professional staff members are established
in accordance with FAR 31.3 or 31.7 the stipulated amounts, along with
any limitations or requirements on the use of such stipulated amounts
should be provided for in the contract.
(2) Equipment to be purchased or fabricated by the Contractor. List
equipment to be purchased or fabricated by the Contractor and for which
title is to remain in the Contractor and state the total dollar amount
budgeted for such equipment. Such equipment may be set forth in general
classifications as specifically as possible, if it is not feasible to
list them individually. However, any individual piece of equipment, the
estimated cost of which is over $1,000 will be separately identified.
Except where the contract may otherwise specifically provide, equipment
for the pupose of this paragraph A-II shall mean an item of personal
property having a useful life expectancy in excess of 1 year and an
acquisition cost in excess of $500. Failure to identify equipment may
result in disallowance of its cost if subsequently pruchased.
(3) Travel. (Show amounts for both foreign and domestic. If none,
state none).
Domestic
Foreign
(4) Other direct costs.
(5) Indirect costs based on applicable rates or predetermined rate of
-- percent if with a educational institution for FY year(s) ---- . Show
base or bases of costs to which rate apply.
(b) Items, if any, significant to the performance of this contract,
but excluded from computation of Government costs and from consideration
in proportioning costs. (See 917.7107-2(d)).
(1) Items to be contributed by the Contractor. In accordance with
Article B-II(c), if a proposed Contractor contribution is included in
this paragraph (b)(1), the Contractor shall maintain records adequate to
permit DOE to determine the extent of the contribution. If the time or
effort of the principal investigator(s) is to be contributed by the
Contractor and excluded from A-II(a) and A-II(b), the contributed time
or effort should be listed under A-II(d).
(2) Items to be contributed by the Government.
(c) Time or effort of principal investigator(s) contributed by
Contractor but excluded from computation of Government cost and from
consideration in proportioning costs. Where covered under A-II(a) or
A-II(b) above, state: ''None.'' See 917.7107-2(e).
Article A-III. The total estimated cost of items under A-II(a) above
for the contract period stated in this Appendix A is $ ---- . DOE will
pay -- percent of the actual costs of these items incurred during the
contract period stated in this Appendix A, subject to the provisions of
Article III and Article B-XXIX of Appendix B. The estimated Government
cost for the contract period stated in this Appendix A is $ ---- .
The estimated Government cost is funded as follows:
(a) Estimated unexpended balance from the prior period(s) $ ---- .
(b) New funds for the current period $ ---- .
The new funds being added in A-III(b) constitute the basis for
advance payments provided under Article B-XI.
(c) Subject to their availability, additional funds anticipated for
the contract in the amount of $ ---- .
Note. -- Do not include this provision in fully funded SRCs.
(a) The terms ''DOE'' means the U.S. Department of Energy or any duly
authorized representative thereof, including the contracting officer
except for the purpose of deciding an appeal under the article entitled
''Disputes.''
(b) The term ''contracting officer'' means an official designated to
enter into or administer contracts and make related determinations and
findings.
(c) Except as otherwise provided in this contract, the term
''subcontracts'' includes purchase orders under this contract.
(a) DOE shall have the right to inspect, in such manner and at all
reasonable times as it deems appropriate, all activities of the
Contractor arising in the course of its undertakings under this
contract.
(b) The Contractor shall make progress and other reports in such
manner and at such time as specified under this contract, as DOE may
reasonably require from time to time.
(c) The Contractor agrees to keep records and books of account, in
accordance with generally accepted accounting principles and practices,
and consistent with the requirements of OMB Circular A-21, and FAR 31.3
or 31.7 as constituted on the effective commencement date of the
contract period, covering its costs and expenditures for items included
under Article A-II(a) of Appendix A and which are furtherance of the
research work under this contract. In the event a contractor
contribution is listed in Article A-II(b), the Contractor shall maintain
records adequate to permit DOE to determine the extent of the
contribution. If professional staff members are included under Article
A-II(b), the Contractor shall maintain records on such personnel in
accordance with the payroll distribution procedure of section J.6 of OMB
Circular A-21.
(d) DOE shall at all reasonable times be afforded access to the
premises and to these books and records and to related correspondence
receipts, vouchers, memoranda, and other data of the Contractor; and
the Contractor shall preserve such books and papers, without additional
compensation therefor, in accordance with the retention requirements
referenced in Article B-XVIII, Examination of Records.
*If the contract is with a nonprofit organization rather than an
educational institution, this article should be revised to provide that
the cost principles at FAR 31 as may be modified by 931 depending on the
nature of the contractors organization, will be used in determining
actual cost.
This clause should be used in place of the clauses entitled
''Security,'' 952.204-1, and ''Classification'' 952.204-2, in SRCs with
educational institutions for off-site research that are not likely to
produce Restricted Data or other classified information.
(a) It is mutually expected that the activities under this contract
will not involve Restricted Data or other classified information or
material. It is understood, however, that if in the opinion of either
party, this expectation changes prior to the expiration or termination
of all activities under this contract, said party shall notify the other
party accordingly in writing without delay. In any event, the
Contractor shall classify, safeguard, and otherwise act with respect to
all Restricted Data and other classified information and material, in
accordance with applicable law and the requirements of DOE, and shall
promptly inform DOE in writing if and when Restricted Data or other
classified information and material becomes involved. If and when
Restricted Data or other classified information or material becomes
involved, the Contractor shall have the right to terminate performance
of the work under this contract and in such event the provisions of this
contract regarding termination for the convenience of the Government
shall apply.
(b) The Contractor shall not permit any individual to have access to
Restricted Data, or other classified information, except in accordance
with the Atomic Energy Act of 1954, as amended, and DOE regulations or
directives.
(c) The term ''Restricted Data'' as used in this article means all
data concerning the design, manufacture or utilization of atomic
weapons, the production of special nuclear material or the use of
special nuclear material in the production of energy, but shall not
include data declassified or removed from the Restricted Data category
pursuant to section 142 of the Atomic Energy Act of 1954, as amended.
(a) The Contractor is solely responsible for the conduct of the work.
(b) In instances where the carrying out of the work involves a DOE
license, the provisions of the pertinent license shall prevail over any
inconsistent provisions of this contract.
Insert the clause in 952.227-77.
Insert the clause in 952.227-71.
(a) Except as otherwise provided in this paragraph (a) and paragraph
(b) of this Article B-IX, title to all material, supplies, and equipment
purchased or otherwise acquired by the Contractor in the performance of
its research activities shall be and remain in the Contractor. Said
materials, supplies, and equipment shall be used for the benefit of
research under this contract and any extensions or successor contractors
hereto; and provided there is no interference with said research, shall
be made available for use by investigators working on any Federal
research contract at the same location. Subject to these priorities,
materials, supplies, and equipment may be used as the Contractor wishes.
Except as otherwise agreed in writing, title to any items of property
listed as ''Government property'' shall pass directly to the Government;
such property shall be subject to paragraphs (b), (c), (d), (e), and
(f) of this Article B-IX.
(b) Subject to the mutual agreements of DOE and Contractor, the
Government may furnish the Contractor items of equipment, materials,
supplies or facilites for use by the Contractor in performance of the
work. Title to these items shall remain in the Government unless
otherwise agreed in writing. Such items of property and the items of
property listed elsewhere in this contract as Government property, are
hereinafter referred to as ''Government property.'' Title to Government
property shall not be affected by the incorporation or attachment
thereof to any property not owned by the Government or shall any such
property, or any part thereof, be or become a fixture or lose its
identity as property by reason of affixation to any realty.
(c) To the extent practicable, the Contractor shall cause all items
of Government property to be suitably marked with an identifying mark or
symbol indicating that the items are the property of the Government.
The Contractor shall maintain, at all times and in a manner satisfactory
to DOE, records showing the use and disposition of Government property.
Such records shall be subject to DOE inspection at all reasonable times
and DOE shall at all reasonable time have access to the premises wherein
any items of Government property are located. Unless otherwise
authorized in writing by DOE, the Contractor shall use Government
property only for the purposes of this contract, provided, however, that
the Contractor is hereby authorized to use items of equipment
constituting Government property for other Federal research contracts to
the extent such use: (1) Does not interfere with its work under this
contract; (2) is not prohibited by provisions of the other Federal
agreements; and (3) is promptly reported by the Contractor to
contracting officer.
(d) The Contractor shall promptly notify DOE of any loss or
destruction of or damage to Government property. It is understood that
the Contractor shall not be liable for any such loss, destruction, or
damage, unless same results from willful misconduct or lack of good
faith on the part of any corporate officer of the Contractor, or of one
or more of the contract's representatives having supervision or
direction of all or substantially all of the activities under this
contract. If the Contractor is liable for such loss, destruction, or
damage, it shall promptly account therefor to the satisfaction of DOE;
if the Contractor is not liable therefor, and is indemnified,
reimbursed, or otherwise compensation for such loss, destruction, or
damage, it shall promptly account therefor to the satisfaction of DOE.
(e) With the written approval of DOE, the Contractor may sell,
transfer, or otherwise dispose of items of Government property to such
parties and upon such terms as so approved, or itself acquire title to
items of Government property upon such terms as may mutually be agreed
upon in writing by the Contractor and DOE. The proceeds of any such
disposition, and any agreed price of any such Contractor acquisition,
shall be paid by the Contractor to the Government, or credited on
account of DOE, payments to be made under this contract as DOE may
direct. Subject to the other provisions of this contract, the
Contractor shall deliver Government property to DOE upon request
(suitably packed and shipped at the Government's expense).
(f) The Contractor shall utilize for the benefit of the work under
this contract such items of property available to the Contractor by
reason of its activities under other Federal research agreements as are
appropriate for utilization under this Contract pursuant to the
provisions of the pertinent Federal agreement.
Insert the requirements of FAR 49.
(a) DOE shall make payments to the Contractor with respect to the
amount of consideration prescribed in Article III of this contract as
follows:
(1) A maximum of an additional 45 percent of the new funds as set
forth in Article A-III(b) of this contract following execution of this
contract (and following the effectuation of each extended period) upon
receipt of a request or requests in writing from the Contractor
evidencing that the requested amount is currently needed in connection
with planned expenditure or commitments for contract performance.
(2) A maximum of an additional 45 percent of the new funds as set
forth in Article A-III(b) of this contract upon receipt of requests from
the Contractor evidencing that the amount requested is then required in
connection with the work under the contract.
Note. -- Subparagraphs (1) and (2) of this paragraph (a) may be
revised, as deemed appropriate by the contracting officer, in accordance
with 917.71.
(3) If, following submission of an annual progress report, the
contract is to be extended for an additional period of performance, and
additional payment may be made at the time of execution of the extension
which, when added to the payments already made under (1) and (2) above
for the expiring period, will not exceed the new funds set forth in
Article A-III(b) for the expiring period. A concluding payment for the
pertinent period, if appropriate, may be made following submission of a
certified statement showing Government cost and evidencing the
Contractor's performance under this contract.
(4) If the contract is not to be extended, the final payment of the
consideration provided for in Article III shall be made following
submission by the Contractor of a final report required by Article
B-XXI, in form and content satisfactory to DOE, and submission of a
certified statement showing Government cost and evidencing the
Contractor's performance and compliance with the patent provisions.
(b) The payments made pursuant to paragraph (a) above shall not
prejudice or otherwise affect adversely any of the Government's rights
under the contract. For purposes of settlement in the event of
termination prusant to article B-X hereof, these payments shall not be
construed as evidentiary, and any excess payment in the light of Article
B-X shall be promptly returned to DOE.
(c) DOE, at its option, may invoke the following with respect to any
amount of consideration remaining to be paid at any given time:
(1) DOE shall issue a letter of credit as provided for by Treasury
Fiscal Requirements Manual, Part 6 Chapter 2000 under which payments to
the Contractor with respect to the amount of consideration provided for
in Article III will be made. The Contractor agrees that the first
ninety (90) percent of the new funds as set forth in Article A-III(b)
will be under the letter of credit and will be subject to the submission
by the Contractor of a Payment Voucher on Letter of Credit (TUS 5401),
in accordance with procedures based upon Treasury Fiscal Requirements
Manual, Part 6 Chapter 2000 which are agreed to by the parties.
Following submission by the Contractor of a final report provided for in
Article B-XXI, in form and content satisfactory to DOE, and submission
of a certified statement showing the total expenditures and evidencing
the Contractor's performance, and upon submission by the Contractor to
DOE of such invoices or vouchers as are satisfactory to DOE, DOE shall
pay the Contractor the concluding payment of the consideration provided
for in Article III: or said concluding payment will be included under
the letter or credit and will be subject to submission by the Contractor
of a payment voucher on letter of credit, in accordance with the
procedures described above. If, following submission of an annual
report, the contract is extended for an additional period of
performance, an additional payment may similarly be made at the time of
execution of the extension which, when added to the payments already
made for the expiring period, will not exceed the new funds as set forth
in Article A-III(b) for the expiring period. A concluding payment for
the pertinent period, if appropriate, may be made following submission
of a certified statement showing Government cost for the peritent period
and evidencing the Contractor's performance.
(2) DOE reserves the right to increase, decrease, or cancel the
amount covered by the letter of credit, provided that such action is
required because of a change in the amount of consideration provided for
in Article III or is taken pursuant to paragraph (c)(1) of this article.
The issuance and use of a lettter of credit and receipt of funds
pursuant thereto shall not prejudice or otherwise adversely affect any
of the Government's rights under the agreement.
Insert the clause from FAR 52.222-26.
Insert the clause from FAR 52.222-3.
Insert the clause from FAR 52.222-4 with appropriate insertions.
Insert the clause in FAR 52.223-1.
Insert the clause in FAR 52.203-1.
Insert the clause in FAR 52.203-5.
Insert the clause from FAR 52.215-1. The Examination of Records
clause in FAR 52.215.1 may be omitted from foreign contracts in
accordance with procedures in FAR 25.9.
Neither this contract nor any interest therein nor claim thereunder
shall be assigned or transferred by the Contractor, except as expressly
authorized in writing by the contracting officer. The Contractor shall
not subcontract any research or development work under this contract,
except as expressly authorized in writing by the contracting officer.
The Contractor shall furnish six (6) copies of the following reports
to the appropriate field office.
(a) Progress report. The progress report shall briefly describe the
scope of investigations undertaken and the significant results obtained.
It shall also indicate compliance with the contract requirements and
any failures to comply. The report shall indicate the approximate
percentage of time or effect which the principal investigator(s) has
devoted to the project since the beginning of the current term of the
contract and indicate the amount of effort which is expected to be
devoted during the remainder of the current term. Technical reports,
preprints, and articles prepared for publication shall be listed with
bibliographical references. Reprints of all such material not
previously submitted shall be appended and material contained therein
need not be duplicated in the report. Progress reports shall be
submitted approximately 4 months in advance of the expiration of the
current contract term and shall give the Contractor's best estimate of
the probable events and occurences in regard to the remainder of the
current term. Except as DOE may otherwise request, no further progress
report will be required for any contract year unless there has been a
significant change in scientific results or compliance between the
lastest progress report by the contractor and its actual experience
which shall be reported promptly.
(b) Final report. Upon termination or expiration of the total period
of performance, the Contractor shall submit, promptly, a summary of its
activities for the entire period, including a list of publications
issued during the entire period and copies of any reprints not
previously submitted, as well as a comprehensive evaluation of progress
in the area of research funded by the contract.
(c) Renewal proposals. A renewal proposal, if any, shall be
submitted along with the technical progress reports, and each of the two
documents shall be separately bound. Renewal proposals are submitted to
the DOE contracting officer.
Foreign travel shall be subject to the prior approval of the
contracting officer for each separate trip, regardless of whether funds
for such travel are contained in an approved budget. Foreign travel is
defined as any travel outside of Canada and the United States and its
territories and possessions.
Insert the clause in FAR 52.220-3 under the conditions prescribed
therein.
Insert the clause in FAR 52.219-8.
Insert the clause in FAR 52.219-13.
Insert the clause at 952.204-71 if the contract involves research in
nuclear technology and it is appropriate. The contracting officer
should confirm its inclusion with the local security office.
Insert the clause in FAR 52.222-35.
*(a) The term ''Government cost'' as used in this contract means
DOE's share** of the sum of costs incurred by the Contractor for items
included under Article A-11(a) of Appendix A furtherance of the work
hereunder, incurred in accordance with the provisions of this contract,
and which are reported to DOE in accordance with (b) below. The term
''cumulative Government costs'' as used in this contract means the total
of the Government costs incurred during the initial contract period plus
any extension periods.
(b) Within 3 months after the end of each contract period set forth
in Appendix A, and within 3 months after the termination or expiration
of the total period of performance, the Contractor shall furnish a
certified statement, executed by an official of the Contractor showing
the Contractor's cost and evidencing its performance under the contract,
during the contract term just completed. The statement shall show all
cost incurred during the pertinent contract term set forth in Appendix A
for items under Article A-II(a) of Appendix A, including the
Contractor's share, if any, of such costs, and show the extent of the
Contractor's contribution of items under Article A-II(b)(1) of Appendix
A. Costs included in the certified statement may include the following:
expenditures of cash, the cost of material and supplies transferred
from store's inventory, and the amount due the Contractor for indirect
costs in accordance with the rate and factor shown in Appendix A of the
contract for the pertinent period. The costs for the pertinent period
shall be consistent with the principles of OMB Circular A-21 as
constituted as of the effective commencement date of said period. The
certified statement shall be in the form set forth in Appendix C.
(c) The certified statement should be in agreement with the
institution's financial record and shall reflect only expenditures
actually made during the period covered, including transfers from
inventory. It shall not include commitments as a part of such
expenditures for goods or services on order but not received or those
received but not paid for, unless the Contractor is operating under an
established and consistently applied system of accrual accounting. If
this is the case, the certified statement shall be so footnoted. A
combination of accrual and cash accounting for cost accumulation and
reporting purposes shall not be used. The renewal proposal budget
should be footnoted to show the estimated amount of outstanding
commitments for property at the end of the current period. The
certified statement contains a space in which office should be inserted
the actual amount of outstanding commitments for property at the end of
the period covered by the statement. This commitment amount is for
information only and is not a part of the expenditure calculation. The
Contractor understands that DOE expects to rely on this certified
statement for determining the Government cost for the period. With
respect to any period in which proportionate cost sharing is applicable,
the support costs for the pertinent period will be determined by
applying the percentage figure included in Article A-III for the
pertinent period to the certified cost of items included under Article
A-II(a) incurred during the pertinent period. All charges to DOE shall
be subject to the approval requirements of this contract. The
Contractor is expected to maintain auditable records as contemplated by
Article B-II(c) to substantiate the costs incurred for items under
Article A-II(a) and to show the extent of the Contractor's contribution
of the items listed under Article A-II(b)(1).
*If the contract is with a nonprofit organization other than an
educational institution or a research foundation established by an
educational institution, this article should be revised to provide that
the commercial cost principles (FAR 31.2) will be used in determining
actual cost.
**In those cases in which there is no proportionate sharing of costs,
DOE's ''share'' will be 100 percent. With respect to any period in
which proportionate cost sharing is applicable to Article A-III, it is
understood that Government cost for that specified period will equal the
stipulated percent of the sum of costs incurred by the Contractor during
the stated period for items under A-II(a) of Appendix A, not shown in
Appendix A of the contract for the pertinent period. The costs for the
pertinent period shall be consistent with the principles of OMB Circular
A-21 and FAR 31.3 or FAR 31.7 as constituted on the effective
commencement date of said period. The certified statement shall be in
the form set forth in Appendix C.
In addition to such approvals as are specifically required by other
provisions of this contract, the Contractor shall obtain DOE's approval
for:
(a) A change of the principal investigator, co-investigator, or other
key people as might be named in this contract or continuation of the
research work for any one period in excess of 3 months without direction
by an approved principal investigator. The principal investigator may
increase or decrease the amount of effort which he devotes to the
project without obtaining DOE approval; however, a representative of
the institution shall consult with the appropriate DOE Headquarters
program representative if the principal investigator plans to, or
becomes aware that he will devote substantially less effort to the work
than anticipated in Article A-1. The purpose of such consultation will
be to determine what effect, if any, the anticipated change will have on
the research work and what modification to the contract, if any, may be
appropriate.
(b) No change in the phenomenon or phenomena under study, i.e., broad
category of the research under the contract, shall be made without the
specific written approval of the contracting officer. Ordinarily, such
changes, if approved by the contracting officer, will be accomplished
through a new contract or mutually agreed to modification. The
Contractor may change the specific objectives in the research work
described in the contract, provided it gives the contracting officer
prompt notification of such changes, and the Contractor may continue to
follow the new objectives while DOE determines whether it wishes to
continue the program under the changed approach. Significant changes in
methods or procedures employed in performing the research should be
reported in the first technical program report issued subsequent to the
changes.
(c) Prior approval is required. Acquisition of an item of equipment
not itemized in Appendix A, the cost of which is $1,000 or more.
Approval is not required if the equipment is merely a different model of
an item listed in Appendix A. (If plant and capital equipment funds are
provided for the acquisition of equipment with title to be vested in the
Government, the total cost of such equipment shall not exceed the amount
provided for such equipment unless prior DOE approval has been
obtained.)
(d) Prior approval is required. Purchase any general-purpose
equipment, such as office furniture, air conditioning, automatic data
processing equipment, etc., not specifically provided for in Appendix A.
(e) Incurring costs for items set forth in Article A-II(a), during
the pertinent contract period stated in Appendix A, in excess of 110
percent of the total estimated cost specified in Article A-III. Charges
to DOE for any such costs incurred with the approval of DOE shall also
be subject to the limitations of Article A-III.
(f) Any proposed foreign travel (see Article B-XXII).
(g) Prior approval is required. Expenditures for domestic travel if
such expenditures exceed the amount shown in Article A-II(a) for such
travel by $500 or by 25 percent, whichever is greater.
(h) Acquisition of excess personal property.
Insert the clause in FAR 52.223-2 under the conditions set forth
therein.
Insert the clause set forth in FAR 52.222-36 under the conditions set
forth in the section.
Insert the clause in 952.204-1 under the conditions set forth
therein.
Insert the clause in 952.204-70 under the conditions set forth
therein.
Insert the clause in FAR 52.247-63 under the conditions set forth in
FAR 47.4.
Insert the clause set forth in 952.223-75 where appropriate.
(49 FR 11974, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984)
48 CFR 917.7113 -- Subpart 917.72 -- Program Opportunity Notices for Commercial Demonstrations
48 CFR 917.7200 Scope of subpart.
(a) This subpart establishes procedures for the submission,
evaluation, and selection for award or support of proposals offered in
response to program opportunity notices (PONs) issued by DOE to
accelerate the demonstration of the technical feasibility and commercial
application of all potentially beneficial non-nuclear energy sources and
utilization technologies.
(b) As a result of a PON, a contract, grant or cooperative agreement
may be entered into. If the intended relationship is expected to be a
contract this regulation shall be followed. If the intended
relationship is expected to be a financial assistance instrument the DOE
Assistance Regulations (DOE-AR) shall be followed. Specifically, DOE-AR
600.233 (10 CFR Part 600.233) will apply if the intended relationship is
expected to be a cooperative agreement. In any event, any public
notice, solicitation, or request for applications or proposals should
indicate whether the intended relationship will be one of acquisition or
assistance and state that acquisition regulation will govern if an
acquisition contract is entered into and that the assistance regulation
will govern if a financial assistance instrument is utilized.
(c) This subpart applies to demonstrations performed by individuals,
educational institutions, other commercial or industrial organizations,
or other private entities, or by public entities, including State and
local governments, but not other Federal agencies. For purposes of this
subpart, commercial demonstration projects include demonstrating
technological advances and field demonstrations of new methods and
procedures, and demonstration of prototype commercial applications for
the exploration, development, production, transportation, conversion,
and utilization of non-nuclear energy resources.
48 CFR 917.7201 Policy.
48 CFR 917.7201-1 General.
(a) It is DOE's intent to encourage the submission of proposals to
accelerate the demonstration of the technical, operational, economic,
and commercial feasibility and environmental acceptability of particular
energy technologies, systems, subsystems, and components. Program
opportunity notices will be used to provide information concerning
scientific and technological areas encompassed by DOE's programs. DOE
shall, from time to time, issue program opportunity notices for
proposals for demonstrations of various forms of non-nuclear energy and
technology utilization.
(b) Synopsis of the notice shall be published in the Commerce
Business Daily prior to release. In addition, the notice shall be
circulated directly to potentially interested individuals, private and
public entities (excluding Federal agencies) and associations thereof to
the maximum extent feasible. Special attention in this regard should be
given to small business concerns, small disadvantaged concerns, and
women-owned small business concerns to insure that they are given every
opportunity to participate in such acquisitions. Consideration should
be given to distributing the notice to all eligible entities which,
during the preceding two years, have expressed an interest in
participating in, or entering into arrangements for, commercial
demonstration in the particular energy field.
48 CFR 917.7201-2 Determination to use and approval of content.
(a) Determination to use. (1) Before the PON is selected as the
appropriate solicitation procedure the Head of the Contracting Activity
expected to issue the notice will be consulted to assure that the PON is
the appropriate solicitation method. A written program determination
shall be made to show that the conditions in 917.7201-3 exist to support
the conclusion that the use of the PON procedure is both necessary and
appropriate. The determination must not be merely conclusive but shall
be supported by specific facts and explanations.
(2) The Senior Program Official or designee may approve the
determination.
(3) The approved determination shall be included in the PON file.
(b) Approval of content. (1) When the dollar amounts are less than
Source Evaluation Board (SEB) level, a PON may be originated at whatever
level is consistent with the program objectives established by the
Senior Program Official. When a source evaluation board is not
required, notices may be approved by the Senior Program Official or
designee after prior concurrence by Counsel.
(2) When an SEB is required, notices shall be reviewed and approved
by the SEB after prior concurrence by Counsel, and the Senior Program
Official or designee.
(3) All PONs shall be issued by the cognizant Head of the Contracting
Activity or designee.
48 CFR 917.7201-3 Federal support criteria.
In determining the appropriateness of DOE involvement through the PON
mechanism in any particular area of demonstration activity,
consideration shall be given to the extent to which the proposed
undertaking meets Federal support criteria including, but not limited
to, the following:
(a) The urgency of public need for the potential results of the
research, development, or demonstration effort is high, and it is
unlikely that similar results would be achieved in a timely manner in
the absence of Federal assistance;
(b) The potential opportunities for non-Federal interests to
recapture the investment in the undertaking through the normal
commercial utilization of proprietary knowledge appear inadequate to
encourage timely results;
(c) The extent of the problems treated and the objectives, sought by
the undertaking are national or widespread in their significance;
(d) The opportunities to induce non-Federal support of the
undertaking through regulatory actions, end-use controls, tax and price
incentives, public educations, or other alternatives to direct Federal
financial assistance are limited;
(e) The degree of risk of loss of investment inherent in the research
is high, and the availability of risk capital to the non-Federal
entities which might otherwise engage in the field of the research is
inadequate for the timely development of the technology;
(f) The research, development, and application objectives anticipated
by the activities or facilities proposed, support national interests or
objectives;
(g) The economic, environmental, and societal significance which a
successful demonstration may have for the national fuels and energy
system; and
(h) The availability of non-Federal participants to construct and
operate the facilities or perform the activities associated with the
proposal and to contribute to the financing of the proposal.
48 CFR 917.7201-4 Information to be included in program opportunity
notices.
Each program opportunity notice shall include:
(a) The goal of the intended demonstration effort;
(b) A time schedule for submission of, and action on, proposals:
(c) Evaluation criteria, including an indication, when determined
practicable to do so, of the approximate cost and time duration
contemplated for individual projects resulting from the notice;
(d) Program policy factors.
(e) A statement that additional information, consistent with the
overall concepts and approaches developed in the proposal, may be
required regarding the statement of work and the proposed budget (e.g.,
a notice that a detailed cost breakdown may be required from the
proposers being considered);
(f) Such other information, terms, or conditions that shall apply to
the particular program opportunity notices;
(g) A place and manner of submission; and
(h) A late proposal provision (see FAR 15.412).
48 CFR 917.7201-5 Information to be provided in proposals offered
pursuant to program opportunity notices.
(a) Name and address of the entity(ies) submitting the proposals;
(b) Date of preparation of submission;
(c) Type of entity(ies) (public, including State and local
governments, and private, including profit and nonprofit organizations
and educational institutions);
(d) Representations and certifications as specified in the notice;
and
(e) Concise title and abstract of the proposed demonstration project
for which assistance or participation is being sought.
(f) An outline and discussion of the proposed demonstration which
shall, if applicable and to the extent possible, specifically address
and reference the evaluation criteria and include:
(1) Specification of the technology;
(2) Proposed statement of work to be performed;
(3) Description of prior operation experience with the technology;
(4) Preliminary design of the demonstration plan;
(5) Time tables containing proposed construction or fabrication and
installation and operation plans;
(6) Budget-type estimates of construction or fabrication and
operation costs;
(7) Description and proof of title to land for proposed site, natural
resources, electricity and water supply, and logistical information
related to access to raw materials to construct and operate the plant
and dispose of salable products from the plant;
(8) Assessment of the environmental impact of the proposed plant and
plans for disposal of wastes resulting from the operation of the plant;
(9) Plans for continued use of the technology if the demonstration is
successful;
(10) Plans for continued use of the plant if the demonstration is
successful;
(11) Plans for dismantling of the plant if the demonstration is
unsuccessful or otherwise abandoned;
(12) Form and amount of assistance or participation being sought;
(13) Form and amount of funding, or other contribution to be provided
by the proposer, including proposed disposition of revenues generated;
and,
(14) The extent to which the proposed expenditures would constitute
permanent (nonseverable) improvement to property now owned by the
Government; and proposed plans for the disposal (through acquisition by
the offeror or otherwise) of any such improvements.
The information called for under this section relates primarily to a
demonstration project involving the construction and operation of a
''plant.'' In instances where the proposed project concerns a
demonstration that does not involve a plant (for example, the
demonstration of a process, apparatus, or device), the program
opportunity notice shall state what additional information is to be
submitted with the proposal;
(g) Names of key personnel to be involved, brief biographical
information, including relevant experience;
(h) A current financial statement;
(i) The period for which proposal is valid;
(j) Names and telephone numbers of proposer's primary business and
technical personnel whom DOE may content during evaluation or
negotiation;
(k) Each proposal containing technical data or proprietary or
business confidential information, which the proposer intends to be used
by DOE for evaluation purposes only, should be marked on the cover sheet
with the legend prescribed in 927.402-3(d); and
(l) Signature and title of official of the proposing organization
authorized to contractually obligate such organization.
48 CFR 917.7202-1 Forms of assistance and participation.
(a) In providing for demonstration, DOE may utilize various forms of
Federal assistance and participation. These include but are not limited
to:
(1) Contracts;
(2) Grants;
(3) Loans;
(4) Incentives, including financial awards, to individual inventors;
(5) Joint Federal-industry demonstration corporation;
(6) Federal purchase(s) or guaranteed price of the products of the
demonstration project; and
(7) Cooperative agreements.
48 CFR 917.7202-2 Cost participation.
The provisions of DOE's cost participation policies contained in
917.70 shall apply, as applicable, to proposals hereunder.
48 CFR 917.7203 Method and criteria for evaluation and selection.
(a) General policy. (1) Information contained in proposals offered
in response to PONs shall be handled in accordance with the policies and
procedures set forth in 927.402-3(d) pertaining to the marking and
handling of proprietary data.
(2) Late proposals, modifications of proposals, and withdrawals of
proposals shall be handled in accordance with FAR 15.412.
(b) Selection. (1) When the aggregate of expected award values, plus
costs shared by the performer and/or other parties, together with later
phases of the same project, is expected to meet the SEB dollar
threshold, comprehensive evaluation shall be conducted by a specially
constituted board which shall follow procedures and documentation
requirements of the SEB Handbook modified as appropriate to conform to
the solicitation process as set forth herein.
(2) When the aggregate of expected award values, plus costs shared by
the performer and/or other parties, together with the later phases of
the same project is not expected to meet the SEB dollar threshold,
proposals submitted in response to a PON will be evaluated by a panel
which shall be appointed by the cognizant program office. The panel
should utilize any of the procedures and documentation requirements of
the SEB Handbook (as modified as appropriate to conform to the
solicitation process as set forth herein) whenever necessary to ensure
the impartial, equitable and thorough evaluation of each proposal. The
panel will be composed of program office and other personnel, including
representatives of Procurement, Counsel, and, as deemed appropriate by
the appointing official, supplemented by Personnel from other Government
agencies. The representative of Counsel will be an ex-officio
(nonvoting) member of the panel. Personnel from DOE management or
operating contractors may be used as advisors to the panel when their
services are necessary and available as long as the approvals and
procedures in 927.70 and 915.613(f) are followed.
(c) Evaluation criteria. The evaluation criteria shall be specified
in the notice along with a narrative description of their relative
importance. The criteria below, to the extent applicable, as well as
any additional criteria stated in the program opportunity notice, shall
be considered:
(1) The overall technical feasibility of the proposed effort;
(2) The contribution which the proposed effort is expected to make to
DOE in carrying out its program responsibilities, including, but not
limited to, solving energy extraction and storage, transportation,
conversion, waste utilization, and conservation problems;
(3) The capabilities, related experience, facilities,
instrumentation, or techniques which the proposer possesses and offers,
and which are considered to be integral factors for achieving the
objective(s) of the proposal;
(4) The qualifications, capabilities, experience, and availability of
the proposed key personnel;
(5) The ability of the proposer to furnish necessary financial
support;
(6) Project and financial plans for management of the activities
including the adequacy of proposed arrangements among all participants;
(7) Plans for involvement of the small business community;
(8) Cost realism and probable cost to the government.
(d) Program policy factors. Program policy factors are those factors
which, while not appropriate indicators of a proposal's individual merit
(i.e., technical excellence, proposer's ability, cost, etc.), are
relevant and essential to the process of choosing which of the proposals
received will, taken together, best achieve the program objectives. All
such factors shall be predetermined and specified in the notice so as to
notify proposers that factors which are essentially beyond their control
will affect the selection process. The following are examples of
possible program policy factors:
(1) It is desirable, because of the nature of the energy source, the
type of projects envisioned, or limitations of past efforts, to select
for award or support a group of demonstration projects with a broad or
specific geographic distribution;
(2) It is desirable to select for award or support (for reasons that
must be stated) projects from diverse types and sizes of proposing
organizations;
(3) It is desirable to select for award or support a group of
projects which represents a diversity of methods, approaches,
applications, or kinds of work; and
(4) It is desirable, due to the nature of certain projects or
proposing organizations, to select for award or support duplicative or
complementary efforts or projects.
(e) Selection official. The selection official will be as provided
in 915.
(f) Preliminary review. (1) Prior to making a comprehensive
evaluation of a proposal, the SEB, or the receiving office when an SEB
is not required, shall determine that it:
(i) Contains sufficient technical, cost, and other required
information to enable comprehensive evaluation; and
(ii) Has been signed by a responsible official of the proposing
organization or a person authorized to obligate such organization.
(2) If the proposal does not meet these requirements, a comprehensive
evaluation shall not be made. In such a case, a prompt reply shall be
sent to the proposer, indicating the reason(s) for its not being
selected for award or support under the PON.
(g) Comprehensive evaluation. The basic task in the evaluation and
selection of proposals for award or support is to assess their relative
merit in order to determine which of them offers the greatest likelihood
for achievement of the program objectives stated in the notice,
considering technical quality, ability of the proposer, estimated cost,
and other relevant factors. Proposals which survive preliminary review
shall be evaluated by an SEB or a panel, as applicable, in accordance
with the criteria stated in the notice. The Source Selection Official
will select proposals for support or award from the findings established
by the SEB or panel, as applicable. In this latter process, the
selection official will take into account the relevant program policy
factors in order to determine the mix of proposed projects which will
best further specific program goals. All findings and selections are to
be documented, signed, and maintained to provide an adequate record of
the proceedings.
(49 FR 11974, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984)
48 CFR 917.7204 Award or support.
While only those proposals which further the needs of the program as
specified in the notice will be considered for award or support, DOE may
accept for award or support all, none, or any number or part of the
proposals submitted.
48 CFR 917.7205 Unsolicited proposals for commercial demonstrations.
See 915.503.
48 CFR 917.7206 Optional two-step method.
Where a large number of proposals are anticipated, proposals may be
limited to technical considerations with cost proposals subsequently
requested from those proposers whose technical proposals are evaluated
as technically acceptable.
48 CFR 917.7206 Subpart 917.73 -- Program Research and Development Announcements
48 CFR 917.7300 Scope of subpart.
(a) This subpart establishes procedures for the submission,
evaluation, and selection for award or support of proposals offered in
response to specific program research and development announcements
(PRDAs) issued by DOE to conduct research, development, and related
activities in the energy field.
(b) As a result of a PRDA, a contract, grant or cooperative agreement
may be executed. If the intended relationship is expected to be a
contract this regulation shall be followed. If the intended
relationship is expected to be a financial assistance instrument the DOE
Assistance Regulations (DOE-AR) shall be followed. Specifically, DOE-AR
600.234 (10 CFR 600.234) will apply if the intended relationship is
expected to be a cooperative agreement. In any event, any public
notice, solicitation, or request for applications or proposals should
indicate whether the intended relationship will be one of acquisition or
assistance and state that the DEAR will govern if a contract is entered
into and that the DOE-AR will govern if a financial assistance
instrument is utilized.
(c) This subpart applies to efforts by the DOE to conduct, or
participate in joint or cooperative projects for research, development,
and related activities with individuals, private entities (including
educational institutions, nonprofit organizations, and commercial
industrial organizations), or public entities (including State and local
governments, but not Federal agencies), provided, however, that the
conditions set forth in 917.7301-1(c) exist.
917.7301 Policy and prerequisites.
48 CFR 917.7301-1 General.
(a) PRDAs shall be used to provide potential proposers with
information concerning DOE's interest in entering into arrangements for
research, development, and related projects in specified areas of
interest. It is DOE 's intent to solicit the submission of ideas which
will serve as a basis for research, development, and related activities
in the energy field. It is DOE's desire to encourage the involvement of
small business concerns, small disadvantage business concerns, and
women-owned small business concerns in research and development
undertaken pursuant to PRDAs.
(b) The PRDA should not replace existing acquisition procedures where
a requirement can be sufficiently defined for solicitation under
standard advertised or negotiated acquisition procedures. Similarly, it
should not inhibit or curtail the submission of unsolicited proposals.
However, a proposal which is submitted as though it were unsolicited but
is in fact germane to an existing PRDA shall be treated as though
submitted in response to the announcement or returned without action to
the proposer, at the proposer's option. Further, the PRDA is not to be
used in a competitive situation where it is appropriate to negotiate a
study contract to obtain analysis and recommendations to be incorporated
in the subsequent request for proposals.
(c) The PRDA is to be used only where:
(1) Research and development is required in support of a specific
project area within an energy program with the objective of advancing
the general scientific and technological base, and this objective is
best achieved through:
(i) A diversity of possible approaches, within the current state of
the art, available for solving the problems;
(ii) The involvement of a broad spectrum of organizations in seeking
out solutions to the problems posed;
(iii) The application of the unique qualifications or specialized
capabilities of many individual proposers which will enable them to
perform portions of the research project (without necessarily possessing
the qualifications to perform the entire project) so that the overall
support may be broken into segments which cannot be ascertained in
advance; and,
(iv) The fostering of new and creative solutions.
(2) Consistent with (c)(1) of this section, it is anticipated that
choices will have to be made among dissimilar concepts, ideas, or
approaches; and
(3) It is determined that a broad range of organizations exist that
would be capable of contributing towards the overall research and
development goals identified in (c)(1) of this section.
(d) The PRDA shall be synopsized in the Commerce Business Daily prior
to release. The announcement shall also be circulated directly to
interested individuals, private and public entities (excluding Federal
agencies), and associations thereof to the maximum extent feasible.
(49 FR 11974, Mar. 28, 1984, as amended at 55 FR 33314, Aug. 15,
1990)
48 CFR 917.7301-2 Determination to use and approval of content.
(a) Determination of use. (1) Before the PRDA is selected as the
appropriate solicitation procedure, the Head of the Contracting Activity
expected to issue the announcement shall consult with requiring program
office to assure that the PRDA is the appropriate solicitation method.
A written program determination shall be made to show that the
conditions in 917.7301-1(c) exist to support the conclusion that use of
the PRDA procedure is both necessary and appropriate. The determination
must not be merely conclusory but shall be supported by specific facts
and explanations.
(2) (Reserved)
(3) The approved determination shall be included in the PRDA file.
(b) Approval and content. (1) A PRDA may be originated at whatever
level is consistent with the program objectives established by the
Senior Program Official.
(2) The PRDA content must be approved by the Senior Program Official
or designee after prior concurrence by Counsel, and the Procurement
Director of the office assigned to issue the PRDA.
(3) All PRDAs will be issued by the Head of the Contracting Activity
or designee.
48 CFR 917.7301-3 Information to be included.
Each PRDA shall include:
(a) A summary of the area(s) of program interest, expanded as
appropriate, to include problems and objectives;
(b) A time schedule for submission of, and action on, proposals;
(c) Information to be provided in the proposals;
(d) Evaluation criteria;
(e) Program policy factors;
(f) Other information, terms and conditions which shall apply to the
particular PRDA;
(g) Place for, and manner of, submission;
(h) A unique number for identification purposes;
(i) A statement notifying potential proposers that an announcement
does not commit DOE to pay any proposal preparation costs and that DOE
reserves the right to select for award or support any, all, or none of
the proposals received in response to an announcement, and
(j) A late proposal provision (see FAR 15.412).
48 CFR 917.7301-4 Information to be provided in proposals.
(a) All proposals should be specific, concise, and require inclusion,
as appropriate, the following information:
(1) Name and address of the entity(ies) submitting the proposal;
(2) Date of proposal submission;
(3) Identification of the PRDA (by number and title) to which the
proposal responds;
(4) Type of entity(ies) submitting the proposal, whether public
(including State and local governments), or private (including profit
and nonprofit organizations and educational institutions);
(5) Concise title and abstract of the proposed project or effort;
(6) An outline and narrative of the proposed effort which shall
specifically address and reference the evaluation criteria and, to the
extent possible, include:
(i) Objectives of the proposed effort;
(ii) Detailed plan of approach (procedures, concepts, limitations,
timetables of key milestones, and expected accomplishments or research
results);
(iii) Internal management controls applicable to conduct of the work;
(iv) Scope and methods of management support;
(v) Details concerning previous or ongoing work performed in the
category(ies) of research proposed, or in related fields;
(vi) Form and amount of funding, or other contribution, if any, to be
provided by the proposer;
(vii) Location where the work will be performed;
(viii) Cost schedule detailing estimated costs for manpower and other
resources (SF 1411 with supporting data as described at FAR 15.804-6);
and
(ix) Projected date of completion of the proposed effort;
(7) Resumes of key personnel to be involved which include a
description of relevant experience and associated dates;
(8) A current financial statement;
(9) Period for which the proposal is valid (if other than that
stipulated in the announcment);
(10) Names and telephone numbers of proposer's primary business and
technical personnel whom DOE may contact during evaluation; and
(11) Signature and title of an official of the proposing
organization(s) authorized to obligate such organization(s).
(b) Proposer should be advised that if a proposal will contain
proprietary data or privileged business information which the proposer
intends to be used by the DOE for evaluation purposes only shall be
marked on the cover sheet with the notice prescribed in 927.402-3(d).
(c) Representations, certifications and acknowledgements required by
law or regulation shall also be submitted as specified in the
announcement.
48 CFR 917.7302 Cost participation.
The provision of DOE's cost participation policy in 917.70 shall
apply, as applicable, to proposals submitted in response to PRDA's.
48 CFR 917.7303 Method and criteria for evaluation and selection.
(a) General policy. Information contained in proposals offered in
response to PRDAs shall be handled in accordance with the policies and
procedures set forth in 927.402-3(d) pertaining to the marking and
handling of proprietary data and privileged business information.
(2) Late proposals, modifications of proposals, and withdrawals of
proposals shall be handled in accordance with FAR 15.412.
(b) Selection panel. A panel appointed by the cognizant program
office will evaluate proposals submitted in response to a PRDA. The
panel will be composed of program office and other personnel, including
representatives from Procurement, Counsel, and, as deemed appropriate by
the appointing official, supplemented by personnel from other Government
agencies. The representative of Counsel will be an ex-office
(nonvoting) member of the panel. Personnel from prime management or
operating contractors may be used as advisors to the panel when their
services are necessary and available as long as the approvals and
procedures in 927.70 are followed.
(c) Evaluation criteria. The evaluation criteria shall be specified
in the announcement along with a narrative description of their relative
importance. The following items are illustrative of the elements which
may be considered as evaluation criteria:
(1) Overall technical feasibility of the proposed effort;
(2) Adequacy and relevance of the proposed research plan, including
validity tests as related to the proposed goals;
(3) The capabilities, related experience, facilities,
instrumentation, or techniques which the proposer possesses and offers,
and which are considered to be integral factors for achieving the
objective(s) of the proposal:
(4) The qualifications, capabilities, experience, and availability of
the proposed key personnel;
(5) The ability of the proposer to furnish necessary financial
support;
(6) Project and financial plans for management of the activities
including the adequacy of proposed arrangements among all participants.
(7) Plans for involvement of the small business community.
(8) Cost realism and probable cost to the government.
(d) Program policy factors. Program policy factors are those factors
which, while not appropriate indicators of a proposal's individual merit
(i.e., technical excellence, proposer's ability, cost, etc.) are
relevant and essential to the process of choosing which of the proposals
received will, taken together, best achieve the program objectives. All
such factors shall be predetermined and specified in the announcement so
as to notify proposers that factors which are essentially beyond their
control will affect the selection process. The following are examples
of possible program policy factors:
(1) It is desirable, because of the nature of the energy source, the
type of projects envisioned, or limitations of past efforts, to select
for award or support a group of projects with a broad or specific
geographic distribution;
(2) It is desirable to select for award or support (for reasons which
must be stated) projects for diverse types and sizes of proposing
organizations;
(3) It is desirable to select for award or support a group of
projects which represent a diversity of methods, approaches,
applications, or kinds of work; and
(4) It is desirable, due to the nature of certain projects or
proposing organizations, to select for award or support duplicative or
complementary efforts or projects.
(e) Selection official. The selection official will be as provided
in 915.612.
(f) Preliminary review. (1) Prior to making a comprehensive
evaluation of a proposal, the selection panel shall determine that it:
(i) Contains sufficient technical, cost, and other required
information to enable comprehensive evaluation; and
(ii) Has been signed by a responsible official of the proposing
organization or a person authorized to obligate such organization.
(2) If the proposal does not meet these requirements, a comprehensive
evaluation shall not be made. In such case, a prompt reply shall be
sent to the proposer, indicating the reason(s) for its not being
selected for award or support under the PRDA.
(g) Comprehensive evaluation. The basic task in the evaluation and
selection proposals for award or support is to assess their relative
merit in order to determine which of them offer the greatest likelihood
for achievement of the program objectives stated in the announcement,
considering technical quality, ability of the proposer, estimated cost,
and other relevant factors. Proposals which survive preliminary review
shall be evaluated by the panel in accordance with the criteria stated
in the announcement. The Source Selection Official will select
proposals for support or award from the findings established by the
panel. The selection official will take into account the relevant
program policy factors in order to determine the mix of proposed
projects which will best further specific program goals. All findings
and selections are to be documented, signed, and maintained to provide
an adequate record of the proceedings.
48 CFR 917.7304 Award or support.
While only those proposals which best further the needs of the
program as specified in the announcement will be considered for award or
support, DOE may accept for award or support, all, none, or any number
part of the proposals submitted.
48 CFR 917.7304 Subpart 917.74 -- Acquisition, Use, and Disposal of Real Estate
48 CFR 917.7400 Scope of subpart.
This subpart addresses DOE policies and procedures to be applied in
DOE cost-type contracts which include authorization to acquire, use, and
dispose of real estate or interest therein for the performance of a
contract or contracts; and, DOE assumes liability for, or otherwise
will pay, or may be expected to pay, for the acquired real estate as a
reimbursable contract cost.
48 CFR 917.7401 General.
Ordinarily Government agencies are not directly concerned with the
real estate management procedures for fixed price or cost-type
contractors. However, special circumstances and situations arise under
cost-type contracts when, in the performance of their contract or
subcontract, the performer shall be required, or otherwise find it
necessary, to acquire real estate or interests therein by:
(a) Purchase, on DOE's behalf or in its own name, with title
eventually vesting in the Government.
(b) Lease, and DOE assumes liability for, or otherwise will pay for
the obligation under the lease.
(c) Acquisition of temporary interest through easement, license or
permit, and DOE funds the cost of the temporary interest.
48 CFR 917.7402 Policy.
It is the policy of the Department of Energy that when the real
estate acquisitions described in 917.7401 are made, the following
policies and procedures shall be applied to such acquisitions:
(a) Real estate acquisitions shall be mission essential;
effectively, economically, and efficiently managed and utilized; and
disposed of promptly, when not needed;
(b) Acquisitions shall be justified, with documentation which
describes the need for the acquisitions, general requirements, cost,
acquisition method to be used, site investigation reports, site
recommended for selection, and property appraisal reports; and
(c) Acquisition by lease, in addition to the requirements in
paragraphs (a) and (b) of this section:
(1) Shall not exceed a one-year term if funded by one-year
appropriations.
(2) May exceed a one-year term, when the lease is for special purpose
space funded by no-year appropriations and approved by the Department.
(3) Shall contain an appropriate cancellation clause which limits the
Government's obligation to no more than the amount of rent to the
earliest concellation date plus a reasonable cancellation payment.
(4) Shall be consistent with Government laws and regulations
applicable to real estate management.
48 CFR 917.7403 Application.
(a) The Officer of Project and Facilities Management is the
Headquarters contact point for Departmental policies and procedures
governing the acquisition, use, and disposal of the Department's real
estate or interests therein. Real estate interests include purchases,
leases, easements, permits and licenses.
(b) It is the contracting officer's responsiblilty to coordinate with
the Office of Project and Facilities Management when contractor real
estate acquisitions meet the criteria set forth in 917.7401 in order to
assure that appropriate procedures are followed by the contractor.
(c) The clause at 952.217-70 will be included in contracts or
modifications where contractors acquisitions are expected to meet the
criteria specified in this subpart.
48 CFR 917.7404 Competition.
(a) Contracting officers shall make certain that solicitation
documents:
(1) Require proposals to specify additional facilities and equipment
which must be acquired for contract performance, the estimated cost of
individual items, and whether acquisition of such property will be
financed by the prospective contractor or whether the Government will be
requested to provide the required items.
(b) Explain whether it is the Government's intention to provide
property, when it is known prior to solicitation that contract
performance will require additional facilities or equipment.
(c) Require prospective contractors to:
(i) List items (including dollar value) of Government-owned property
in the offerors possession which is proposed to be used in performance
of the prospective contract;
(ii) Identify the contract or other instrument under which the
property is accountable; and
(iii) Present written permission to use such property in the
performance of the prospective DOE contract from the Government
contracting officer having cognizance of the property.
(d) Include a statement that the user will assume all costs related
to making the property available for use (e.g., transportation,
installation, rehabilitation, modification, etc.) unless the Government
is to assume such costs.
(e) Include a statement which explains the consideration to be given
Government property during evaluation of bids and proposals. This is
insure that all prospective bidders and offerors understand that
Government property will be an important consideration in evaluating
their bids and proposals.
48 CFR 917.7404 Subpart 917.75 -- Multiple Awards-Phased Acquisitions
48 CFR 917.7500 Scope of subpart.
Some projects lend themselves to the use of multiple phase, parallel
contracts. The basic decision in regard to the use of multiple awards
for phased acquisitions will be made by the program office based on
technical, schedule, and cost considerations. In the first phase, more
than one contractor may undertake a design effort. For the second and
succeeding phases, one or more contractors may then be selected from the
preceding phase's participants. Since there is an important selection
decision to be made at the end of any phase, explicit evaluation and
selection procedures will be made known to the contractors prior to
competitive selection for succeeding phases.
48 CFR 917.7501 RFP provisions.
Where multiple awards for phased acquisitions are contemplated,
requests for proposals (RFPs) for the initial phase shall include:
(a) Notice that the initial negotiated contract will be for Phase I
only; however, the Government reserves the right to require a
proposal(s) for additional phases of the project as defined in the
provisions of the RFP.
(b) If appropriate, notice that competition on subsequent phases will
be restricted to the Phase I contractor(s).
(c) Evaluation and qualification criteria should not ordinarily be
restricted to Phase I consideration only, but rather should be designed
to assure that selected offerors have the requisite technical,
management and financial capacity to compete for and perform all phases.
(d) A requirement that each contractor submit a proposal to perform
subsequent phases. Instructions for proposal submission and the
evaluation criteria to be used in the selection of contractor(s) for
subsequent phases will be provided to the Phase I contractors, by
letter, as early as possible and at least 90 days prior to the date for
submission of proposals.
(e) A requirement of each Phase I, or subsequent phase, contractor to
submit a comprehensive report covering actual and projected
accomplishments under the present phase. This information will be used
in addition to the proposal and the Government's assessment of
contractor performance in the evaluation and selection process for
subsequent phases. The report shall, as a minimum address the
technical, schedule, and cost aspects of the phase of work now under
contract.
48 CFR 917.7502 Evaluation.
(a) The contracting officer or other source selection official as
appropriate, shall establish an evaluation team sufficiently in advance
of the Phase II proposal due date. The evaluation team shall consist of
a chairman from the program office and representatives of procurement
and other DOE programmatic or functional areas as appropriate. Counsel
will be included as a non-voting advisory member of the evaluation team
as deemed appropriate.
(b) The evaluation team will develop the evaluation criteria and
proposal instructions to be furnished to the contractors. The purpose
of the evaluation is to select that or those offerors which best
satisfies the DOE requirements for successful completion of the project.
The evaluation shall consider such factors as technical, price,
programmatic and other requirements. The evaluation process shall be
accomplished in an impartial, equitable, comprehensive, and timely
fashion to assure the selection of one or more organizations, which
offer the best possibility for successful performance, cost and other
factors considered. It is contemplated that the initial phase of
multiphase parallel contracts awarded under these procedures will be
performed in the same timeframe so that a single competitive evaluation
and selection can be accomplished at one point in time. Accordingly,
the contracts should contain provisions permitting the Government to
synchronize contractor Phase I performances through acceleration or
deceleration, as is appropriate, to achieve simultaneous completion of
the Phase I activities by all firms under consideration. A thorough and
detailed evaluation shall be completed so as to provide the basis on
which the best selection can be made.
48 CFR 917.7502 SUBCHAPTER D -- SOCIOECONOMIC PROGRAMS
48 CFR 917.7502 PART 919 -- SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS
48 CFR 917.7502 Subpart 919.2 -- Policies
Sec.
919.201 General policy.
48 CFR 917.7502 Subpart 919.5 -- Set-Asides for Small Business
919.501 General.
919.502-2 Total set-asides.
919.503 Setting aside a class of acquisitions.
48 CFR 917.7502 Subpart 919.6 -- Certificates of Competency and
Determinations of Eligibility
919.602-1 Referral.
48 CFR 917.7502 Subpart 919.7 -- Subcontracting With Small Business and
Small Disadvantaged Business Concerns
919.705-2 Determining the need for a subcontracting plan.
919.705-5 Awards involving subcontracting plan.
919.705-6 Postaward responsibilities of the contracting officer.
919.708 Solicitation provisions and contract clauses.
48 CFR 917.7502 Subpart 919.8 -- Contracting With the Small Business
Administration (The 8(a) Program)
919.805-2 Procedures.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 11997, Mar. 28, 1984, unless otherwise noted.
48 CFR 917.7502 Subpart 919.2 -- Policies
48 CFR 919.201 General policy.
(c) The Director, Office of Small and Disadvantaged Business
Utilization and small disadvantaged business programs. The Executive
Director, Federal Energy Regulatory Commission, is responsible for the
administration of the Commission's small and small disadvantaged
business programs. This includes responsibility for developing,
implementing, executing, and managing these programs, providing advice
on these programs, and representing DOE before other Government agencies
on matters primarily affecting small and small disadvantaged businesses.
Heads of Contracting Activities (HCAs) shall appoint a small
business/small disadvantaged business (SB/DB) specialist.
(50 FR 12185, Mar. 27, 1985)
48 CFR 919.201 Subpart 919.5 -- Set-Asides for Small Business
48 CFR 919.501 General.
(c) The Department has established an internal comprehensive review
and screening process for acquisitions exceeding $10,000. The review is
intended to enhance the prospect of participation by small business,
small disadvantaged business, and women-owned small business concerns.
(g) The policy prescribed by FAR 19.501(g), which requires that a
product or service acquired by a successful small business set-aside
shall continue to be acquired on a set-aside basis, is applicable to DOE
on a contracting activity-wide basis. The small and disadvantaged
business specialist at a contracting activity shall maintain a list of
such small business set-aside awards.
(52 FR 38425, Oct. 16, 1987)
48 CFR 919.502-2 Total set-asides.
In considering set-asides in the area of architect engineer
contracts, contracting personnel must first consider the special
procedures required by the Brooks Act, Pub. L. 92-582 pertaining to
this type acquisition.
48 CFR 919.503 Setting aside a class of acquisitions.
By agreement with SBA, the DOE has established a class set-aside for
construction acquisitions not exceeding $3 million, including new
construction and repair and alteration of structures. Lists of other
class set-asides shall be maintained by all DOE contracting offices.
These lists shall be updated at least annually.
48 CFR 919.503 Subpart 919.6 -- Certificates of Competency and Determinations of Eligibility
48 CFR 919.602-1 Referral.
(a)(2) The contracting officer shall coordinate with the small and
disadvantaged business specialist and the SBA procurement center
representative prior to referring a determination of nonresponsibility
of a small business to the SBA Regional Office.
(52 FR 38425, Oct. 16, 1987)
48 CFR 919.602-1 Subpart 919.7 -- Subcontracting With Small Business and Small Disadvantaged Business Concerns
48 CFR 919.705-2 Determining the need for a subcontracting plan.
(a) It is the policy of DOE to comply with the spirit as well as the
requirements of Pub. L. 95-507. FAR requires that options be considered
in determining whether the dollar value of a contract meets the dollar
threshold necessitating a subcontracting plan. Accordingly, if a
contract includes options or similar provisions which the contracting
officer knows at the time of award will result in an overall contract
value exceeding $500,000, then, although the ultimate value of the
contract may not be known at the time of initial award, a subcontracting
plan will nevertheless be obtained if substantial subcontracting
opportunities are determined to exist. Examples of such actions which
may require a subcontracting plan are contracts for basic research,
including special research contracts awarded pursuant to Subpart 917.71,
which fund a portion of a project under the initial award, with
subsequent research funded on an annual basis by contract modification.
The plan should be applicable to the basic contract and then be
modified, as appropriate, through the life of the contract.
(b) A subcontracting plan is generally not obtained from an offeror
until selection of an awardee except in those cases where a plan is
requested of all firms in a competitive range (see FAR 19.705-2(d)).
When it is determined that a subcontracting plan is required in
accordance with FAR 19.705-2, the contracting officer shall request
development and submission for approval of a subcontracting plan which
includes all of the elements listed in the contract clause at FAR
52.219-9 or shall determine in writing as required by FAR 19.705-2 that
a subcontracting plan is not required because subcontracting
opportunities do not exist.
(c) A copy of the determination required by FAR 19.705-2(c) shall be
provided, prior to award, to the small and disadvantaged business
specialist at the contracting activity.
(52 FR 38425, Oct. 16, 1987)
48 CFR 919.705-5 Awards involving subcontracting plan.
(a)(5) Ensure that an acceptable plan is incorporated into and made a
material part of the contract by including in every contract with a plan
a provision which either incorporates the approved plan into the
contract by reference, or makes the plan an attachment to, and thus a
part of, the contract. Subsequent revisions to a plan, i.e., revised
goals or other changes, may be incorporated by reference on approval of
the contracting officer. The subcontracting plan must be included in
the official contract file when the plan is incorporated into the
contract by reference.
(b) When the exigencies of the situation prevent obtaining a
subcontracting plan prior to the award of a letter contract, the plan
shall be obtained prior to definitization.
(49 FR 11997, Mar. 28, 1984, as amended at 52 FR 38425, Oct. 16,
1987)
48 CFR 919.705-6 Postaward responsibilities of the contracting officer.
A copy of the notification to the SBA of awards of contracts,
amendments or modifications that contain subcontracting plans, as
required by FAR 19.705-6(a), shall be provided to the OSDBU.
48 CFR 919.708 Solicitation provisions and contract clauses.
(b) When using the clause at FAR 52.219-9, Small Business and Small
Disadvantaged Business Subcontracting Plan, it shall be modified as
specified at 952.219-9. The effect of this modification is to relieve
DOE contractors and subcontractors from the burden of submitting the
SF295 quarterly report since DOE is able to extract this information
from the SF294 report. However, in order to do this, DOE must obtain
the SF294 on a quarterly basis rather than semiannually. The
modification also requires DOE contractors and subcontractors to
indicate, at the ''Remarks'' section of the form, the number and dollar
value of awards to labor surplus area concerns if required by the terms
of the contract. Upon receipt of these reports, contracting officers
shall input the information to the DOE Subcontracting Data System.
(c) Advance approval of the Procurement Executive, or designee, is
required prior to including any small and small disavantaged business
concerns incentive subcontracting provision in any solicitation or of
this clause in any contract.
48 CFR 919.708 Subpart 919.8 -- Contracting With the Small Business Administration (The 8(a) Program)
48 CFR 919.805-2 Procedures.
Acquisitions involving section 8(a) competition are exempt from
Department of Energy formal Source Evaluation Board procedures cited in
subpart 915.6, Source Selection, but must still comply with source
selection procedures set forth in the FAR in accordance with 13 CFR
124.311(f)(1).
(56 FR 42947, Aug. 30, 1991)
48 CFR 919.805-2 PART 920 -- LABOR SURPLUS AREA CONCERNS
48 CFR 919.805-2 Subpart 920.1 -- General
Sec.
920.102 General policy.
920.106 Records and reports.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
48 CFR 919.805-2 Subpart 920.1 -- General
48 CFR 920.102 General policy.
Acqusitions shall be reviewed for potential labor surplus area
set-aside consideration in accordance with 919.501(c).
(49 FR 11997, Mar. 28, 1984)
48 CFR 920.106 Records and reports.
Records and reports shall be as required by ''A Guide to Preparation
of DOE Quarterly Procurement and Financial Assistance Reports.''
(49 FR 11997, Mar. 28, 1984)
48 CFR 920.106 PART 922 -- APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION
48 CFR 920.106 Subpart 922.1 -- Basic Labor Policies
Sec.
922.103 Overtime.
922.103-4 Approvals.
48 CFR 920.106 Subpart 922.4 -- Labor Standards for Contracts Involving
Construction
922.470 Applicability.
922.471 Decisions and other guides in difficult areas.
922.472 Wage determinations.
922.473 Administration and enforcement.
48 CFR 920.106 Subpart 922.6 -- Walsh-Healey Public Contracts Act
922.608-3 Protests against eligibility.
922.608-4 Award pending final determination.
922.608-5 Award.
922.608-6 Postaward.
48 CFR 920.106 Subpart 922.8 -- Equal Employment Opportunity
922.800 Scope of subpart.
922.802 General.
922.803 Responsibilities.
922.804 Affirmative action programs.
922.804-1 Nonconstruction.
922.804-2 Construction.
922.805 Procedures.
922.807 Exemptions.
48 CFR 920.106 Subpart 922.70 -- Special Concerns Affecting Construction
Laborers and Mechanics
922.7000 Scope of subpart.
922.7001 Responsibilities.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 11998, Mar. 28, 1984, unless otherwise noted.
48 CFR 920.106 Subpart 922.1 -- Basic Labor Policies
48 CFR 922.103 Overtime.
48 CFR 922.103-4 Approvals.
(d) Approvals. (1) Where the cost to the Government may be affected,
approval of hours of work in excess of the normal workweek is justified
only in those instances and for those employees where it can be shown
that overtime would provide needed and demonstrable impetus to the
accomplishment of DOE objectives and that all other means of meeting
these objectives have been considered and found inadequate or not
feasible. Accordingly, Heads of Contracting Activities shall:
(i) Establish controls to prevent excess casual overtime and to
assure that such overtime work is in the best interest of the
Government. By casual overtime is meant (A) work in excess of the
normal workweek (or in excess of an authorized extended workweek) which
cannot be regularly scheduled in advance, or (B) regularly scheduled
work in excess of the normal workweek for a period of four consecutive
weeks or less; and
(ii) Establish controls to assure that any use of any extended
workweek schedule is in the best interest of the Government. Extended
workweek means a workweek regularly scheduled and established in excess
of the normal workweek for a period in excess of four consecutive weeks.
48 CFR 922.103-4 Subpart 922.4 -- Labor Standards for Contracts Involving Construction
48 CFR 922.470 Applicability.
(a) Although the statutes required to be followed per FAR 22.400
direction do not contain definitions, the Secretary of Labor's
regulations in 29 CFR 5.2 include definitions, of ''contract,''
''building,'' ''work,'' ''construction,'' ''prosecution,''
''completion,'' ''repair,'' ''public building,'' and ''public work.'' In
general, contracts are classifiable as being covered by the statutes
when performance by the contractor consists substantially of the
erection or assembly of new plants (including laboratory or other
buildings or works), or the alteration and/or repair including painting
and decorating, of new and existing plants. The fact that certain
contracts may be entered into without regard to general statutory
requirements as to advertising for bids or proposals, or upon a
cost-reimbursement basis or otherwise, is not determinative in the
classification of such contracts, activities, construction projects, or
other work or services performed thereunder.
(b) Contracts for servicing or maintenance work are not ordinarily
subject to the requirements of this subpart. Maintenance includes the
routine, recurring type of work necessary to keep a facility in such
condition that it may be continuously used at an established capacity
and efficiency for its purpose. However, if such maintenance or service
contracts call for substantial and segregable task for construction,
alteration or repair, the labor standards provision for construction
contracts will be applicable to those items. All contracts in excess of
$2,000 for painting of public buildings or public works, whether
performed in connection with the original construction or as regular
maintenance, are subject to the labor standards provisions for
construction contracts.
(c) The requirements that must be followed as a result of FAR 22.4
and other parts of FAR 22 in respect to the Davis-Bacon and Copeland
Acts do not apply to the following:
(1) Contracts, regardless of their nature, not in excess of $2,000
(Does not apply to the Copeland Act). However, no item of work, the
cost of which is estimated to be in excess of $2,000, shall be
artificially divided into portions less than $2,000 for the purpose of
avoiding the applicability of the Davis-Bacon Act.
(2) Contracts for furnishing supplies and equipment, including
installation, where the installation requires only an incidental amount
of work (as defined in paragraph (e) of this section) that would
otherwise be considered construction, alteration and/or repair of a
public building or public works.
(3) Contracts for servicing or maintenance work in an existing plant,
including installation or movement of machinery or other equipment, and
plant rearrangement, which involve only an incidental amount of work (as
defined in paragraph (e) of this section) that would otherwise be
considered construction, alteration and/or repair.
(4) Contracts for operational or maintenance activities (e.g.,
production, research and development, or community services, as
distinguished from contracts for construction). In general, these are
contracts where performance by the contractor consists primarily of the
utilization of existing facilities and the services of personnel to
produce materials, conduct research and development, or provide
community-type services, and of the use of or maintenance of plant.
However, the classification of a contract as a contract for operational
or maintenance activities does not necessarily mean that all work and
activities at the contract location are not covered, since it may be
necessary to separate out work which should be classified as covered.
As used in connection with ''operational activities,'' the term
''produce'' means to manufacture, make, or refine special nuclear or
other material; to separate material from other substances in which it
is contained; or to make new material. The ''materials'' includes
supplies, articles, or equipment; the term ''research and development''
means the same as defined in 909.570-3.
(5) Contracts to be performed outside the United States and the
District of Columbia. (Does not apply to the Copeland Act.)
(6) Contracts for demolition, except when performed as a phase of a
covered construction project or when subsequent construction activity at
the site being cleared is contemplated.
(7) Contracts with a State or subdivision thereof.
(8) Contracts with railroads for construction services to the extent
that the services are performed by railroad employees covered by the
Railway Labor Act.
(d) It should be noted, however, that the requirements of FAR Subpart
22.4 do apply to work performed by laborers and mechanics employed by a
construction contractor or subcontractor at the site of the work under a
contract for the construction, alteration and/or repair, including
painting and decorating of public buildings or public works, which is
otherwise subject to these Acts whether or not such work would be
covered if it were a separate contract.
(e) As used in paragraph (c) (2) and (3) of this section, ''an
incidental amount of work'' is defined to mean work directly related to
the installation, movement or rearrangement of equipment or machinery,
relatively small in amount, and which does not include changes in a
facility affecting its architectural or structural strength, stability,
safety, size, or function as a public work.
(49 FR 11998, Mar. 28, 1984; 49 FR 38950, Oct. 2, 1984)
48 CFR 922.471 Decisions and other guides in difficult areas.
The following are examples of applications of the Davis-Bacon Act to
particular situations.
(a) Land-based prototypes. (1) The Department of Labor has held that
the construction of a full-scale operating prototype of a reactor and
all necessary nuclear power components, systems, and propulsion
equipment for a submarine is covered.
(2) The Department of Labor has held that assembling and fitting the
components of nuclear steam propulsion units in a prototype ship
situation into the hull sections, including installation of the pressure
vessels, turbo-generator sets, heat exchangers, control wiring, etc., is
covered.
(3) A later decision involving the prototype situation in (a)(2)
above indicates that the earlier rulings should not be construed as
intended to cover all equipment assemblies irrespective of the status of
construction and other pertinent factors.
(b) Paving. The construction of roads, including grading, and their
repair -- where such repair includes work in roadbeds before
resurfacing, building up shoulders, forming ditches, culverts and
bridges, and on the actual resurfacing of roads -- is covered. However
recurring-type maintenance work, such as patching surfaces, filling
chuck holes, patching shoulders, and resurfacing railroad crossings is
non-covered. Similarly, patch and maintenance work on a parking lot,
the replacement of bumper stops, and the repainting of parking dividers
is non-covered.
(c) Stationary boilers. The construction, alteration and/or repairs,
including installation and rebuilding, of stationary boilers costing in
excess of $2,000 for labor and materials is covered. Inspection may
reveal a need for replacement of pieces of insulation, individual tubes,
or other defective parts. Such minor maintenance, necessary to keep the
boiler in safe operating condition, is non-covered.
(d) Start-up of operating activity after fire or other catastrophe.
Rebuilding of a plant following a catastrophe, such as replacement of
structural members, roof trusses, walls, roof, utility services, and
process piping is covered. However, where process equipment can be
restarted and/or operational activities resumed prior to such
rebuilding, the actual work of start-up, including preliminary activity,
e.g., cleaning, drying, checking, adjustment, temporary services, and
temporary weather protection of equipment, essential to such resumption
of operational activity, is non-covered.
(e) Rehabilitation of facilities. By contrast with emergency
services needed to restore or maintain functional usefulness, as above
described, rehabilitiation (e.g., painting, change-out, rearrangement
and installation of equipment, replacement or repair of damaged parts of
a structure or of building services or equipment) of a facility is
covered. In such rehabilitation, the startup of equipment by operating
employees is non-covered.
(f) Painting. Although painting and decorating are specifically
mentioned in the Davis-Bacon Act, painting which is closely integrated
within operation and maintenance activities and such repainting as color
coding of process lines and service piping (including valves and
directional arrows), is non-covered. Likewise, application of various
materials for localizing contamination, painting of machine tools to
identify degree of contamination, and preventive maintenance such as
repainting of machine tools, equipment and plant structures are
non-covered when performed with a stable work force employed by the
operating contractor.
(g) Installation, rearrangement of adjustment of equipment. (1)
During construction. In the construction of a new facility -- whether
it is a production plant, a laboratory, or supporting facilities, such
as shops and warehouses -- an integral part of a construction project is
the installation of equipment (including mechanical equipment, building
services, instruments, etc.) which permits the facility to be utilized
for the purpose intended. Normally, the initial installation,
arrangement, adjustment, balancing, calibration, and checking of such
equipment is a logical part of the construction contract(s) for
completion of the facility and, whether or not included within the scope
of such contract(s), is covered.
(2) Plant start-up. At the time of the turnover of a DOE facility
from construction to operating activities, if the facility is turned
over a section at a time, some problems of coverage may arise. Usually,
it is essential that final checkout of a plant prior to the start-up of
plant operations be performed by personnel of the operating organization
and, as such, is not covered. The important thing is to work out a
practical plan that will assure: (i) Safe and effective start-up of the
facility, (ii) the fulfillment of obligations under applicable statutes,
and (iii) uninterruption of continuing construction at the facility.
(3) Equipment and equipment assemblies. Although the current
construction status of a public building or public work is not the
controlling factor as to coverage of supply-installation type contracts,
it is a factor to be considered in judging the applicability of the
Davis-Bacon Act. The Department of Labor has ruled (Walsh-Healey
Rulings and Interpretations No. 3, section 6(b)) that while contracts in
excess of $10,000 for equipment, including erection or installation, are
subject to the Walsh-Healey Act, they may be also covered under the
Davis-Bacon Act where more than an incidental amount (see 922.470(e)) of
work is involved. Examples given in this ruling include furnishing and
installation of mechanical equipment such as elevators or of generators
requiring prepared foundations or housing. The Department has indicated
that a contract for furnishing the initial installation of piping,
wiring, gas exhaust fans, plumbing, sheet metal work, and related
activities to install kitchen baking equipment was comparable to the
basic plumbing, wiring, and heating contracts and was covered. While
such a situation involves an initial installation, alteration or
rearrangement of existing facilities involving such work to accommodate
new or different equipment is also covered. Conversely, it follows that
where the test of more than an incidental amount of construction is not
met, and where the installation, rearrangement or adjustment of
equipment is not a logical part of any current related construction
project, it is non-covered.
(4) Telephone and utility systems. Contracts involving the
installation of telephone systems or utilities are not covered when the
work is performed by employees of the telephone or utility company
supplying the services, and the material and equipment installed are
owned by the telephone or utility company. Such installation is
considered to be an extension of the utility's services. However, a
contract for a telephone central system to be installed by the
manufacturer and owned by the United States has been held to be covered.
In addition, relocation of utility lines to accommodate construction of
a public work is covered.
(49 FR 11998, Mar. 28, 1984; 49 FR 39851, Oct. 2, 1984)
48 CFR 922.472 Wage determinations.
(a) The Heads of Contracting Activities are responsible for
submitting to the Wage and Hours Division, Employment Standards
Administration, Department of Labor, Washington, DC 20210, all DOE
requests for wage determinations, or individual determinations, or
extensions or modifications thereto. Requests for such determinations
shall be made on Standard Form 308, at least 30 calendar days before
they are required for use in advertising for bids or requests for
proposals.
(b) In general, the Davis-Bacon Act rates applicable to a contract at
the time it is awarded continue in effect during its term regardless of
whether it is a fixed-price or cost-reimbursement contract. However it
should be noted that:
(1) The minimum wage rates that will be paid to laborers and/or
mechanics engaged on jobs which are programmed on a fiscal year or
shorter basis are those predetermined by the Secretary of Labor to be
prevailing as of the date the program is approved by DOE for performance
by the contractor. However, in the event of a substantial addition to
the scope of a contract containing a ''general or area wage
determination,'' the current ''general or area wage determination,''
including modifications thereto, shall be made applicable to the
additional work. If the contract contains a ''project area or
installation (54A) determination,'' or an individual determination, and
substantial addition to the scope of the contract is made during the
fiscal year or shorter basis but more than 120 days from the date of the
determination, a new determination is required for the substantial
addition. Programmed work will be performed by the contractor under
continuing contracts for minor or miscellaneous construction, alteration
and/or repair, including painting and decorating.
(2) The minimum wage rates that will be paid to laborers and/or
mechanics engaged on subcontracts let by an operating contractor will be
those in the wage determination decision of the Secretary of Labor which
has been issued in conformance with 29 CFR 1.7.
(c) The Federal Register prints general or area wage determinations
as they are issued by the Secretary of Labor or designee.
(49 FR 11998, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 922.473 Administration and enforcement.
(a) The statutes and regulations alluded to in FAR 22.400 impose
direct responsibilities for administration and enforcement upon DOE.
Therefore, Heads of Contracting Activities and others, consistent with
their assignments of responsibilities and delegations of authority,
shall assure that DOE contract activities are carried out consistent
with these laws and regulations.
(b) Heads of Contracting Activities shall submit (to the Office of
Contractor Industrial Relations) reports, recommendations, and requests
for ruling and interpretations resulting from following the requirements
of FAR 22.400 and 922.400.
48 CFR 922.473 Subpart 922.6 -- Walsh -- Healey Public Contracts Act
48 CFR 922.608-3 Protests against eligibility.
When an eligibility determination made by the contracting officer is
challenged, this protest shall be handled in accordance with procedures
for agency protests against award, except the matter shall be submitted
to the Department of Labor for final determination. However, if the
eligibility determination challenged pertains to a small business, the
protest shall be forwarded to the Small Business Administration for
determination.
48 CFR 922.608-4 Award pending final determination.
(a) Award, as contemplated by FAR 22.608-4, may be made only with the
approval of the Head of the Contracting Activity.
48 CFR 922.608-5 Award.
The notice required by FAR 22.608-5(b) is to be sent to the
appropriate Department of Labor Regional Office in which the contractors
place of business is located. Regional Office locations are specified
at FAR 22.609.
48 CFR 922.608-6 Postaward.
(c) Any postaward actions of the type discussed at FAR 22.608-6
should be coordinated in advance with the Office of Industrial
Relations, Headquarters.
48 CFR 922.608-6 Subpart 922.8 -- Equal Employment Opportunity
48 CFR 922.800 Scope of subpart.
This subpart implements FAR 22.800. It applies to all DOE contracts
and subcontracts.
48 CFR 922.802 General.
48 CFR 922.803 Responsibilities.
(a) The Director, Office of Federal Contract Compliance Programs of
the Department of Labor has been delegated authority and responsibility
for carrying out the requirements of Executive Order 11246, as amended.
In conjunction with the delegation, contracting officers shall be
familiar with existing and any updated provisions of 41 CFR Ch. 60, and
assist the Department of Labor in its compliance responsibilities. DOE
contracting officers will include the applicable Equal Employment
Opportunity (EEO)) and Affirmative Action Program (AAP) requirements in
their solicitations and obtain the applicable reports of compliance from
the Office of Federal Contract Compliance Programs (OFCCP) (when
required) prior to awarding of contracts. The provisions of 41 CFR Ch.
60, are applicable to all DOE contracts.
(d) The OFCCP requires that requests for pre-award clearances be
directed to the OFCCP Regional Office in which the contractor's facility
is (to be) located. If OFCCP finds the contractor in compliance, the
contracting officer will be notified. Findings of non-compliance can be
communicated to the contracting officer by the OFCCP or Headquarters
Director or his designee. The appropriate Regional Office will provide
the appropriate contact point in cases of non-compliance. The Director,
Office of Industrial Relations (DOE HQ), when requested, will provide
assistance to contracting officers resolving non-compliance issues by
providing assistance in obtaining a final decision from the OFCCP.
(49 FR 11998, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 922.804 Affirmative action programs.
48 CFR 922.804-1 Nonconstruction.
In the event a prospective contractor or subcontractor is entering
into its first contract containing the Equal Opportunity clause, the
contracting officer shall determine that the prospective contractor
understands and appears able to conform to the requirements of the EEO
clause.
48 CFR 922.804-2 Construction.
(a) Construction contracts, including cost-sharing contracts, are
subject to OFCCP orders applicable in particular areas.
(1) When a proposed nonexempt construction contract is within a
geographic area where construction is subject to the provisons of
Federal EEO Bid Conditions, Part I or Part II, the solicitation shall
contain those bid conditions. The contracting officer shall include in
such solicitation a provision that ''the offeror shall adhere to the
affirmative action plan (bid conditions) set forth in this
solicitation.''
(2) Lists of areas for which OFCCP has designated specific
affirmative action requirements are available through the Procurement
Executive. Contracting officers should assure that this list and copies
of pertinent orders are made available to all concerned DOE offices and
to DOE contractors and construction subcontractors for work to be
performed in the specified geographical areas.
(b) Other nonexempt construction contracts. (1) When a proposed
nonexempt construction contract is not in a ''plan area'' and is in the
amount of $10,000 or more, offerors must agree to comply with the Equal
Employment Opportunity clause.
(2) When proposed nonexempt contracts of $1,000,000 or over are not
in plan areas and have not been designated as high impact, offerors also
must submit to the contracting officer details regarding specific
affirmative action steps to be taken by the offeror in connection with
all work under the contract. Such details shall include estimates of
the percentage of minority group persons expected to be employed in each
craft involved in the performance of the contract work. All
solicitations for construction contracts shall reference the affirmative
action requirements and the offeror's obligation to make good faith
efforts to employ women in craft positions.
(3) Pursuant to the OFCCP order dated August 30, 1976, agencies shall
develop ''Special Bid Conditions'' for use on high impact projects in
non-plan areas. These special bid conditions will include mandatory
goals and timetables for the utilization of minorities. The Procurement
Executive using the criteria issued by OFCCP will determine those
projects that are ''high impact.'' The contracting officer is
responsible for compliance with policies and procedures contained in the
OFCCP ''Construction Compliance Program Operations Manual.'' Language
for inclusion in solicitations or contracts contained in the manual may
be modified, provided all of the requirements are retained. The
contracting officer shall develop the goals and timetables and shall
confer with the appropriate OFCCP regional office. The Office of
Industrial Relations will provide assistance as necessary, when
requested. Special bid conditions will be submitted by the contracting
officer to the appropriate OFCCP regional office for approval unless
otherwise directed by the Procurement Executive. When special bid
conditions are applicable, adequate presolicitation lead time should be
allowed for submission of the special bid conditions to OFCCP national
and regional offices.
(c) An attempt to limit in any major respect the equal opportunity
requirements included in an invitation for bids or request for proposals
for a construction contract shall constitute grounds for a determination
that the offeror does not qualify as a responsible offeror and for
rejection of the bid or proposal. In the case of construction
acquisition by DOE prime contractors, this determination shall be made
only with the approval of the DOE contracting officer.
(49 FR 11998, Mar. 28, 1984, as amended at 56 FR 41965, Aug. 26,
1991)
48 CFR 922.805 Procedures.
(b) Furnishing posters. The contracting officer may obtain posters
from the Government Printing Office.
48 CFR 922.807 Exemptions.
(c) Contracting officer requests for exemption from E.O. 11246 should
be directed to the Procurement Executive for submission to the Director,
OFCCP.
48 CFR 922.807 Subpart 922.70 -- Special Considerations Affecting Construction Laborers and Mechanics
48 CFR 922.7000 Scope of subpart.
This subpart discusses DOE responsibilities and actions regarding DOE
construction programs.
48 CFR 922.7001 Responsibilities.
(a) General. (1) As collective bargaining arrangements exist
generally throughout the construction industry, the wages, hours and
working conditions followed for construction laborers and mechanics
normally will result from collective bargaining between management and
labor. It is important that practices contributing to harmonious
labor-management relations prevail throughout the DOE program. All
participants in the DOE program, including employees and their unions,
have a special and continuing obligation to do their part in
accomplishing a stable, efficient construction operation under adequate
and reasonable conditions.
(2) In some areas, DOE construction is a minor part of local
construction activity, while in other areas DOE construction may, at
times, overshadow local construction. Normally, there will be a number
of contractors and subcontractors, both cost-type and fixed price,
engaged simultaneously on a single large DOE project. It is important
that adequate coordination exist among all such contractors in order
that similar conditions are provided for all construction employees, in
a given classification, at a particular location.
(3) The problem of establishing appropriate conditions for the large
projects is complicated by the essential requirements that initial
conditions be clearly identified and fixed prior to recruitment of work
force. This factor involves applicability of all pertinent Federal
statutes, including the Davis-Bacon Act and the Labor Management
Relations Act of 1947, as amended (29 U.S.C. 141 et seq.).
(b) Steps preliminary to the staffing of new cost-reimbursement
projects. Preliminary to the actual recruitment of workers, it is
important that sufficient data be accumulated by the field office
concerned to reflect area practices accurately. These data should cover
in detail the pattern of bargaining in the area; the proportion of the
work force employed by employer parties to collective bargaining
agreements in relation to the total construction work force; the terms
of local area agreements; the extent of conformance with such
agreements and any accepted interpretations of them; and a description
of practices which may have developed outside of the local agreements.
These data will furnish the basis for decisions contemplated in (c) and
(d) of this section. Where the data indicate local agreements are
adequate for the contemplated work, there may still be areas that need
to be filled by additional understandings to attain the desired
stability of conditions. The data obtained in the initial survey will
also be used in connection with the original Davis-Bacon
predetermination.
(c) Role of project contractor management in collective bargaining.
The DOE expects contractor management engaged in the negotiation and/or
administration of collective bargaining agreements to assume
responsibility for assuring conditions which are consistent with the
judicious expenditure of public funds, attracting and retaining the
skills needed, and giving due consideration to the community's interests
and established standards. To meet these responsibilities, it is
important that the collective bargaining role to be played by project
contractor management be clearly determined in the light of project
requirements and local conditions.
(1) In an area where DOE construction does not overshadow total local
construction activity, and the majority of construction is performed by
members of local contractor associations, the DOE expects that basic
conditions for labor on its projects will be negotiated between the
local contractor associations and local unions and generally adhered to
on construction work in the area. In such situations, DOE contractors
will provide for clear identification and application of these local
agreements to the DOE work. In such applications, the conditions to be
followed will be those which obtain in actual practice in the area
covered by the agreement and are consistent with applicable laws, rather
than those appearing from a literal interpretation of the language of
the agreement. Conditions not covered by local agreements may be
provided for as necessary to meet project goals.
(2) In some areas, local agreements may be nonexistent, or
inadequate, or the employer parties may not be representative of the
employers of the bulk of the labor force in the area. In such event,
DOE contractors are expected to carry their share of the responsibility
for negotiations and to negotiate directly or in cooperation with others
to establish appropriate conditions.
(3) In an area where DOE construction work is of such magnitude as to
overshadow local construction, it may be desirable for DOE contractors
to negotiate special project conditions (on either a craft or a
multi-craft basis) as the best way to meet their obligations to the DOE.
Such agreements usually involve the establishment of new bargaining
units and are therefore dependent upon the voluntary cooperation of the
building trades unions. Normally both the Building Trades Department
(AFL-CIO) and the Senior Official, Office of Industrial Relations,
should be consulted in respect to any proposed course of action.
(d) Role of DOE in construction labor relations. The DOE's role in
construction labor relations is one of overall cognizance consistent
with DOE's ultimate responsibilities. The scope of the construction
program, the complexity of the problems which may arise, and the need
for coordination among contractors at the same site are factors which
affect the degree of influence exercised by DOE in carrying out the
following responsibilities:
(1) To assure that careful advance survey and analysis is made of
each contract situation and that the role of the contractor management
is in accordance with the considerations in (c) above;
(2) To establish effective machinery for coordination among project
contractor management;
(3) With respect to DOE contracts carried out under area practices,
to assure that conditions proposed are actually prevalent in the area or
have other substantial foundation and that, to the extent consistent
with the terms of fixed-price contracts, practices established by
fixed-price contractors are not of a character that will destabilize
other DOE work;
(4) With respect to DOE contracts carried out under project
agreement, both union and management, to take into account all relevant
factors pertaining to any conditions peculiar to the project, duration
of project, tenure of employment, housing and travel accommodations,
length of regular work week, uniformity of shift, special subsidies,
etc.;
(5) To encourage contractor officials and representatives of
employees to establish similar conditions among all construction
employers for each class or classification of employees at a particular
location;
(6) To encourage contractor officials and representatives of
employees to provide clear identification and application of practices
under local agreements, or to make and maintain project agreements on
DOE construction projects; and
(7) To encourage contractor officials and representatives of
employees to establish reliable working contact between the DOE project
contractors and any unions that are cooperating in staffing the job.
(e) Initial wage rates. The wage rates initially established under
both cost-reimbursement and fixed price contracts will not be less than,
and will normally conform to, those determined by the Secretary of Labor
pursuant to the requirements of the Davis-Bacon Act. On
cost-reimbursement work, the total compensation on the DOE project will
be comparable with the total compensation allowed similar workers in an
appropriate area of comparison. Where the DOE project is applying the
practices under local agreements, the area of comparison normally will
be the geographic area within the jurisdiction of each local union
cooperating in staffing the project. In this situation, the application
of local practices and agreements will usually be carried out on an
item-by-item basis. Where a project agreement has been agreed on as the
foundation for project conditions, the area of comparison for each craft
should be large enough to provide a sound base which will result in
realistic wage rates. In the development of a project agreement, the
Office of Industrial Relations should be consulted.
(f) Adjustments in compensation. Subject to limitations imposed by
applicable labor laws, changes in established wage rates and working
conditions under cost-reimbursement contracts may be effected as
follows:
(1) Adjustments in wage rates and other job conditions established in
project collective bargaining agreements may be effected by the
renegotiation or modification of the agreements at appropriate times and
by the reopening of existing agreements as provided therein. The Office
of Industrial Relations should be consulted as to appropriate criteria
to follow in review of such reopenings.
(2) In situations where DOE contractors working under
cost-reimbursement type contracts apply local established job conditions
included in applicable bargaining agreements, adjustments in wages and
job conditions may coincide with changes within the locality. Wage
rates may be adusted to bring rates into conformity with new rates which
are verified as established in the area at the time of their acceptance
for DOE work.
(g) National Joint Board for the Settlement of Jurisdictional
Disputes in the Building and Construction Industry. Construction
contractors and representatives of employees are encouraged to settle
craft jurisdiction disputes, in accordance with the procedural rules and
regulations of the National Joint Board.
(h) Responsibility of the Office of Industrial Relations. The Office
of Industrial Relations, Headquarters, is responsible for coordinating
all activities arising under this subpart, and for maintaining liaison
with the Department of Labor, the Building Trades Department (AFL-CIO),
and other construction labor and employer organizations.
(49 FR 11998, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 922.7001 PART 923 -- ENVIRONMENT, CONSERVATION, AND OCCUPATIONAL SAFETY
48 CFR 922.7001 Subpart 923.70 -- Environmental, Conservation, and
Occupational Safety Programs
Sec.
923.7001 Nuclear safety.
923.7002 Contract clauses.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
48 CFR 922.7001 Subpart 923.70 -- Environmental, Conservation, and Occupational Safety Programs
48 CFR 923.7001 Nuclear safety.
(a) The DOE regulates the nuclear safety of its major facilities
under its own statutory authority derived from the Atomic Energy Act and
other legislation. The DOE also regulates, under certain specific
conditions, the use by its contractors of radioactive materials and
ionizing radiation producting machines.
(49 FR 12003, Mar. 28, 1984)
48 CFR 923.7002 Contract clauses.
(a) A decision to include or not include environmental, safety and
health clauses in DOE contracts shall be made by the contracting officer
in consultation with appropriate environmental, safety and health
program management personnel.
(b) When work is to be performed at a facility where the DOE will
exercise its statutory authority to enforce occupational safety and
health standards applicable to the working conditions of the contractor
and subcontractor employees at such facility, the clause at 952.223-71
shall be used in such contract or subcontract if conditions (a) (1)
through (3), are satisfied:
(1) DOE work is segregated from the contractor's or subcontractor's
other work;
(2) The operation is of sufficient size to support its own safety and
health services; and
(3) The facility is government-owned, or leased by or for the account
of the government.
(c) In facilities not meeting the requirements of 923.7002(b) above
and which are a production or utilization facility where there is use or
possession of source, special nuclear, or byproduct materials, DOE
policy is not to enforce radiological safety and health standards
pursuant to the contract or subcontract but rather to rely upon Nuclear
Regulatory Commission (NRC) licensing requirements (including agreements
with states under section 274 of the Atomic Energy Act). Pursuant to
this policy, neither the clause found at 952.223-71 nor 952.223-72 is to
be incorporated in the contracts or subcontracts for work at such
facilities. Notwithstanding this general policy with respect to
facilities not meeting the requirements of paragraph (b) above, the
Secretary or his designee may determine in special cases, that DOE needs
to enforce radiological safety and health standards pursuant to the
contract or subcontract (see paragraph (d) below). When such a
determination is made, the clause found at 952.223-72 shall be included
in the contract or subcontract.
(d) In facilities not meeting the requirements of either 923.7002(b)
or 923.7002(c) of this section and where there is a machine capable of
producing ionizing radiation, it is DOE policy not to regulate such
activity where it is adequately regulated by a state or other Federal
agency. In such cases, neither clause 952.223-71 nor 952.223-72 shall
be incorporated in the contract. Where the contracting officer, with
appropriate environmental, safety and health advice determines that no
state or other Federal agency exists to adequately regulate the
operation and/or use of such machines, the clause found at 952.223-72
shall be included in the contract. The Deputy Assistant Secretary for
Environment, Safety and Health shall be consulted to determine if a
non-agreement (NRC) state or a facility located in a non-agreement state
has been reviewed by any other DOE office to establish that the state
agency has the essential authority and resources for enforcing the
radiation protection standards. This is to assure reasonable
consistency in the assessment of radiation protection in non-agreement
states and subsequent use of 952.223-72.
(e) In a situation where the contractor or subcontractor is
performing DOE work at more than one location, inclusion of either, or
both, 952.223-71 and 952.223-72 may be appropriate. In such cases, the
contract or subcontract must include language to specify the extent of
applicability of each clause used. For example, with a parenthetical:
(Applicable only to work performed at a contractor site which has
952.223-71 or 952.223-72 clause in its contract or subcontract).
(49 FR 12003, Mar. 28, 1984)
48 CFR 923.7002 PART 924 -- PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
48 CFR 923.7002 Subpart 924.1 -- Protection of Individual Privacy
Sec.
924.103 Procedures.
48 CFR 923.7002 Subpart 924.2 -- Freedom of Information Act
924.202 Policy.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
48 CFR 923.7002 Subpart 924.1 -- Protection of Individual Privacy
48 CFR 924.103 Procedures.
(b)(2) See 10 CFR Part 1008, Records maintained on Individuals
(Privacy Act), for the DOE regulations relating to the maintenance or
disclosure of information from systems of records on individuals. In
addition, see DOE order 1800.1, Privacy Act, for internal DOE procedures
to be followed in the establishment and maintenance of systems of
records.
(49 FR 12003, Mar. 28, 1984)
48 CFR 924.103 Subpart 924.2 -- Freedom of Information Act
48 CFR 924.202 Policy.
(b) See 10 CFR Part 1004, Freedom of Information, for the DOE
regulations relating to the availability of DOE records to the public.
See 18 CFR Part 388, Public Information and Records, for the regulations
relating to the availability of Federal Energy Regulatory Commission
records.
(50 FR 12185, Mar. 27, 1985)
48 CFR 924.202 PART 925 -- FOREIGN ACQUISITION
48 CFR 924.202 Subpart 925.1 -- Buy American Act -- Supplies
Sec.
925.102 Policy.
925.105 Evaluating offers.
925.108 Excepted articles, materials, and supplies.
48 CFR 924.202 Subpart 925.2 -- Buy American Act -- Construction
Materials
925.202 Policy.
925.204 Violations.
48 CFR 924.202 Subpart 925.5 -- Payment in Local Foreign Currency
925.501 Policy.
48 CFR 924.202 Subpart 925.9 -- Omission of the Examination of Records
Clause
925.903 Conditions for omission.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 12003, Mar. 28, 1984, unless otherwise noted.
48 CFR 924.202 Subpart 925.1 -- Buy American Act -- Supplies
48 CFR 925.102 Policy
(b) Contracting officers may make the determination required by FAR
25.102(a), provided such determination is factually supported in
writing. If the contract is estimated to exceed $1 million, the Head of
the Contracting Activity shall approve the determination.
(49 FR 12003, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 925.105 Evaluating offers.
(c) Proposed awards shall be submitted (in triplicate) through the
Procurement Executive, to the Head of the Agency for decisions required
by FAR 25.105(c).
48 CFR 925.108 Excepted articles, materials, and supplies.
(b) Suggestions for changes and additions to the FAR 25.108(d) list,
with appropriate justifications, shall be submitted to the Procurement
Executive.
48 CFR 925.108 Subpart 925.2 -- Buy American Act -- Construction Materials
48 CFR 925.202 Policy.
(b) Contracting officers may make the determination required by FAR
25.202(a)(3). If the cost of the materials is expected to exceed
$100,000, the Head of the Contracting Activity shall approve the
determination.
48 CFR 925.204 Violations.
(d) Contracting officers shall make a complete written report (in
triplicate) to the Secretary through the Procurement Executive of each
violation of the Buy American Act -- Construction Materials clause at
52.225-5.
48 CFR 925.204 Subpart 925.5 -- Payment in Local Foreign Currency
48 CFR 925.501 Policy.
(b) The contracting officer, prior to award of a contract requiring
payment to be made in a foreign currency, should ensure that sufficient
DOE funds will be available to purchase the foreign currency needed for
making such payments.
(c) The contracting officer, when required by applicable financial
regulations or directives, may obligate funds in excess of the current
contract price, or contract with a financial organization dealing in
foreign exchange for the future delivery of the required foreign
currency. The official contract file should be appropriately documented
to reflect the amount of funds reserved or other actions to be taken in
the event additional U.S. dollars are required to make such payments
because of an increase in the value of the foreign currency.
48 CFR 925.501 Subpart 925.9 -- Omission of the Examination of Records Clause
48 CFR 925.903 Conditions for omission.
Any proposed determinations and any reports mentioned at FAR 25.903
shall be forwarded to the Procurement Review Office, Headquarters.
48 CFR 925.903 SUBCHAPTER E -- GENERAL CONTRACTING REQUIREMENTS
48 CFR 925.903 PART 927 -- PATENTS, DATA, AND COPYRIGHTS
48 CFR 925.903 Subpart 927.3 -- Patent Rights Under Government Contracts
Sec.
927.300 General.
927.370 Waiver of title to certain sensitive inventions.
48 CFR 925.903 Subpart 927.4 -- Technical Data and Copyrights
927.400 Scope of subpart.
927.401 Definitions.
927.402 Acquisition and use of technical data.
927.402-1 General.
927.402-2 Policy.
927.402-3 Procedures (supply, research, development, or demonstration
contracts).
927.403 Negotiations and deviations.
48 CFR 925.903 Subpart 927.70 -- Disclosure of Proposal Information
927.7000 Disclosure outside Government.
927.7001 Proposal information.
927.7002 Treatment of proposal information.
927.7003 Handling notice.
927.7004 Identification of proprietary data in proposals.
927.7004-1 Solicited proposals.
927.7004-2 Solicitations.
927.7004-3 Unsolicited proposals.
927.7005 Required notice of right to request patent waiver.
Authority: Sec. 644 of the Department of Energy Organization Act,
Pub. L. 95-91 (42 U.S.C. 7254); Sec. 148 of the Atomic Energy Act of
1954, as amended (42 U.S.C. 2168); Federal Nonnuclear Energy Research
and Development Act of 1974, Sec. 9, (42 U.S.C. 5908); Atomic Energy
Act of 1954, as amended, Sec. 152, (42 U.S.C. 2182); Department of
Energy National Security and Military Applications of Nuclear Energy
Authorization Act of 1987, as amended, Sec. 3131(a), (42 U.S.C.
7261a.)
Source: 49 FR 12004, Mar. 28, 1984, unless otherwise noted.
48 CFR 925.903 Subpart 927.3 -- Patent Rights Under Government Contracts
48 CFR 927.300 General.
(a) The provisions of 41 CFR 9-9.1 shall continue in effect;
provided, however, that the provisions of 41 CFR 9-9.107-1 through
9-9.107-6 and 9-9.109-6 shall apply only to contracts with other than
small business firms and domestic nonprofit organizations which do not
fall within the provisions of 35 U.S.C. 202(a) (i), (ii), or (iii). The
following sentences shall be substituted for the first sentence of
paragraph (j)(2) of the Patent Rights (Long Form) clause of 41 CFR
9-9.107-5(a) and paragraph (e)(2) of the Patent Rights (Short Form)
clause of 41 CFR 9-9.107-6:
The contractor will include the clause at 952.227-71 ''Patent Rights
-- Small Business Firms or Nonprofit Organizations'' of the Department
of Energy Acquisition Regulation 48 CFR Part 952 suitably modified to
identify the parties, in all subcontracts regardless of tier, for
experimental, developmental, demonstration or research work to be
performed by a small business firm or domestic nonprofit organization.
In all other subcontracts, regardless of tier, for experimental,
developmental, demonstration, or research work, the contractor will
include the Patent Rights clause of 41 CFR 9-9.107-5(a) or 41 9-9.107-6
as appropriate, modified to identify the parties.
(b) The clause at 952.227-71 shall be used in contracts with small
business firms and nonprofit organizations in accordance with OMB
Circular A-124 and Chapter 18 of Title 35 of the United States Code.
48 CFR 927.370 Waiver of title to certain sensitive inventions.
(a) Whenever any contractor makes an invention or discovery to which
the title vests in the Department of Energy pursuant to exercise of
section 202(a) (ii) or (iv) of title 35, United States Code, or pursuant
to section 152 of the Atomic Energy Act of 1954 (42 U.S.C. 2182) or
section 9 of the Federal Nonnuclear Energy Research and Development Act
of 1974 (42 U.S.C. 5908), in the course of or under any Government
contract or subcontract of the Naval Nuclear Propulsion Program or the
nuclear weapons programs or other atomic energy defense activities of
the Department of Energy, and the contractor requests waiver of any or
all of the Government's property rights, the Secretary of Energy may
decide to waive the Government's rights and assign the rights in such
invention or discovery.
(b) In making a decision under this Section, the Secretary or his
designee shall:
(1) Apply the stated general objectives for patent waivers under sec.
92.300(a) of this subpart;
(2) Take into account the specific considerations applicable to
advance waivers and identified invention waivers, respectively, under
sec. 927.300(a) of this subpart;
(3) Consider whether national security will be compromised;
(4) Consider whether sensitive technical information (whether
classified or unclassified) under the Naval Nuclear Propulsion Program
or the nuclear weapons programs or other atomic energy defense
activities of the Department of Energy for which dissemination is
controlled under Federal statutes and regulations will be released to
unauthorized persons;
(5) Consider whether an organizational conflict of interest
contemplated by Federal statutes and regulations will result; and
(6) Consider whether waiving such rights will adversely affect the
operation of the Naval Nuclear Propulsion Program or the nuclear weapons
programs or other atomic energy defense activities of the Department of
Energy.
(c) A decision under this section shall be made within 150 days after
the date on which a complete request for waiver, as described by
paragraph (d) of this section, has been submitted to the Patent Counsel
by the contractor.
(d) In addition to the requirements for content which apply generally
to all waiver requests under sec. 927.300(a) of this subpart, a
requestor must include a full and detailed statement of facts, to the
extent known by or available to the requestor, directed to the
considerations set forth in paragraphs (b)(3) through (6) of this
section, as applicable. To be considered complete, a waiver request
must contain sufficient information, in addition to the content
requirements under sec. 927.300(a) of this subpart, to allow the
Secretary or his designee to make a decision under this section. Such
information shall include, at a minimum, for advance waiver requests:
(1) An identification of all of the petitioner's contractual
arrangements involving the Government (including contracts,
subcontracts, grants, or other arrangements) in which the technology
involved in the contract was developed or used and any other funding of
the technology by the Government, whether direct or indirect, involving
any other party, of which the petitioner is aware;
(2) A description of the petitioner's past, current, and future
private investment in and development of the technology which is the
subject of the contract. This includes expenditures not reimbursed by
the Government on research and development which will directly benefit
the work to be performed under the instant contract, the amount and
percentage of contract costs to be shared by the petitioner, the
out-of-pocket costs of facilities or equipment to be made available by
the petitioner for performance of the contract work which are not
charged directly or indirectly to the Government under contract, and the
contractor's plans and intentions to further develop and commercialize
the technology at private expense;
(3) A description of competitive technologies or other factors which
would ameliorate any anticompetitive effect of granting the waiver.
(4) Identification of whether the contract pertains to work that is
classified, or sensitive, i.e., unclassified but controlled pursuant to
section 148 of the Atomic Energy Action of 1954, as amended (42 U.S.C.
2168) (1982), or subject to export control under Chapter 17 of the
Military Critical Technology List (MCTL) contained in Department of
Defense Directive 5230.25, including identification of all principal
uses of the subject matter of the contract, whether inside or outside
the contractor program, and an indication of whether any such uses
involve classified or sensitive technologies.
(5) Identification of all DOE and DOD programs and projects in the
same general technology as the contract for which the petitioner intends
to be providing program planning advice or has provided program planning
advice within the last three years.
(e) For identified invention requests, such requests shall include at
a minimum:
(1) A brief description of the intentions of the petitioner (or its
present or intended licensee) to commercialize the invention. This
description should include: (i) estimated expenditures, (ii)
anticipated steps, (iii) the associated time periods to bring the
invention to commercialization, and (iv) a statement that petitioner (or
its present or intended licensee) has the capability to carry out its
stated intentions.
(2) A description of any continuing Government funding of the
development of the invention (including investigation of materials or
processes for use therewith), from whatever Government source, whether
direct or indirect, and, to the extent known by the petitioner, any
anticipated future Government funding to further develop the invention.
(3) A description of competitive technologies or other factors which
would ameliorate any anticompetitive effects of granting the waiver.
(4) A statement that petitioner will reimburse the Department of
Energy for any and all costs and fees incurred by the Department in the
preparation and prosecution of the patent applications covering the
invention that is the subject of the waiver petition.
(5) Where applicable, a statement of reasons why the petition was not
timely filed in accordance with the applicable patent rights clause of
the contract, or why a request for an extension of time to file the
petition was not filed in a timely manner.
(6) Identification of whether the invention pertains to work that is
classified, or sensitive, i.e., unclassified but controlled pursuant to
section 148 of the Atomic Energy Action of 1954, as amended, (42 U.S.C.
2168) (1982), or subject to export control under Chapter 17 of the
Military Critical Technology List (MCTL) contained in Department of
Defense Directive 5230.25, including identification of all principal
uses of the invention inside or outside the contractor program, and an
indication of whether any such uses involve classified or sensitive
technologies.
(7) Identification of all DOE and DOD programs and projects in the
same general technology as the invention for which the petitioner
intends to be providing program planning advice or has provided program
planning advice within the last three years.
(8) A statement of whether a classification review of the invention
disclosure, any resulting patent application(s), and/or any reports and
other documents disclosing a substantial portion of the invention has
been made, together with any determinations on the existence of
classified or sensitive information in either the invention disclosure,
the patent application(s), or reports or other documents disclosing a
substantial portion of the invention; and
(9) Identification of any and all proposals, work for others
activities, or other arrangements submitted by the petitioner, DOE, or a
third party, of which petitioner is aware, which may involve further
funding of the work on the invention at either the contractor facility
where the invention arose or another facility owned by the Government.
(f) Patent Counsel will notify the petitioner promptly if the waiver
request is found not to be a complete request and, in that event, will
provide the petitioner with a reasonable period, not to exceed 60 days,
to correct any such incompleteness. If petitioner does not respond
within the allotted time period, the waiver request will be considered
to be withdrawn. If petitioner responds within the allotted time
period, but the submittal is still deemed incomplete or insufficient,
the waiver request may be denied.
(g) For waiver requests as described in this section, waiver
decisions shall be made within 150 days after the date on which a
complete request for waiver of such rights, as specified herein, has
been submitted by the petitioner to the DOE Patent Counsel. If the
original waiver request does not result in a communication from DOE
Patent Counsel indicating that the request is incomplete, the 150-day
period for decision commences on the date of receipt of the waiver
petition. If the original waiver request results in a communication
from DOE Patent Counsel indicating that the request is incomplete, the
150-day period for decision commences on the date on which supplementary
information is received by Patent Counsel sufficient to make the waiver
request complete. For advance waiver requests, if petitioner is not
notified that the request is incomplete, the 150-day period for decision
commences on the date of receipt of the petition, or on the date on
which negotiation of contract terms is completed, whichever is later.
(h) Failure of DOE to make a patent waiver decision within the
prescribed 150-day period shall in no way be construed as a grant of the
waiver.
(53 FR 51278, Dec. 21, 1988)
48 CFR 927.370 Subpart 927.4 -- Technical Data and Copyrights
48 CFR 927.400 Scope of subpart.
This subpart sets forth DOE's policy, procedures, and instructions
for contract clauses with respect to the acquisition and use of
technical data and copyrights in contracts or subcontracts entered into,
with or for the benefit of the Government.
48 CFR 927.401 Definitions.
Technical data means for the purpose of this subpart, recorded
information, regardless of form or characteristic, of a scientific or
technical nature. It may, for example, document research, experimental,
developmental, demonstration, or engineering work or be usable or used
to define a design or process or to procure, produce, support, maintain,
or operate material. The data may be graphic or pictorial delineations
in media such as drawings or photographs, text in specifications or
related performance or design type documents, or computer software
(including computer programs, computer software data bases, and computer
software documentation). Examples of technical data include research
and engineering data, engineering drawings and associated lists,
specifications, standards, process sheets, manuals, technical reports,
catalog item identification, and related information. Technical data,
as used in this subpart, do not include financial reports, cost
analyses, and other information incidental to contract administration.
Proprietary data means for the purpose of this subpart, technical
data which embody trade secrets developed at private expense, such as
design procedures or techniques, chemical composition of materials, or
manufacturing methods, processes, or treatments, including minor
modifications thereof, provided that such data:
(1) Are not generally known or available from other sources without
obligation concerning their confidentiality;
(2) Have not been made available by the owner to others without
obligation concerning their confidentiality; and
(3) Are not already available to the Government without obligation
concerning their confidentiality.
Contract data means for the purpose of this subpart, technical data
first produced in the performance of the contract, technical data which
are specified to be delivered under the contract, technical data that
may be called for under the Additional Technical Data Requirements
clause of the contract, if any, or technical data actually delivered in
connection with the contract.
Unlimited rights means for the purpose of this subpart, rights to
use, duplicate or disclose technical data, in whole or in part, in any
manner and for any purpose whatsoever, and to permit others to do so.
927.402 Acquisition and use of technical data.
48 CFR 927.402-1 General.
(a) The provisions herein pertain to research, development,
demonstration and supply contracts. Special considerations for
contracts for the operation, design, or construction of Government-owned
facilities are covered by Subpart 970.27. Under DOE's broad charter to
perform research, development, and demonstration work, in both nuclear
and nonnuclear fields, and to meet the objectives stated in 927.402-2,
DOE has extensive needs for technical data. The satisfaction of these
needs and the achievement of DOE's objectives through a sound data
policy are found in the balancing of the needs and equities of the
Government, its contractors, and the general public.
(b) It is important to keep a clear distinction between contract
requirements for the delivery of technical data on the one hand, and
rights in technical data on the other. The legal rights which the
Government acquires in technical data in DOE contracts (other than
''facilities'' contracts) are set forth in the Rights in Technical Data
(long form) clause of 952.227-75. However, this clause does not obtain
for the Government the delivery of any data whatsoever. Rather, known
requirements for the technical data to be delivered by the contractor
shall be set forth as part of the contract (e.g. in the statement of
work). The Additional Technical Data Requirements clause at 952.227-73
may be used along with the clause at 952.227-75 to enable the
contracting officer to require the contractor to furnish additional
technical data, the requirement for which was not known at the time of
contracting. There is, however, a built-in limitation on the kind of
technical data which a contractor may be required to deliver under
either the contract statement of work or the Additional Technical Data
Requirements clause. This limitation is found in the withholding
provision of paragraph (e) of the Rights in Technical Data (long form)
clause of 952.227-75 which provides that the contractor need not furnish
''proprietary data.'' It is specifically intended that the contractor
may withhold ''proprietary data'' even though a requirement for
technical data specified in the statement of work or called for pursuant
to the Additional Technical Data Requirements clause would seemingly
require the furnishing of proprietary data. This withholding of
proprietary data is the primary means by which the contractor may
protect its proprietary position.
(c) There are, however, two situations where the Government, or its
representative, may need to have limited access to a contractor's
proprietary data.
(1) First, paragraph (f) of the Rights in Technical Data (long form)
clause gives the contracting officer's representatives the limited right
to inspect at the contractor's facility the contractor's proprietary
data which were withheld from delivery under paragraph (e) of the clause
for the purpose of verifying that such data were properly withheld or to
evaluate work performance. In carrying out the inspection, normally the
contracting officer's representative is a DOE employee although he may
be an employee of a DOE contractor acting under an agreement to treat in
confidence the proprietary data to be inspected. However, where the
contractor whose data are to be inspected demonstrates that there would
be a possible conflict of interest if the inspection were made by such a
contractor employee, the contracting officer's representative may be
limited to a DOE employee. Paragraph (f) has a built-in exclusion from
these inspection rights for ''specific items of proprietary data'' when
they are so specified in the contract schedule. Such exclusions limit
even DOE's minimum rights of evaluating contract work performance and
verifying that technical data withheld by the contractor is proprietary
in fact. Such exclusions should be sparingly used, and only in
situations where program personnel stipulate to the fact that DOE has no
need for access to the specified items to be excluded from paragraph
(f), i.e., that the nondisclosure and nonaccessibility will not
adversely affect the DOE program involved. It should also be noted that
paragraph (f) permits exclusion of ''specific items'' of proprietary
data and, accordingly, should not be used to exclude classes of
technical data or all technical data pertaining to specific items or
processes or classes of items or processes.
(2) The second situation, where the Government may have limited
access to a contractor's proprietary data, is provided in optional
paragraph (g) of the Rights in Technical Data (long form) clause at
952.227-75 Alternate I. When used, optional paragraph (g) provides the
Government the right to require the contractor to furnish with limited
rights the proprietary data previously withheld under paragraph (e). In
this situation, the limited rights in proprietary data and the
Government's obligation for limited use and disclosure of such data as
set forth in the Rights in Technical Data (long form) clause provides
the means by which the contractor protects its proprietary position.
Paragraph (g) will be used only where it is determined by DOE that for
programmatic reasons there is a need for the delivery of proprietary
data to the Government. Where proprietary data is to be delivered under
paragraph (g) and subparagraph (a) or (b) of the limited rights legend
is to be applied to the data, the contractor may, if he can show the
possibility of a conflict of interest regarding disclosure of such data
to other contractors, limit or modify subparagraph (a) or (b) as set
forth in 927.402-3(e)(2), to exclude or include certain contractors.
(d) The contractor licensing provisions of optional paragraph (h) at
952.227-75 Alternate II of the Rights in Technical Data (long form)
clause enable DOE to require limited licenses in proprietary contract
data to be granted to the Government and responsible parties in certain
circumstances. Such a license may parallel or supplement the license
obtained in background patents under the provisions of paragraph (k) of
the Patent Rights clause of 41 CFR 9-9.107-5(a). Paragraph (h) is
normally to be included in contracts for research, development or
demonstration where it is deemed by DOE that the limited license
afforded therein is necessary to ensure widespread commercial use or
practical utilization of a subject of the contract. As explained in
927.402-3(e)(3), paragraph (h) provides that upon request by DOE, the
contractor will grant to the Government and responsible third parties a
license in proprietary data only where such data in the form of results
obtained by its use, i.e., essential equipment, articles, products, and
the like which were the subject of the contract, are not otherwise
available, or cannot be made available in a reasonable time as set forth
in paragraph (h).
(e)(1) It is the responsibility of prime contractors and higher tier
subcontractors, in meeting their obligations with respect to contract
data, to obtain from their subcontractors the rights in, access to, and
delivery of such data on behalf of the Government. Accordingly, subject
to the policy set forth in these regulations, and subject to the
approval of the contracting officer where required, selection of
appropriate technical data provisions for subcontracts is the
responsibility of the prime contractor or higher-tier subcontractor. In
many but not all instances, inclusion in a subcontract of the Rights in
Technical Data (long form) clause of 952.227-75 will suffice to obtain
for the benefit of the Government the rights in and, if appropriate,
access to technical data. Access by DOE to technical data, i.e., the
inspection rights afforded in paragraph (f) of the Rights in Technical
Data (long form) clause at 952.227-75 normally should be obtained only
in first-tier subcontracts having as a purpose the conduct of research,
development, or demonstration work or the furnishing of supplies for
which there are substantial technical data requirements as reflected in
the prime contract. If a subcontractor refuses to accept technical data
provisions affording rights in and access to technical data on behalf of
the Government, the contractor shall so inform the Contracting Officer
in writing and not proceed with the subcontract without written
authorization of the Contracting Officer. In prime contracts (or
higher-tier subcontracts) which contain the Additional Technical Data
Requirements clause, it is the further responsibility of the contractor
(or higher-tier subcontractor) to determine whether inclusion of such
clause in a subcontract is required to satisfy technical data
requirements of the prime contract (or higher-tier subcontract).
(2) As is the case for DOE in its determination of technical data
requirements, the Additional Technical Data at 952.227-73 Requirements
clause should not be used at any subcontracting tier where the technical
data requirements are fully known, and normally the clause will be used
only in subcontracts having as a purpose the conduct of research,
development, or demonstration. Prime contractors and higher-tier
subcontractors shall not use their power to award subcontracts as
economic leverage to inequitably acquire rights in the subcontractor's
proprietary data for their private use, and they shall not acquire
rights on behalf of the Government to proprietary data for standard
commercial items unless required by the prime contract.
(f) Related to the acquisition and use of technical data are the
contractor's rights in contract data as well as technical data furnished
to the contractor by DOE or its contractors. These rights are set forth
in paragraph (b)(2) of each Rights in Technical Data clause and provide
that the contractor may, subject to patent, security and other
provisions of the contract, use for its private purposes contract data
it first produces in the performance of the contract, provided that the
contractor has met its data requirements (e.g., delivery of data in form
of progress or status reports specified to be delivered) as of the date
of the private use of such data. It is not necessary that a final
report be submitted in order to privately use data if all required
progress and interim reports and other technical data then due have been
delivered. Paragraph (b)(2) further provides that technical or other
data received by the contractor in the performance of the contract must
be held in confidence by the contractor in accordance with restrictions
accompanying the data.
(g) An additional clause described further at 927.402-3(f), the text
of which is found at 952.227-76 entitled Rights in Data -- Special
Works, is to be used in place of or in addition to the Rights in
Technical Data (long form) clause in contracts where a purpose of the
contract is the production of copyrightable material, a substantial
portion of which is to be first produced in the performance of the
contract, such as motion pictures, television recordings, books,
histories, etc. Where, during contract negotiations, it may be
determined to purchase, i.e., ''specifically acquire,'' unlimited rights
in technical data, or to lease or obtain a license therein, or to obtain
rights in existing data, an appropriate clause therefor should be
obtained from patent counsel. In situations where technical data
including computer software are to be leased or licensed, the terms of
any agreement restricting the Government's rights will be included in
the contract as either a special clause or an agreement annexed thereto.
Another clause, the Rights in Technical Data (short form) clause
further described at 927.402-3(g), the text of which is found at
952.227-77, is provided for use in research contracts with educational
institutions and consultants. Such contracts may, for example, include
those for conducting symposia, training, or education, or other
contracts not involving possible use of proprietary data.
(h) In contracts involving access to certain categories of DOE-owned
restricted data, as set forth in 10 CFR Part 725, DOE has reserved the
right to receive reasonable compensation for the use of its inventions
and discoveries, including its related data and technology.
Accordingly, in contracts where access to such restricted data is to be
provided to contractors, the following parenthetical phrase shall be
inserted after ''contract data'' in paragraph (b)(2)(ii) of the clause
at 952.227-75, after ''technical data'' in paragraph (b)(2) of the
clause at 952.227-77, or after ''technical data'' in paragraph
(b)(2)(ii) of the clause at 952.227-78 as appropriate: ''(except
Restricted Data in category C-24, 10 CFR Part 725, in which DOE has
reserved the right to receive reasonable compensation for the use of its
inventions and discoveries, including related data and technology).'' In
addition, there are other types of contract situations (e.g., no cost
contracts for studies or evaluation) wherein the contractor is given
access to restricted data. In such contract situations, limitations on
the use of such data may be appropriate.
48 CFR 927.402-2 Policy.
The technical data policy is directed toward achieving the following
objectives:
(a) Making the benefits of the energy research, development and
demonstration programs of DOE widely available to the public in the
shortest practicable time;
(b) Promoting the commercial utilization of the technology developed
under DOE programs;
(c) Encouraging participation by private persons in DOE energy
research, development, and demonstration programs; and
(d) Fostering competition and preventing undue market concentration
or the creation or maintenance of other situations inconsistent with the
antitrust laws.
48 CFR 927.402-3 Procedures (supply, research, development, or
demonstration contracts).
(a) Known requirements for technical data. Technical data
requirements are determined in relation to the intended use of the data
which in turn depends upon the intended use of the contract end item.
In many contracts for research, the end item may often be a technical
report or series of such reports, while in contracts beyond research,
the subject of the contract may be a feasibility model, an engineering
or advance development model, or a prototype. The extent to which
required technical data may be needed often depends on the level of
maturity of design and perfection of the end item, and for a
demonstration plant or prototype, may include data pertaining to
performance, operational and environmental testing, repair, maintenance,
operation, quality assurance, detailed design, logistics, training, etc.
Known technical data requirements shall be programmatically ascertained
prior to contracting and shall be included in requests for proposals or
disclosed during contract negotiations for incorporation as data
requirements in the contract statement of work.
(b) Additional requirements for technical data. In contracts for
research, development, or demonstration, it is not normally possible or
appropriate for the Government to ascertain all actual needs for
technical data in advance of contracting. Accordingly, the Additional
Technical Data Requirements clause at 952.227-73, shall normally be used
in such contracts (and, if appropriate, in subcontracts) to enable the
ordering of technical data as the actual need and requirement therefor
becomes known during the course of the contract. If all technical data
requirements are known in advance of contracting and are set forth in
the contract statement of work, this clause need not be used. The
Additional Technical Data Requirements clause should not normally be
used in supply contracts because the required technical data therefor
are ordinarily known in advance and thus are specified in the contract
statement of work or specification. When the Additional Technical Data
Requirements clause is used, the Rights in Technical Data-Long Form
clause at 952.227-75 shall also be used.
(c) Clause text. The text of the Additional Technical Data
Requirements clause is found at 952.227-73.
(d) Proposals. (1) The policy and procedures for treatment of
proposal information are set forth in FAR 15.413 for solicited
proposals, in FAR 15.509 for unsolicited proposals, and 927.70.
(2) Solicited proposals are to be handled in accordance with the
procedures of FAR 15.413-2. Evaluation of such proposals outside the
Government is authorized in accordance with the procedures of FAR
15.413-2(f) and paragraph (d)(4) below. In order to assure that
solicited proposals are properly handled, the handling notice of FAR
15.413-2(e) shall be affixed to a cover sheet attached to each proposal
upon receipt by DOE. Use of the notice neither alters any obligation of
the Government, nor diminishes any rights in the Government to use or
disclose the information.
(3) Unsolicited proposals are to be handled in accordance with FAR
15.509. Outside evaluations of such proposals are authorized in
accordance with the procedures of 927.7000.
(4) It is DOE policy to have proposals evaluated by the most
competent persons available in Government. In addition, DOE may meet
its evaluation needs by having proposals reviewed by evaluators and
contractor organizations operating or managing government-owned
facilities. Where it is determined to evaluate a proposal outside the
Government, such as by consultants, grantees and contractors including
those who operate or manage Government-owned facilities, the agreement
of 927.7000 or an equivalent arrangement for the treatment of the
proposal shall be obtained from the outside evaluator before DOE
furnishes a copy of the proposal to such person. In addition, care
should be taken that the required handling notice is affixed to a cover
sheet attached to the proposal before it is disclosed to the evaluator.
(5) Should a contract be awarded based on a proposal, it is DOE
policy, in consideration of the award, to obtain unlimited rights for
the Government in the technical data contained in the proposal unless
the prospective contractor marks those portions of the technical
information which it asserts as ''proprietary data'', or specifies those
portions of such technical data which are not directly related to or
will not be utilized in the work to be funded under the contract.
''Proprietary data'' is defined in 927.401(b). A proposer who receives a
contract award shall mark the data identified as proprietary by
specifying the appropriate page numbers to be inserted in the Rights to
Proposal Data clause of 952.227-82, which clause shall be inserted in
the contract. Subject to the concurrence of the contracting officer,
information unrelated to the contract may be deleted from the proposal
by the contractor. The responsibility, however, of identifying
technical data as proprietary or deleting it as unrelated, rests with
the prospective contractor.
(e) Rights in technical data. (1) The Rights in Technical Data (long
form) clause set forth at 952.227-75 shall be used in all contracts
having as a purpose the conduct of research, development, or
demonstration, or in contracts for supplies, or in any other contract
where technical data are expected to be first produced under the
contract, where technical data are specified to be delivered in the
contract, or where the contract contains the Additional Technical Data
Requirements clause. Accordingly, all such contracts shall contain the
Rights in Technical Data (long form) clause at 927.227-75, except as
noted in 970.2702 and 927.402-3 (f) and (g) and except contracts for
standard commercial off-the-shelf supplies where technical data such as
operating or repair manuals are routinely furnished with the supplies.
(2) Optional paragraph-Limited Rights in Proprietary Data. In
research, development, or demonstration contracts, and supply contracts
where it is determined that delivery of proprietary data is necessary
with limited rights in the Government, the Rights in Technical Data
(long form) clause at 952.227-75 shall be supplemented by the additional
paragraph (g) set forth at Alternate I to the clause. It should be
noted that this paragraph does not entitle the contractor to place a
limited rights legend on any technical data furnished to the Government
under paragraph (g) unless the contracting officer requests in writing
delivery of identified technical data previously withheld under
paragraph (e) of the Rights in Technical Data clause. Paragraph (g)
provides that proprietary data may be specified in the contract as being
excluded from the delivery requirements of paragraph (e).
Alternatively, the limited rights legend specified in Alternate I may be
made applicable to only those classes of proprietary data determined as
being necessary for delivery with limited rights. In addition, when
furnishing proprietary data with the limited rights legend,
subparagraphs (a), (b) and (c) thereunder may be modified as follows.
When proprietary data is to be furnished only for evaluation,
subparagraph (a) of the limited rights legend shall be used, and
subparagraphs (b) and (c), if otherwise inapplicable, may be deleted.
When there is a programmatic requirements that proprietary data be
disclosed to other DOE contractors only for information or use in
connection with work performed under their contracts, subparagraph (b)
of the limited rights legend shall be used, and subparagraphs (a) and
(c) may be deleted if otherwise inapplicable. In either of the
foregoing examples, the contractor may, if it can show the possibility
of a conflict of interest because of disclosure of such data to certain
contractors or evaluators, exclude such contractors or evaluators from
subparagraphs (a) or (b). If the data is required solely for emergency
repair or overhaul, subparagraph (c) of the limited rights legend shall
be retained, and subparagraphs (a) and (b) may be deleted, unless
otherwise applicable. In the event it is determined that all of the
subparagraphs (a), (b) and (c) of the limited rights legend are to be
deleted, the word ''none'' shall be inserted in the legend after the
colon(:).
(3) Optional paragraph-Contractor Licensing. In many contracting
situations the achievement of DOE's objectives would be frustrated if
the Government, at the time of contracting, did not obtain on behalf of
responsible third parties and itself limited license rights in and to
proprietary contract data. Where, for example, the contractor is
required to license background patents, consideration should be given to
securing co-extensive license rights to the Government and responsible
third parties at reasonable royalties, and under appropriate
restrictions, for contract data which are proprietary data in order to
practice the technology which is a subject of the contract. When such a
license right is deemed necessary, the Rights in Technical Data (long
form) clause at 952.227-75 should be supplemented by the addition of
paragraph (h) at 952.227-75 Alternate II. Paragraph (h) will normally
be sufficient to cover proprietary contract data for items and processes
that were used in the contract and are necessary in order to insure
widespread commercial use of a subject of the contract. The expression
''subject of the contract'' is intended to limit the licensing required
in paragraph (h) below to the fields of technology specifically
contemplated in the contract effort and may be replaced by a more
specific statement of the fields of technology intended to be covered in
the manner described in 41 CFR 9-9.107-5(b)(9) pertaining to
''Background Patents.'' Where, however, proprietary contract data cover
the main purpose or basic technology of the research, development, or
demonstration effort of the contract, rather than subcomponents,
products or processes which are ancillary to the contract effort, the
limitations set forth in subparagraphs (h) (1) through (4) should be
modified or deleted. Paragraph (h) further provides that technical data
may be specified in the contract as being excluded from or not subject
to the licensing requirements thereof. This exclusion can be
implemented by limiting the applicability of the provisions of paragraph
(h) to only those classes or categories of proprietary data determined
as being essential for licensing. Although contractor licensing may be
required under paragraph (h), the final resolution of questions
regarding the scope of such licenses, the terms thereof, including
provions for confidentiality and reasonable royalties, is then left to
the negotiation of the parties with resolution of the issues being made,
if necessary, by a court of competent jurisdiction.
(f) Rights in Data -- Special Works. (1) The clause set forth in
952.227-76 shall be used in all contracts where the principal purpose or
a task of the contract is the production of copyrightable works, even
through such works may incorporate uncopyrighted material or material
previously copyrighted by the contractor or others. Such contracts
include those:
(i) Primarily for production of motion picture or television
recordings or scripts, musical compositions or arrangements, sound
tracks or recordings, translations, adaptations, and the like;
(ii) For books, compilations, surveys, histories, or technology
information pamphlets;
(iii) For works pertaining to management studies, support services,
training, career guidance, or similar functions of DOE; and
(iv) For works pertaining to guidance or instruction of DOE officials
or employees in the discharge of official duties.
(2) The Rights in Data -- Special Works clause at 952.227-76 should
be modified with the assistance of Patent Counsel where the contract
calls for the editing, translation, addition, or other modification of
the subject matter of an existing work.
(g) Rights in Technical Data (short form). The clause set forth in
952.227-77 may be used in contracts for basic research including grants,
special research contracts with educational institutions, contracts with
consultants, contracts for symposia, or for the conduct of training and
educational programs, and in other contracts of a similar nature. This
clause shall not be used in any contract where proprietary information
of the contractor may be utilized in the performance of work under the
contract; in such instances the Additional Technical Date Requirements
clause of 952.227-73 and the Rights in Technical Data (long form) clause
of 952.227-75 shall be used. The short form clause of this section
shall not be used in situations involving long-term consultancy
arrangements for work in DOE programs providing opportunities for
specialized work experience at DOE-owned facilities for scientific,
engineering, and other employees of private firms and institutions
engaged in civilian applications of atomic energy.
(49 FR 12004, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 927.403 Negotiations and deviations.
Contracting officers shall contact the Patent Counsel assisting their
contracting activity, or the Assistant General Counsel for Patents, for
assistance to the contracting officer in selecting, negotiating, or
approving appropriate data and copyright clauses in accordance with the
procedures as set forth in 927.402 and 970.27. In particular, advice of
Patent Counsel should be obtained regarding the appropriateness or
modification of optional paragraphs (g) and (h) of the Rights in
Technical Data (long form) clause, the exclusion of specific items of
proprietary data from paragraph (f) in said clause, and the exclusion of
the Additional Technical Data Requirements clause of 952.227-73.
48 CFR 927.403 Subpart 927.70 -- Disclosure of Proposal Information
48 CFR 927.7000 Disclosure outside Government.
(a) It is DOE policy to have proposals evaluated by the most
competent persons available in the Goverment. In addition, DOE may meet
its evaluation needs by having proposals reviewed by evaluators and
contractor organizations operating or managing government-owned
facilities. Outside evaluations may be made provided the requirements
in (b) and (c) below are met. A decision to employ outside evaluators
shall take into consideration requirements for avoidance of
organizational conflicts of interest set forth in 909.5 and the
competitive relationship, if any, between the proposer and the outside
evaluator.
(b) Decisions to evaluate proposals outside the government shall be
made only by the Source Selection Official with the concurrence of the
Procurement Executive, Headquarters, for all source evaluation board
acquisitions, or by the Senior Program Offical or designee with the
concurrence of the HCA or his designee for other acquisitions. If the
proposal under consideration expressly indicates that only Government
evaluation is authorized and evaluation outside the Government is
neverthless desired, the proposer shall be advised that DOE may be
unable to give full consideration to the proposal unless the proposer
consents in writing to having the proposal evaluated outside the
Government.
(c) Where it is determined to evaluate a proposal outside the
Government, such as by consultants, grantees or contractors including
those who grant or manage Government-owned facilities the following
agreement or an equivalent arrangement for the treatment of the proposal
shall be obtained from the outside evaluator before DOE furnishes a copy
of the proposal to such person. In addition, care should be taken that
the handling notice required by 927.7003 is affixed to a cover sheet
attached to the proposal before it is disclosed to the evaluator.
Whenever DOE furnishes a proposal for evaluation, I the recipient
agree to use the information contained in the proposal only for DOE
evaluation purposes and to treat the information obtained in confidence.
This requirement does not apply to information obtained from any
source, including the proposer, without restriction. Any notice or
restriction placed on the proposal by either DOE or the originator of
the proposal shall be conspicuously affixed to any reproduction or
abstract thereof and its provisions strictly complied with. Upon
completion of the evaluation, it is agreed all copies of the proposal
and abstracts, if any, shall be returned to the DOE office which
initially furnished the proposal for evaluation. Unless authorized by
the conracting officer, it is agreed the recipient shall not contact the
originator of the proposal concerning any aspect of its contents.
Recipient:
Date:
48 CFR 927.7001 Proposal information.
Information contained in proposals will be used only for evaluation
purposes except to the extent such information is generally available to
the public, is already the property of the Government, or the Government
already has unrestricted use rights, or is or has been made available to
the Government from any source, including the proposer or offeror,
without restriction. The term ''proposal,'' as used in this section,
includes responses to program opportunity notices (PONs), program
research and development announcements (PRDAs) and solicitations of a
similar nature, in addition to requests for proposals (RFPs) and
unsolicited proposals. As a practical matter, DOE cannot assume any
responsibility for disclosure or use of any such information unless it
is identified by the proposer or offeror in accordance with this
section. Unless a solicitation specifies otherwise, DOE will not refuse
to consider a solicited proposal or an unsolicited proposal merely
because the proposal is restrictively marked.
48 CFR 927.7002 Treatment of proposal information.
(a) A proposal may include technical data and other data, including
trade secrets and/or privileged or confidential commercial or financial
information which the offeror does not want disclosed to the public or
used by the Government for any purpose other than proposal evaluation.
To protect such data the offeror should specifically identify each page
including each line or paragraph thereof containing the data to be
protected and mark the cover sheet of the proposal with the notice set
forth at FAR 52.215-12, as prescribed at FAR 15.407(c)(8) for solicited
proposals or FAR 15.509 for unsolicited proposals. Solicitation
documents shall include instructions to proposers to mark their
proposals in the prescribed manner.
(b) A reference to that notice on a proposal cover sheet shall be
placed on each page to which the notice applies. Data, or abstracts of
data, marked with that notice will be retained in confidence and used by
the DOE or its designated representative(s) including Government
contractors and consultants, as set forth in paragraph (c) of this
section solely for the purpose of evaluating the proposal. The data so
marked will not otherwise be disclosed or used without the proposer's
prior written permission except to the extent provided in any resulting
contract, or to the extent required by law. Offerors should be made
aware of the provisions of paragraph (c) of this section if they desire
to modify the notice at FAR 52.215-12 or otherwise seek to limit the
evaluation to the Government only. The restriction contained in the
notice does not limit the Government's right to use or disclose any data
contained in the proposal if it is obtainable from any source, including
the offeror, without restriction. Although it is the policy of the DOE
to treat all proposals as confidential, the Government assumes no
liability for disclosure or use of unmarked data and may use or disclose
such data for any purpose. See FAR 15.1001(b) regarding disclosure to
other offerors.
(c) Should a contract be awarded based on a proposal, it is DOE
policy, in consideration of the award, to obtain unlimited rights for
the Government in the technical data contained in the proposal unless
the prospective contractor marks those portions of the technical
information which he asserts ''proprietary data,'' or specifies those
portions of such technical data which are not directly related to or
will not be utilized in the work to be funded under the contract.
''Proprietary data'' is defined in 927.401. An offeror who receives a
contract award shall mark the data identified as proprietary by
specifying the appropriate page numbers to be inserted in the Rights to
Proposal Data clause of 952.227-82, which clause shall be inserted in
the contract. Subject to the concurrence of the contracting officer,
information unrelated to the contract may be deleted from the proposal
by the contractor. The responsibility, however, of identifying
technical data as proprietary or deleting it as unrelated, rests with
the prospective contractor.
(d) The clause at 952.227-82 shall be included in any contract which
resulted from a proposal that was the basis of negotiation and award of
the contract. This clause is intended to apply only to technical data
and not to other data such as privileged or confidential commercial or
financial information.
48 CFR 927.7003 Handling notice.
In order that proposals may be handled in confidence consistent with
the policies set forth in this section and pursuant to 927.402-3(d)(2),
the notice at FAR 15.413-2(e) for solicited proposals and FAR 15.509(d)
for unsolicited proposals shall be affixed to a cover sheet attached to
each proposal upon receipt by DOE. Use of the notice neither alters any
obligation of the Government, nor diminishes any rights in the
Government to use or disclose data or information.
48 CFR 927.7004 Identification of proprietary data in proposals.
48 CFR 927.7004-1 Solicited proposals.
Even though the statement of work contained in a solicitation sets
forth the known requirements for technical data, i.e., technical data
which will be specified to be delivered, there is no assurance that the
contractor will deliver all of this data because paragraph (e) of the
Rights in Technical Data (long form) clause at 952.227-75 permits the
contractor to withhold proprietary data from delivery. In order to
ascertain the technical data the proposer intends to withhold as
proprietary data, and as an aid in determining whether to include the
provision for limited rights in proprietary data set forth in optional
paragraph (g) of the Rights in Technical Data (long form) clause, the
provision set forth in 952.227-83 shall be included in the solicitation.
This provision explains that solicitations will include DOE's known
requirements for technical data, and that the proposer must submit a
list identifying to the best of its knowledge which of this data will be
withheld as proprietary data, or state that no technical data will be
withheld. The submission of such a list does not constitute a
stipulation or determination by the Government that the data identified
therein are in fact proprietary. In addition, the provision to be
included in the solicitation refers to the Additional Technical Data
Requirements clause at 952.227-73, as being included in the proposed
contract where, due to programmatic considerations, it is contemplated
that all of the requirements for technical data will not be known at the
time of contracting. When a proposer specifically identifies the
proprietary data to be withheld, the contracting officer shall determine
as advised by the appropriate program manager, whether:
(a) the Government needs limited rights in the proprietary data, in
which case the optional paragraph (g) will be included in the Rights in
Technical Data (long form) clause;
(b) the Government needs to require the contractor to license
proprietary data to the Government and responsible third parties, in
which case optional paragraph (h) will be included in the Rights in
Technical Data (long form) clause; and
(c) the Government needs unlimited rights in the proprietary data, in
which case negotiations may be held to purchase or obtain a suitable
license to the proprietary data.
48 CFR 927.7004-2 Solicitations.
The provision at 952.227-83 shall normally be included in
solicitations which may result in contracts calling for research,
development, or demonstration work or solicitations for supplies in
which delivery of required technical data is contemplated.
48 CFR 927.7004-3 Unsolicited proposals.
The contracting officer, during contract negotiations, shall identify
technical data which will be required to be furnished under the
contract. The proposer shall be required to submit a list identifying,
to the best of his knowledge, which of this data will be withheld as
proprietary under paragraph (e) of the Rights in Technical Data (long
form) clause, or to state that no technical data will be withheld. The
contracting officer shall then make the determinations, in the same
manner as set forth in 927.7004-1 for solicited proposals, pertaining to
the proprietary data identified to be withheld.
48 CFR 927.7005 Required notice of right to request patent waiver.
Offerors are to be provided with notice of the right to request, in
advance of or within 30 days after the effective date of contracting, a
waiver of all or any part of the rights of the United States with
respect to subject inventions. In no event will the fact that an
offeror has requested such a waiver be a consideration in the evaluation
of his offer or the determination of his acceptability. Accordingly,
the notice at 952.227-84 shall be given to all prospective contractors
and shall be inserted in all solicitations which may result in contracts
calling for research, development, or demonstration work.
48 CFR 927.7005 PART 928 -- BONDS AND INSURANCE
48 CFR 927.7005 Subpart 928.1 -- Bonds
Sec.
928.101-1 Policy on use.
928.101-70 Review of bid bonds for construction.
928.102-70 Review of performance and payment bonds for construction.
928.103-2 Performance bonds.
928.103-3 Payment bonds.
928.103-70 Review of performance and payment bonds for other than
construction.
928.170 Fidelity bonds.
48 CFR 927.7005 Subpart 928.2 -- Sureties
928.202-1 Corporate sureties.
928.202-70 Partnerships as sureties.
928.202-71 Substitution or replacement of a surety.
48 CFR 927.7005 Subpart 928.3 -- Insurance
928.301 Policy.
928.370 Service-type insurance policies.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 12010, Mar. 28, 1984, unless otherwise noted.
48 CFR 927.7005 Subpart 928.1 -- Bonds
48 CFR 928.101-1 Policy on use.
(a) In addition to the restriction on use of bid guarantees in FAR
28.101-1(a), a bid guarantee may be required only for fixed price or
unit price contracts entered into as a result of sealed bidding. They
may not be required for negotiated contracts.
(50 FR 12185, Mar. 27, 1985)
48 CFR 928.101-70 Review of bid bonds for construction.
Prior to award of a contract, the contracting officer shall obtain a
review from Counsel of the bid bond furnished with the successful bid as
to legal form and sufficiency and as to acceptability of the surety.
Prior to award of a subcontract, the contracting officer shall review
the bid bond furnished with the successful bid as to legal form and
sufficiency and as to acceptability of the surety and adequacy of the
bond.
48 CFR 928.102-70 Review of performance and payment bonds for
construction.
Prior to the award of a contract for construction the contracting
officer shall obtain review of performance and payment bonds as to legal
form and sufficiency, acceptability of the surety, and adequacy of the
bond. A performance or payment bond, other than an annual bond, shall
not antedate the contract to which it pertains.
48 CFR 928.103-2 Performance bonds.
Situations in addition to those listed in FAR 28.103-2, which may
warrant requiring a performance bond for other than construction
contracts are:
(a) Where doubt exists as to the financial or technical ability of
all possible suppliers;
(b) Where the contractor's talent is overly concentrated in a few key
personnel whose illness or departure could seriously impair the
contractor's ability to perform the proposed work;
(c) Where other commitments of the contractor might delay
performance;
(d) Where performance of the proposed work might disrupt other
operations of the contractor and impair its overall efficiency; and
(e) Where the item being manufactured is a component for another
article and is required by a particular date in order to avoid delay in
delivery of the end product.
48 CFR 928.103-3 Payment bonds.
(a) A determination that is in the best interest of the Government to
require payment bonds in connection with other than construction
contracts may be made by the contracting officer on individual
acquisitions. Such approval is subject to the approval of the Head of
the Contracting Activity. In the case of either advertised or
negotiated acquisitions, whenever the contracting officer has reason to
believe that work under a proposed contract might be delayed because of
the concern of subcontractors or suppliers over the credit standing of a
potential prime contractor, the contracting officer should consider
requiring a payment bond.
48 CFR 928.103-70 Review of performance and payment bonds for other than
construction.
Prior to the award of a contract for other than construction the
contracting officer shall obtain review of performance and payment bonds
as to legal form and sufficiency, acceptability of the surety, and
adequacy of the bond. A performance or payment bond, other than an
annual bond, shall not antedate the contract to which it pertains.
48 CFR 928.170 Fidelity bonds.
Fidelity bonds shall not be required in connection with fixed-price
contracts. They may be required, however, in connection with
cost-reimbursement contracts for supplies, or construction, where it is
determined that a fidelity bond is necessary for the protection of the
Government or the contractor, or when it is considered desirable to
obtain the investigative and claim services of the surety company.
48 CFR 928.170 Subpart 928.2 -- Sureties
48 CFR 928.202-1 Corporate sureties.
Each corporate surety, may, by setting forth the limit of its
liability in the bond as a definite and specified sum, limit such
liability. The co-sureties must, however, bind themselves ''jointly and
severally'' for the purpose of allowing a joint action or actions
against any or all of them.
48 CFR 928.202-70 Partnerships as sureties.
A partnership or other unincorporated association, as such, shall not
be accepted as a surety. The individual members of the partnership or
association may, of course, qualify as sureties, provided they meet the
requirements set forth in FAR 28.202-2. Individual members of a
partnership or association shall not, however, be acceptable as sureties
on bonds under which the partnership or association, or any co-partner
or member thereof, is the principal obligor.
48 CFR 928.202-71 Substitution or replacement of a surety.
In case of financial inadequacy, failure, or other disqualifying
cause on the part of a surety under a bond, the contracting officer
shall require the substitution of a new surety satisfactory to the
contracting officer.
48 CFR 928.202-71 Subpart 928.3 -- Insurance
48 CFR 928.301 Policy.
The DOE policies and procedures for indemnification of DOE
contractors are set forth in FAR Part 50 and 950.
48 CFR 928.370 Service-type insurance policies.
(a) Service-type insurance policies are cost-reimbursement type
contracts or subcontracts in which the insurer provides claim and loss
adjustment services on a cost reimbursement basis, which satisfies state
and Federal insurance requirements.
(b) Service-type insurance policies may be used with contracting
officer approval, when one or more of the following conditions are
present:
(1) Pure risk commercial insurance is not available or, if available,
cost is not considered reasonable;
(2) Inherent risks in the contract are new and a part of the process
of commercialization;
(3) The service-type insurance is needed to implement jointly funded
projects; or
(4) The service-type insurance arrangement is considered in the
Government's best interest.
48 CFR 928.370 PART 931 -- CONTRACT COST PRINCIPLES AND PROCEDURES
48 CFR 928.370 Subpart 931.1 -- Applicability
Sec.
931.102 Fixed-price contracts.
48 CFR 928.370 Subpart 931.2 -- Contracts With Commercial Organizations
931.205-18 Independent research and development and bid and proposal
costs.
931.205-32 Precontract costs.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
48 CFR 928.370 Subpart 931.1 -- Applicability
48 CFR 931.102 Fixed-price contracts.
The intent of the first sentence of FAR 31.102 is that applicable
subparts of FAR Part 31 shall be used by the Government in (a) pricing
fixed-price prime contracts and modifications, (b) evaluating the
reasonableness of a prime contractor's (or prospective prime
contractor's) proposed subcontract (or subcontract modification) prices,
and (c) determining the allowability of contractor payments to
subcontractors in accordance with the provisions of FAR 31.204(b).
(49 FR 12011, Mar. 28, 1984)
48 CFR 931.102 Subpart 931.2 -- Contracts With Commercial Organizations
48 CFR 931.205-18 Independent research and development and bid and
proposal costs.
(c)(3) In determining the amount of cost recoverable under DOE
contracts the maximum total amount of annual IR&D costs recoverable
under all DOE contracts with a business unit or segment shall not exceed
(i) those contracts' allocable share of the business unit's (or
segment's) total allocable IR&D amounts (as established in accordance
with paragraphs FAR 31.205-18(c)(1) and (2)), or (ii) the total cost of
the business unit's (or segment's) annual IR&D activities determined to
have potential benefit or relationship to the DOE program, whichever is
less. The maximum total amount of B&P cost which is recoverable under
DOE contracts with a business unit (or segment) shall be those
contracts' share of the allocable B&P expense computed in accordance
with FAR 31.205-18(c)(1) and (2).
(4) For purposes of 931.205-18(c)(3), the term ''DOE program''
encompasses the DOE total mission and its objectives. However, IR&D
costs that exceed the benefit threshold at one business unit or segment
of a business organization cannot be used to offset IR&D costs that are
less than the benefit threshold of another segment or business unit.
(49 FR 12011, Mar. 28, 1984)
48 CFR 931.205-32 Precontract costs.
(a) To the extent practical, known expenditures of precontract costs
under DOE contracts should be governed by establishing advance
understandings as contemplated by FAR 31.109. Contracts that include
authorized precontract costs shall include the ''Date of Incurrence of
Cost'' clause specified at 952.231-70.
(b) The following limitations apply to establishment of advance
understandings relative to precontract costs:
(1) Precontract cost authorizations shall not be used to cover a
period in excess of 15 days, unless a longer period is approved by the
HCA based upon a written finding that such an allowance is reasonable,
and shall not be extended or renewed. A copy of the findings shall be
forwarded to the Procurement Executive at the time of approval. If
prolonged coverage is necessary, a letter contract shall be issued.
(2) All precontract cost authorizations shall be reviewed and
approved at a management level above the contracting officer.
(3) Retroactive precontract cost authorization and the predating of
contractual agreements shall not be used.
(4) Precontract cost authorizations shall not authorize the delivery
or furnishing of any goods or services from a contractor until after the
contract is executed.
(49 FR 12011, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 931.205-32 PART 932 -- CONTRACT FINANCING
48 CFR 931.205-32 Subpart 932.1 -- General
Sec.
932.102 Description of contract financing methods.
48 CFR 931.205-32 Subpart 932.3 -- Loan Guarantees for Defense
Production
932.304-2 Certificate of eligibility.
48 CFR 931.205-32 Subpart 932.4 -- Advance Payments
932.402 General.
932.407 Interest.
48 CFR 931.205-32 Subpart 932.5 -- Progress Payments Based on Costs
932.501-2 Unusual progress payments.
48 CFR 931.205-32 Subpart 932.6 -- Contract Debts
932.605 Responsibilities and cooperation among Government officials.
48 CFR 931.205-32 Subpart 932.7 -- Contract Funding
932.703-1 General.
48 CFR 931.205-32 Subpart 932.8 -- Assignment of Claims
932.802 Conditions.
932.803 Policies.
932.805 Procedure.
48 CFR 931.205-32 Subpart 932.9 -- Prompt Payment
932.908 Contract clause.
932.970 Implementing DOE policies and procedures.
48 CFR 931.205-32 Subpart 932.70 -- DOE Loan Guarantee Authority
932.7000 Scope of subpart.
932.7001 Definitions.
932.7002 Authority.
932.7003 Policies.
932.7004 Procedures.
932.7004-1 Guaranteed loans for civilian programs.
932.7004-2 Criteria.
932.7004-3 Eligibility.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 12011, Mar. 28, 1984, unless otherwise noted.
48 CFR 931.205-32 Subpart 932.1 -- General
48 CFR 932.102 Description of contract financing methods.
(e)(2) Progress payments based on a percentage or stage of completion
are authorized for use as a payment method under DOE contracts or
subcontracts for construction, alteration or repair, and shipbuilding
and conversion. For all other contracts, progress payment provisions
shall be based on costs, as provided in FAR Subpart 32.5, and Subpart
932.5 of this chapter, except that progress payments based on a
percentage or stage of completion may be authorized by the Head of the
Contracting Activity when a determination is made that progress payments
based on costs cannot be practically employed and that there are
adequate safeguards provided for the administration of progress payments
based on a percentage or stage of completion.
48 CFR 932.102 Subpart 932.3 -- Loan Guarantees for Defense Production
48 CFR 932.304-2 Certificate of eligibility.
(h) Guaranteed loan applications shall be authorized and transmitted
to the Federal Reserve Bank only by the Secretary or designee specified
for that purpose.
48 CFR 932.304-2 Subpart 932.4 -- Advance Payments
48 CFR 932.402 General.
(e)(1) The Head of the Contracting Activity or designee shall have
the responsibility and authority for making findings and determinations,
and for approval of contract terms concerning advance payments.
(2) Before authorizing any advance payment arrangements, the
approving official shall obtain the advice, and other inputs of the
servicing finance office.
48 CFR 932.407 Interest.
(d)(4) Advance payments may be made without interest under
cost-reimbursement contracts for construction or engineering services.
48 CFR 932.407 Subpart 932.5 -- Progress Payments Based on Costs
48 CFR 932.501-2 Unusual progress payments.
(a)(3) The Head of the Contracting Activity shall forward all
requests which are considered favorable, with supporting information, to
the Procurement Executive, who, after coordination with the Controller,
will approve or deny the request.
(d) Requests for unusual progress payments will not be considered as
a handicap or adverse factor in the award of a contract; provided the
bid or proposal is not conditioned on approval of such request.
48 CFR 932.501-2 Subpart 932.6 -- Contract Debts
48 CFR 932.605 Responsibilities and cooperation among Government
officials.
(b) The DOE contracting officer has primary responsibility for
determining the amount of contract debt and notifying the cognizant
finance office of such debt due the Government. The servicing DOE
finance office making payments under the contract has primary
responsibility for debt collection.
48 CFR 932.605 Subpart 932.7 -- Contract Funding
48 CFR 932.703-1 General.
(a) The contracting officer shall, prior to contract award and
obligation of funds, ensure sufficient funds are available to cover the
maximum amount of Government liability being created under a fully
funded contract; e.g., the ceiling price under a fixed-price incentive
or redeterminable contract.
(b) For incrementally funded contracts the contracting officer shall
limit the Government's liability to available funds and only require a
contractor to provide;
(1) The property or services for which funds are available under a
fixed price arrangement; or
(2) The intended increment of work and a proportionate amount of fee
under a cost-reimbursement contract.
48 CFR 932.703-1 Subpart 932.8 -- Assignment of Claims
48 CFR 932.802 Conditions.
(d)(1) This paragraph covers all unpaid amounts payable under the
contract except that partial assignments may be permitted when primarily
for the benefit of the Government.
48 CFR 932.803 Policies.
(d) In the case of prime contracts, when it has been determined that
the financing of contracts will be facilitated in the interest of DOE
programs, it is the policy of DOE that such contracts provide, or be
amended without consideration (see Assignment of Claims Act of 1940) to
provide, in conformance with FAR 32.804, that payments to be made to an
assignee shall not be subject to reduction or setoff. In the case of
subcontracts, when loans are made for the purpose of financing
performance of subcontracts under DOE prime contracts, financing
institutions or the Government as guarantor in those instances in which
such loans are guaranteed should not be required to incur risks of loss
by reason of possible diversion of assigned subcontracts proceeds for
payment of other claims of the prime contractor against the borrower,
otherwise unrelated to the assigned subcontracts. The Head of the
Contracting Activity shall require the adoption of these policies and
practices by DOE prime contractors with respect to DOE subcontract work.
The Head of the Contracting Activity should inform the Controller of
each DOE contractor who is unwilling to adopt policies consistent with
this paragraph and the reasons given in support of the contractor's
position.
48 CFR 932.805 Procedure.
(f) For classified contracts, the assignee should ordinarily be
furnished, upon request, with the following information, as applicable,
in lieu of a copy of the contract:
(1) Name and address of the DOE prime contractor;
(2) Prime contract number and date;
(3) Name, address, and phone number of responsible official in the
(i) DOE office receiving the material or service; and
(ii) DOE finance office making payments;
(4) Subcontract number or purchase order number;
(5) Date of the subcontract or purchase order;
(6) Date on which prime contract, subcontract, or purchase order is
to be completed;
(7) Total amount of the subcontract or purchase order;
(8) Dollar amount remaining to be delivered on prime contract,
subcontract, or purchase order; and
(9) A statement as to the assignability of the prime contract,
subcontract, or purchase order.
48 CFR 932.805 Subpart 932.9 -- Prompt Payment
48 CFR 932.908 Contract clause.
(c) The contracting officer shall incorporate paragraph (c),
Electronic Funds Transfer, promulgated as Alternate II at FAR 52.232-25,
in solicitations and contracts containing the basic Prompt Payment
clause or its Alternate I as prescribed at FAR 32.908(a) and FAR
32.908(b), respectively.
(54 FR 9808, Mar. 8, 1989)
48 CFR 932.970 Implementing DOE policies and procedures.
(a) Invoice payments. (1) Contract Settlement Date. For purposes of
determining payment due dates on a final invoice pursuant to paragraph
(a)(2)(ii) of the basic Prompt Payment clause and (a)(2)(i)(B) of its
Alternate I at FAR 52.232-25, contract settlement occurs when the
contracting officer determines that the contractor has complied with all
contract terms and conditions, including all administrative requirements
(e.g., execution and delivery of contractor's release of claims,
execution of understandings setting forth final indirect cost rates, and
establishment of final contract price). In addition, for purposes of
determining any interest penalties under cost-type contracts, the
effective date of contract settlement shall be the effective date of the
final contract modification issued to acknowledge contract settlement
and to close out the contract.
(2) Constructive acceptance periods. It is expected that, in the
majority of cases, Government acceptance or approval can occur within
the standard constructive acceptance or approval periods specified in
paragraphs (a)(6)(i) of the basic Prompt Payment clause and (a)(5)(i) of
its Alternate I at FAR 52.232-25. However, the contracting officer
should coordinate these provisions with the DOE official(s) that will be
responsible for performing the acceptance and/or approval function(s).
Where the contracting officer determines, in writing, on a case-by-case
basis, that it is not reasonable or feasible for DOE to perform the
acceptance or approval function within the standard period, the
contracting officer should specify a longer constructive acceptance or
approval period, as appropriate. Considerations include, but are not
limited to, the nature of supplies or services involved, geographical
site location, inspection and testing requirements, shipping and
acceptance terms, and available DOE resources.
(b) Contract Financinq Payments. (1) The standard payment due date,
to be specified by the contracting officer in paragraphs (b)(2) of the
basic Prompt Payment clause and its Alternate I at FAR 52.232-25, shall
normally be 30 days for progress payments and 30 days for interim
payments on cost-type contracts.
(2) Contracting officers may specify payment due dates that are less
than the standard when a determination is made, in writing, on a
case-by-case basis, that a shorter contract financing payment cycle will
be required to finance contract work. In such cases, the contracting
officer should coordinate with the finance and program officials that
will be involved in the payment process to ensure that the contract
payment terms to be specified in solicitations and resulting contract
awards can be reasonably met. Consideration should be given to
geographical separation, workload, contractor ability to submit a proper
request, and other factors that could affect timing of payment.
However, payment due dates that are less than 7 days for progress
payments or less than 14 days for interim payments on cost-type
contracts are not authorized
(54 FR 9808, Mar. 8, 1989)
48 CFR 932.970 Subpart 932.70 -- DOE Loan Guarantee Authority
48 CFR 932.7000 Scope of subpart.
This subpart prescribes policies and procedures for guarantees of
loans made by a private financial institution to borrowers performing
DOE contracts relating to DOE programs for which guaranteed loans are
authorized by legislation.
48 CFR 932.7001 Definitions.
(a) The terms borrower, Federal Reserve Board, and guaranteed loan
have the same meaning set forth in FAR 32.301.
(b) Guaranteeing Agency as used in this subpart, means the Department
of Energy when authorized to guarantee loans through the Federal Reserve
Banks.
48 CFR 932.7002 Authority.
Guaranteed loan applications shall be authorized and transmitted to
the Federal Reserve Board only by the Secretary, or designee specified
for that purpose, and only when made pursuant to enabling legislation or
other authority; e.g., by executive order or regulation.
48 CFR 932.7003 Policies.
The following policies governing the exercise of its loan guarantee
authority have been established by DOE:
(a) The use of the loan guarantee authority is not restricted to
contracts or subcontracts of any particular type or of class. Each case
is to be evaluated on its own merits and under the particular
circumstances applicable thereto.
(b) The fact that a contract has been awarded as a result of
competitive bidding should not, of itself, render the loan ineligible
for guarantee by DOE if the contractor is financially responsible and
its need for working capital is the result of the impact of a defense
program or any other DOE program for which guaranteed loans are
authorized.
(c) The guarantee authority should, in general, not be used in
connection with loans to contractors required to furnish performance
bonds, except in those cases in which the time likely to be required for
the surety or DOE to take over in the event of default will result in
delays which cannot be tolerated by the particular program concerned.
When performance bonds have been furnished, the surety shall be required
to subordinate its rights in favor of the guaranteed loan.
(d) The criterion that the materials or services to be provided
cannot readily be acquired from alternative sources does not require the
finding that the materials or services are absolutely unobtainable
elsewhere. The criterion should be so applied as to permit guarantees
of loans when, although the materials or services can be obtained
elsewhere, such factors as the urgency of supply schedules, technical
capacity of the contractor, comparative prices, and time and expense
involved in reissuing the contract, including termination payment,
establish that it is to the Government's advantage not to resort to
alternative sources merely because the contractor or subcontractor may
require a guaranteed loan.
(e) If it is known at the time the contract is to be awarded that the
low offeror who is technically qualified and competent to furnish the
required materials and services will require a guaranteed loan, the
contracting officer should obtain appropriate advice and in reaching a
decision should consider at least the following:
(1) The savings to be realized by awarding the contract to the low
offeror;
(2) The risk to the Government in guaranteeing a loan; and
(3) The likelihood, if award is made to the second low offeror, of
that offeror's applying for a guaranteed loan at a later date.
Extreme care should be exercised in rejecting a low bid or proposal
simply because the low offeror requires a guaranteed loan.
(f) The amount of the loan should bear reasonable relationship to
such factors as the value and terms of the contract, the probable
investment required to be made by the contractor in payrolls and
inventories, the frequency with which contract payments are to be made,
and the borrower's current working capital position.
(g) Borrowings for working capital purposes under guaranteed loans
shall be limited to the amount necessary to perform the contract for
which the loan is sought. In order that the contractor will also use
its own funds in the performance of the contracts, amounts outstanding
under the loan or line-of-credit shall be limited to an amount not to
exceed 90 percent of the borrower's investment in its contracts,
regardless of the total amount of the loan or line of credit authorized.
The borrower's investment includes all items for which the borrower
would be entitled to payment on performance or termination of contracts,
but does not include any items for which no work has been done nor
expenditures made.
(h) Unless there are exceptional circumstances, the loan should
mature not later than 30 days after the estimated date of final payment
under the contract.
932.7004 Procedures.
48 CFR 932.7004-1 Guaranteed loans for civilian programs.
The procedures for authorizing a guaranteed loan under legislation
other than section 301 of the Defense Production Act of 1950 (50 U.S.C.
App. 2091) shall be essentially the same as those set forth in FAR
32.304, Procedures, FAR 32.305, Loan Guarantees for Terminated
Contracts, and FAR 32.306 Loan Guarantee for Subcontacts; except that
any contrary provisions required by enabling legislation authorizing the
loan shall govern.
48 CFR 932.7004-2 Criteria.
(a) The materials or services to be furnished by the contractor are
necessary to the Government interest.
(b) The materials or services cannot as a practical matter be
obtained from alternate sources without delay or impeding the
Government's interest, except that no small business concern shall be
held ineligible for the issuance of such guarantee by reason of
alternative sources of supply.
(c) The contractor has demonstrated its inability to obtain the
necessary financing in conventional credit channels without the
guarantee.
(d) There is reasonable assurance that the loan can be repayed.
(e) The contractor is competent to perform the contract.
48 CFR 932.7004-3 Eligibility.
The applicant's eligibility for a guaranteed loan will be based on:
(a) Contracting officer determinations and findings regarding items
(a), (b) and (e) in 932.7004-2 as incorporated in a Certificate of
Eligibility (FAR 32.304-2); and
(b) The Controller's determination for items (c) and (d) in
932.7004-2 based on information contained in the application, the
Federal Reserve Bank's report, and information furnished by the
contracting activity concerned.
48 CFR 932.7004-3 PART 933 -- PROTESTS, DISPUTES, AND APPEALS
48 CFR 932.7004-3 Subpart 933.1 -- Protests
933.102 General.
933.103 Protests to the agency.
933.104 Protests to GAO.
933.105 Protests to GSBCA.
933.106 Solicitation provision.
933.170 Subcontract level protests.
48 CFR 932.7004-3 Subpart 933.2 -- Disputes and Appeals
933.211 Contracting officer's decision.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 51 FR 31336, Sept. 3, 1986, unless otherwise noted.
48 CFR 932.7004-3 Subpart 933.1 -- Protests
48 CFR 933.102 General.
(a)(1) The contracting officer shall attempt to informally resolve a
protest by discussions except when such attempts would be inappropriate
(e.g., further communications would be futile). Protests to the
Department and to the General Accounting Office (GAO) may be withdrawn
by a telephone call from the protester.
(2) The contracting officer should coordinate the handling of any
protest with counsel. Communications to a protester or other interested
party should almost always be coordinated with counsel. When
conferences are held with the GAO, counsel shall play a key role in
representing the Department. The Department's defense of a protest to
the General Services Administration Board of Contract Appeals or to a
court shall be managed by counsel.
(c) If a protest involves a decision of a source selection official
at the Headquarters level, the contracting activity position shall be
coordinated with the Assistant General Counsel for Procurement and
Finance, Headquarters, before submitting a report in response to a
protest.
48 CFR 933.103 Protests to the agency.
(a) When a protest to an acquisition under which no award has been
made is filed only with the Department of Energy (contracting activity
or Headquarters), an award shall not be made until the matter is
resolved unless a Head of the Contracting Activity (HCA) request to make
award, concurred in by counsel, using the criteria of FAR 33.103(a),
endorsed by the program secretarial officer, is approved by the
Procurement Executive. The request shall establish that one of the
following applies:
(1) The supplies or services to be contracted for are urgently
required,
(2) Delivery or performance will be unduly delayed by failure to make
award promptly.
(3) A prompt award will otherwise be advantageous to the Government.
(c) Protests based upon alleged improprieties in a solicitation which
are apparent prior to bid opening or the closing date for receipt of
initial proposals must be filed prior to bid opening or the closing date
for receipt of initial proposals. In acquisitions where proposals are
requested, improprieties which do not exist in the initial solicitation
but which are allegedly subsequently incorporated into the solicitation
must be protested not later than the next closing date for receipt of
proposals following the incorporation. In cases other than these,
protests must be filed no later than 10 working days after the basis of
protest is known or should have been known, whichever is earlier. These
time limits may be waived by the deciding official if it is determined
to be in the Department's best interest.
(d)(1) Protests made before or after award filed at the Headquarters
level shall be decided by the Procurement Executive.
(2) Protests made before or after award to a DOE contracting activity
shall be decided by the HCA except for the following cases, which shall
be decided by the Procurement Executive:
(i) The action is protested to the Headquarters level prior to its
resolution by the HCA.
(ii) The HCA is the signatory contracting officer.
(iii) The HCA finds that the issues raised have the potential for
significant impact on DOE acquisition policy.
(3) The Department will cease processing an agency protest which is
also made outside the Department.
(4) If a protest is filed with a contracting activity and a decision
is rendered, the Department will not entertain a protest of the same
issue to Headquarters.
(5) The Business Clearance Division, Headquarters, shall be notified
immediately of all protests (Headquarters or contracting activity) filed
with the contracting activity.
(e) Upon receipt of a protest lodged with the Department, the
contracting officer shall prepare a report similar to that discussed in
FAR 33.104(a)(2). In the case of a protest filed at the Headquarters
level, the report shall be forwarded to the Business Clearance Division
within 25 working days of being notified of such a protest with a
proposed response to the protest. The contracting officer shall check
with the Business Clearance Division as to the number of copies of the
report to be submitted. The Procurement Executive (for protests at the
Headquarters level or those specific HCA protests cited in (d)(2) of
this section) or an HCA (for protests at the contracting activity level)
will render a decision on a protest within 45 working days, unless a
longer period of time is determined to be needed. In the case of a
protest to a contracting activity, the contracting officer shall
immediately furnish the Business Clearance Division with a copy of the
protest and an information copy of the protest report and the HCA's
decision when issued.
48 CFR 933.104 Protests to GAO.
(a)(1) The Department's position, to be set forth in an agency
report, shall be coordinated with counsel as soon as practical.
(3) The notice to other persons, discussed at FAR 33.104(a)(3), shall
be given by the contracting officer. The interested parties shall be
advised that they may submit their views and relevant information
directly to the GAO, with a copy to the contracting officer and another
copy to the U.S. Department of Energy, Business Clearance Division
(MA-441), Washington DC 20585.
(4) The contracting activity shall submit --
(i) A complete report in quadruplicate plus one copy for each
interested party,
(ii) The name and address of each interested party, and
(iii) Identification of the privileged information not to be released
outside of the Government, to the following address within 20 working
days of the date of receipt from GAO of the telephonic notice of such
protest (unless a different time period is established by the Business
Clearance Division), or within 7 working days after receipt of
notification of a determination to use the express option (unless a
different time period is established by the Business Clearance
Division), unless the factors at FAR 33.104(a)(4) (i) and (ii) apply:
U.S. Department of Energy Business Clearance Division (MA-441)
Forrestal Building, Room 1I-030 1000 Independence Avenue, SW
Washington, DC 20585.
If the contracting officer anticipates any delay in meeting these due
dates, immediate contact shall be made with the Business Clearance
Division, Headquarters. This shall be followed up with a written
explanation of the reason for delay to the Business Clearance Division.
(5)(i) Distribution of the agency report to the GAO, the protester
and the other interested parties regarding the protest, shall be made by
the Business Clearance Division.
(6) The Procurement Executive has the authority and responsibility
for reviewing and forwarding to the GAO the information required by FAR
33.104(a)(2) and otherwise coordinating communications with the GAO.
This authority has been delegated to the Director, Business Clearance
Division.
(b) Protests before award. (1) Except in the case of a subcontract
level protest, when the Department has received notice from the GAO of a
protest filed directly with the GAO, a contract may not be awarded until
the matter is resolved, unless authorized by the head of the contracting
activity in accordance with FAR 33.104(b). Before the head of the
contracting activity authorizes the award, the required finding shall be
concurred in by counsel, endorsed by the program secretarial officer,
and approved by the Procurement Executive. The finding shall address
the likelihood that the protest will be sustained by the GAO. A copy of
the signed authorization shall be furnished to the Business Clearance
Division, Headquarters. If a protest is at the subcontract level, the
award decision will be resolved on a case-by-case basis as discussed in
933.170.
(c) Protests after award. (1) If a protest is at the subcontract
level, the provisions of 933.170 shall apply.
(2) If a contracting activity believes that it should not immediately
suspend performance or terminate the prime contract, it shall contact
the Business Clearance Division, Headquarters, for instructions on
required due dates and clearance approvals for the written authorization
to continue performance. The written finding authorizing contract
performance shall address the likelihood that the protest will be
sustained by the GAO. A copy of the signed finding and authorization
shall be furnished to the Business Clearance Division, Headquarters.
(f) Notice to GAO. (1) The notice to the GAO, discussed at FAR
33.104(f), shall be given by the HCA making the award, after approval of
the Procurement Executive, provided no DOE-wide policy issue is
involved, in which case the notice shall be given by the Procurement
Executive.
(2) It is the policy of the Department to promptly comply with
recommendations set forth in Comptroller General Decisions except for
compelling reasons.
(3) Requests for reconsideration shall be handled in accordance with
GAO Bid Protest Regulations 21.12.
48 CFR 933.105 Protests to GSBCA.
(a)(1)(i) If a subcontract level protest against a purchase of ADPE
is lodged with the GSBCA, the cognizant contracting officer will
promptly notify the Office of the Assistant General Counsel for
Procurement and Finance, Headquarters through local counsel.
(ii) Communications from a contracting activity to the GSBCA which
are likely to provoke unusual public interest or are of a new or unusual
nature (e.g., communications regarding a subcontract level protest)
shall be coordinated with the Office of the Assistant General Counsel
for Procurement and Finance, Headquarters prior to their submission.
This office (and/or the Business Clearance Division, Headquarters) is
available for consultation and assistance to personnel of a contracting
activity.
(2)(i) The interested parties shall be advised that they may submit
their views and relevant information directly to the GSBCA with a copy
to the contracting officer.
(iii) The respondent (DOE) may appear before the GSBCA by an attorney
at law or by the contracting officer or that individual's representative
(GSBCA Rules of Procedure, Rule 6). DOE appearances before the GSBCA
shall be managed by counsel of the cognizant contracting activity.
(iv) A prehearing conference will ordinarily be held within 6
calendar days after the filing of the protest (GSBCA Rules of
Procedures, Rule 10). The DOE shall be represented by counsel of the
cognizant contracting activity at such conference.
(b) The agency file, to be submitted within 10 working days of the
filing of a protest, as required by Rule 4 of the GSBCA Rules of
Procedure, shall be assembled by the contracting officer in coordination
with counsel of the cognizant contracting activity.
(c) The preparation of the agency response setting forth the
Department's defenses to the protest to be submitted within 15 working
days after the filing of a protest (GSBCA Rules of Procedure, Rule 7)
shall be managed by counsel of the cognizant contracting activity.
(d)(1) At a hearing on a request for suspension of procurement
authority, the DOE shall be represented by counsel of the cognizant
contracting activity.
(2) The determinations and findings required by FAR 33.105(d)(2)
shall be executed by the HCA.
(4) If the GSBCA suspends the procurement authority to acquire any
goods or services not previously delivered and accepted under an awarded
contract, the contracting officer shall invoke the clause entitled
''Stop-Work Order'' (FAR 52.212-13) or otherwise cause the contractor to
cease performance and to suspend related activities that may result in
additional obligations being incurred by the Government.
(g) Prior to appealing a final decision of the GSBCA, the contracting
activity shall consult with the Office of the Assistant General Counsel
for Procurement and Finance and with the Business Clearance Division,
Headquarters.
(h) The contracting officer promptly after receipt shall furnish an
information copy of a protest and the Decision(s) of the GSBCA to the
Business Clearance Division.
(51 FR 31336, Sept. 3, 1986, as amended at 56 FR 41965, Aug. 26,
1991)
48 CFR 933.106 Solicitation provision.
The contracting officer shall supplement the provision at 52.233-2,
Service of Protest, in solicitations for other than small purchases by
adding the provision at 952.233-2.
48 CFR 933.170 Subcontract level protests.
(a) The General Accounting Office has stated it will not consider
subcontract level protests except where the subcontract is ''by'' or
''for'' the Government (see Optimum Systems, Incorporated, 54 Comp.
Gen. 767 (1975), 75-1 CPD 166). The Department also will not consider
a subcontract level protest except where the subcontract is ''by'' or
''for'' the Government. If the subcontract level protest involves a
management and operating prime contractor, see Subpart 970.4406.
(b) Upon receiving notice of a subcontract level protest to the
Department prior to award, the contracting officer shall notify the
prime contractor and shall direct that award not be made prior to
resolution of such protest unless a request to make an award in the face
of a protest is approved by the Procurement Executive in accordance with
933.103(a). If notice of a protest is filed with the contracting officer
within 10 days after award, the contracting activity shall contact the
Headquarters Business Clearance Division for guidance.
(c) Upon receiving notice of a subcontract level protest to the GAO
either before or after award the contracting officer shall contact the
Business Clearance Division Headquarters for guidance relating to
suspension of award or stay of performance.
(d) Within 3 working days of notice of a subcontract level protest,
to the Department or with the GAO, the contracting officer shall develop
a position on whether the protest falls within the scope of paragraph
(a) above and shall communicate that position to the Business Clearance
Division. If it is determined that the protest falls within the scope
of paragraph (a), a report shall be prepared in accordance with
applicable procedures. If it is determined that the protest does not
fall within the scope of paragraph (a), a report shall be prepared
making a case for nonjurisdiction. Where a reasonable question exists
as to whether the GAO or DOE should take jurisdiction, the Department's
report should address both the jurisdiction and merit issues.
(e) If the GAO or the Procurement Executive does not agree with a
report recommending nonjurisdiction, a supplemental report addressing
the merit issue shall be provided to the Business Clearance Division
within 15 working days of notification of such disagreement.
(f) Preparation of reports on subcontract level protests is the
responsibility of the contracting officer. Assistance shall be obtained
from DOE counsel and may be obtained from the prime contractor to the
degree deemed appropriate.
48 CFR 933.170 Subpart 933.2 -- Disputes and Appeals
48 CFR 933.211 Contracting officer's decision.
(a) In addition to the information specified in FAR 33.211, the
contracting officer's decision shall include the contracting officer's
written findings of fact.
48 CFR 933.211 SUBCHAPTER F -- SPECIAL CATEGORIES OF CONTRACTING
48 CFR 933.211 PART 935 -- RESEARCH AND DEVELOPMENT CONTRACTING
Sec.
935.007 Solicitations.
935.010 Scientific and technical reports.
935.015 Contracts for research with educational institutions and
nonprofit organizations.
935.016 Research opportunity announcements.
935.016-1 Scope.
935.016-2 Applicability.
935.016-3 Definitions.
935.016-4 Issuance of Research Opportunity Announcements.
935.016-5 Content of proposal submissions.
935.016-6 Receipt and handling of proposals and late proposal
submission.
935.016-7 Evaluation of proposals.
935.016-8 Selection of proposals.
935.016-9 Responsibilities of the awarding contracting activity.
935.070 Contract clauses.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 12016, Mar. 28, 1984, unless otherwise noted.
48 CFR 935.007 Solicitations.
See Subpart 917.72 for the conditions under which Program Research
and Development Announcements may be used, and the procedures for their
use.
48 CFR 935.010 Scientific and technical reports.
(c) All research and development contracts which require submission
of scientific and technical reports, shall include an instruction
requiring the contractor to submit all scientific and technical reports,
and any other notices or reports relating thereto, to the following
address: U.S. Department of Energy, Office of Scientific and Technical
Information, P.O. Box 62, Oak Ridge, TN 37831. The phrase ''any other
notices or reports relating thereto'' does not include notices or
reports concerning administrative matters such as contract cost or
financial data and information.
(d) Contractors shall be required to submit with each report a
completed DOE Form 1332.15, ''DOE and Major Contractor Recommendations
for Announcement and Distribution of Documents,'' except when the
contract is with an educational institution, in which case the
contractor shall be required to submit with each report a completed DOE
Form 1332.16, ''University Contractor, Grantee and Cooperative Agreement
Recommendations for Announcement and Distribution of Documents.''
(56 FR 41965, Aug. 26, 1991)
48 CFR 935.015 Contracts for research with educational institutions and
nonprofit organizations.
See Subpart 917.71 for the conditions and procedures under which
Special Research Contracts may be used and the procedures for their use.
48 CFR 935.016 Research opportunity announcements.
48 CFR 935.016-1 Scope.
(a) Sections 935.016 and 935.016-1 through 935.016-9 set forth the
policies and procedures for contracting for research through the use of
broad agency announcements as authorized by the Competition in
Contracting Act of 1984 (CICA) (41 U.S.C. 259(b)(2)) and Federal
Acquisition Regulation (FAR) 6.102(d)(2). Within DOE, broad agency
announcements will be designated as Research Opportunity Announcements
(ROAs).
(b) Research Opportunity Announcements are a form of competitive
solicitation under which DOE's broad mission- and program-level research
objectives are defined; proposals which offer meritorious approaches to
those objectives are requested from all offerors capable of satisfying
the Government's needs; those proposals are evaluated by scientific or
peer review against stated specific evaluation criteria; and selection
of proposals for possible contract award is based upon that evaluation,
the importance of the research to the program objectives, and the funds
availability.
(55 FR 33314, Aug. 15, 1990)
48 CFR 935.016-2 Applicability.
(a) Sections 935.016 and 935.016-1 through 935.016-9 apply to all DOE
Headquarters and field program organizations which, by virtue of their
statutorily mandated mission or other such authority as may exist,
support energy or energy-related research activities through contractual
relationships.
(1) The ROA may be used as a competitive solicitation procedure
through which DOE acquires basic and applied research in support of its
broad mission- and program-level research objectives, and these
objectives may be best achieved through relationships where contractors
pursue diverse and dissimilar solutions and approaches to scientific and
technological areas related to DOE's missions and programs.
(2) The ROA shall not be used as a solicitation method when one or
more of the following conditions exist:
(i) In accordance with the Federal Grant and Cooperative Agreement
Act, Public Law 97-258, the principal purpose of the relationship will
be assistance;
(ii) The purpose of the research is to accelerate the demonstration
of the technical, operational, economic, and commercial feasibility and
environmental acceptability of particular energy technologies, systems,
subsystems, and components that would appropriately be acquired by
Program Opportunity Notices (PONs) in accordance with subpart 917.72;
(iii) The research is required in support of a specific project area
within an energy program which appropriately would be acquired by
Program Research and Development Announcements (PRDAs) in accordance
with subpart 917.73;
(iv) The research requirements can be sufficiently defined to allow
the use of contracting by negotiation in accordance with Federal
Acquisition Regulation (FAR) part 15;
(v) The purpose of the research is the acquisition of goods and
services related to the development of a specific system or hardware
acquisition; or,
(vi) Any funds to be obligated to a resulting contract will be used
to conduct or support a conference or training activity.
(b) The following limitations are applicable to the use of ROAs:
(1) The use of broad agency announcements for the acquisition of that
part of development not related to the development of a specific system
or hardware is authorized by FAR 35.016(a). Notwithstanding that
authorization, ROAs shall be used within DOE only to acquire basic and
applied research.
(2) Proposals shall not be solicited from, and contracts shall not be
awarded to, any specific entity which operates a Government-owned or
-controlled research, development, special production, or testing
establishment, such as DOE's management and operating contractor
facilities, Federally Funded Research and Development Centers chartered
by other agencies, or other such entities. This limitation shall not be
used to preclude the parent organization of the entity operating the
Government-owned or -controlled facility, its subsidiaries, other
divisions, or other related business affiliates from proposing, or
receiving awards, under DOE's ROA solicitations, provided that any
proposed resources (personnel, facilities, and other resources) used in
the management and operation of the Government-owned or -controlled
facility have been approved for use in the ROA effort by the sponsoring
agency.
(55 FR 33314, Aug. 15, 1990)
48 CFR 935.016-3 Definitions.
Awarding Contracting Activity, for purposes of 935.016 and
935.016-1 through 935.016-9, means any DOE Contracting Activity assigned
to negotiate, award, and administer a resultant contract, and otherwise
perform related post-selection acquisition functions.
Cognizant Contracting Activity and ''Contracting Activity'', for
purposes of sections 935.016 and 935.016-1 through 935.016-9, mean the
DOE Contracting Activity assigned to perform all acquisition functions
from the initiation of the ROA requirement through completion of the
selection process. The Cognizant Contracting Activity (''Contracting
Activity'') shall be that DOE Contracting Activity which is anticipated
to be the primary and predominant Awarding Contracting Activity for the
negotiation, award, and administration of resultant contracts. However,
the initial assignment of a Contracting Activity as the ''Cognizant
Contracting Activity'' for the ROA does not preclude the designation of
additional Contracting Activities as Awarding Contracting Activities
after the selection decision(s).
Cognizant DOE Program Office, DOE Program Office, and Program Office
mean the Headquarters or field office element with direct responsibility
for issuance of the ROA and the subsequent evaluation and selection of
proposals.
Objective review means a thorough, consistent and independent
examination and evaluation of a proposal by persons knowledgeable in the
field of endeavor for which support is requested; such review is
conducted to provide facts and advice to the selection official based
upon the evaluation criteria established in the ROA.
Peer reviewer means a professional individual not employed by the
Government selected to conduct an objective review of a research
proposal, because that individual has expertise in the same or related
scientific or technical field as the research area set forth in the
proposal and is recognized in the scientific or technical community.
Scientific reviewer means a professional Government employee selected
to conduct an objective review of a research proposal because that
individual has expertise in the same or related scientific or technical
field as the research area set forth in the proposal.
Selection Official means the Senior Program Official or designee
having the authority to select for award those proposals received in
response to an ROA which were determined to be meritorious in relation
to the evaluation criteria and the program policy factors set forth in
the ROA.
Senior Program Official, for purposes of sections 935.016 and
935.016-1 through 935.016-9, means, in addition to those individuals
listed in 902.100, Managers of DOE Operations Offices, and Directors of
DOE Energy Technology Centers.
(55 FR 33315, Aug. 15, 1990)
48 CFR 935.016-4 Issuance of Research Opportunity Announcements.
(a) In order to maintain a comprehensive and well-integrated research
program, the cognizant DOE program office shall be responsible for
issuance of the ROA and the subsequent evaluation and selection of
proposals.
(b) Each ROA shall consist of the following:
(1) An ROA identification number and the statutory and/or regulatory
authority for the issuance of the ROA;
(2) The title of the ROA;
(3) A description of the program objectives and, where appropriate, a
statement of the intended uses by DOE of the results of the research;
(4) A summary of the research agenda or potential areas for research
initiatives, including any areas requiring additional research or any
other information which identifies research areas in which contracts may
be awarded;
(5) The period of time during which proposals will be accepted from
offerors for evaluation and other information concerning the
consideration and disposition of late porposals;
(6) The total amount of money available or estimated to be available
for potential contract awards;
(7) The name and address of the DOE program office responsible for
issuance of the ROA;
(8) The address for receipt of proposals;
(9) The name of the DOE official within the program office to serve
as a point of contact for:
(i) Additional information,
(ii) The list of any specific proposal forms to be used by the
offeror in submitting a proposal, and
(iii) The address where those forms may be obtained;
(10) All business, technical, and/or cost evaluation (including any
requirement for cost participation by the offeror) criteria, including
any additional criteria to those set forth in this subpart, the relative
importance of the evaluation criteria, and other appropriate proposal
preparation instructions;
(11) Any factors to be considered in determining the importance of
any proposed research to the program objectives;
(12) A statement that DOE is under no obligation to reimburse the
offeror for any costs associated with the preparation or submission of
proposals;
(13) A statement that DOE reserves the right to fund, in whole or in
part, any, all or none of the proposals submitted;
(14) A statement that DOE is not required to return to the offeror a
proposal which is not selected;
(15) A statement that each proposal will be objectively reviewed on
its own merit against the evaluation criteria stated in the ROA using
scientific and/or peer reviewers, and that selection of a proposal will
be made in consideration or that evaluation, the importance of the
proposed research to the program objectives, and funds availability;
(16) A statement that DOE is not obligated to award a contract to an
offeror merely because the offeror's proposal was accepted by DOE for
evaluation.
(c) The Senior Program Official of the cognizant DOE program office
shall determine in writing, after consultation with the responsible
Contracting Officer at the Cognizant Contracting Activity, that the use
of a ROA is both necessary and appropriate as a solicitation instrument
in meeting program objectives. This determination shall be made prior
to the issuance of the ROA, and shall be based upon facts and
explanations which address the conditions stated in 935.016-1 (a) and
(b), and any other pertinent information.
(d) Prior to the synopsis and issuance of the ROA, a confidential
plan(s) establishing a common basis for the evaluation of proposals
shall be developed. This plan shall directly correspond to the
evaluation criteria that will be specified in the ROA.
(e) Review of the ROA solicitation prior to its issuance will be
consistent with solicitation review procedures established by the
cognizant Contracting Activity.
(f) Each ROA issued will provide for a proposal submission period of
a least ninety (90) days but not greater than one year. However, in
instances where the Program Office intends to issue a succeeding ROA,
and such issuance may become unduly delayed because of administrative
procedures, the program office may amend the current ROA to extend the
open period for up to an additional sixty (60) days. ROAs may be
reissued by the program office at any time to become effective after the
original ROA proposal submission period has elapsed, subject to the same
requirements of this subpart as a new ROA.
(g) The full text of the ROA will be published in the Federal
Register. The Contracting Officer will announce the availability of the
ROA in the ''Commerce Business Daily'' in accordance with FAR 35.016(c).
Information concerning the availability of the ROA may also be published
in scientific, technical, or engineering publications. The full text of
any amendments to the ROA shall be published in the Federal Register and
concurrently announced in the ''Commerce Business Daily.''
(55 FR 33315, Aug. 15, 1990)
48 CFR 935.016-5 Content of proposal submissions.
Each ROA shall require that a proposal (whether a new proposal or a
proposal for the continuation of research previously funded by DOE as a
contract) will be submitted by the offeror in the quantities specified
in the ROA to the place designated in the ROA as the place for receipt
of proposals. Each proposal will contain three sections which, at a
minimum, provide the following information:
(a) Section I: Offeror Information:
(1) Name and address of the offeror;
(2) The ROA solicitation number;
(3) The date of submission of the proposal and the offer acceptance
period;
(4) The names and addresses of any other Federal, State, or local
government agency, or any other public or private entity who has in the
past, or is currently, or expects, in the future, to provide funds for
the same or similar research activities of the offeror;
(5) A proposal cover sheet signed by an individual authorized to
contractually obligate the offeror.
(b) Section II: Technical Proposal:
(1) A detailed description of the proposed research, including the
objectives of the research, the methodology and approaches for
accomplishing those objectives, the anticipated results of the research,
and, where appropriate, a schedule depicting key research milestones
with a description of the milestones and the relationship of the
proposed research to the program objectives and evaluation criteria
stated in the ROA. This description should also include:
(i) A listing and a discussion of any previous or on-going research
performed by the offeror in areas related to those contemplated by the
ROA, and
(ii) Where appropriate, a discussion of how the intened results of
the research will achieve the use intended by DOE;
(2) Resumes for the proposed principal investigator(s) or other key
individuals addressing the qualification, experience, and capabilities
of these individuals;
(3) A description of the facilities and other resources of the
offeror which will be used by the offeror in performance of the proposed
research;
(4) A description of any facilities and other non-monetary resources
requested to be furnished by the Government for use by the offeror in
performance of the proposed research; and,
(5) A description of the structure and lines of the authority (both
technical and administrative) of the offeror's organization and the
relation thereto to the proposed research effort.
(c) Section III: Cost Proposal:
(1) A fully executed Standard Form (SF) 1411;
(2) Any supporting cost exhibits as may be required by the ROA.
(55 FR 33316, Aug. 15, 1990)
48 CFR 935.016-6 Receipt and handling of proposals and late proposal
submission.
(a) The cognizant DOE program office, with the concurrence of the
Contracting Officer, shall establish formal administrative procedures
for accountability, control of receipt and distribution, evaluation, and
disposition of proposals received in response to an ROA to insure that
proposal information, in whole or in part, is properly safeguarded from
unauthorized disclosure or use. These administrative procedures shall
be consistent with the policies and procedures set forth in FAR 15.411
and 15.413, and in DEAR 915.413 and subpart 927.70. Where a program
office has established a system for objective merit review of financial
assistance applications pursuant to 10 CFR 600.16, the procedures of
such a system can be adopted by the program office for use under the
ROA, provided that any conflicts, inconsistencies, or ambiguities
between the system for objective merit review and the requirements of
the FAR and the DEAR shall be resolved in favor of the FAR and the DEAR
requirements.
(b) The Senior Program Official for the cognizant program office
shall be responsible for ensuring that the procedures concerning
unauthorized disclosure or use of proposal information are consistently
complied with by the evaluators assigned to the ROA.
(c) Proposals received for evaluation subsequent to the close of the
proposal submission period will be considered in accordance with FAR
15.412. Proposals determined to have been received subsequent to the
close of the proposal submission period may be considered and evaluated
under a succeeding ROA issued by the program office, provided that the
offeror so affirms, in writing, that it desires evaluation of its
proposal under the succeeding ROA, and provides the program office, as
part of its affirmation, any needed updated information relating to its
original proposal.
(d) Proposals may be withdrawn by the offeror at any time prior to
award of a resultant contract by written notice to the cognizant program
office.
(55 FR 33316, Aug. 15, 1990)
48 CFR 935.016-7 Evaluation of proposals.
(a) The Senior Program Official for the cognizant DOE program office
shall, by written delegation, appoint an organization within that
program office to be responsible for the conduct and administration of
the proposal evaluation process. This organization shall:
(1) Serve as the primary point of contact on all matters concerning
the ROA;
(2) Ensure that a confidential evaluation plan(s) based directly upon
the evaluation criteria set forth in the ROA is developed;
(3) Ensure that an initial review of proposals is conducted in
accordance with paragraph (c) of this subsection;
(4) Select the scientific and/or peer reviewers and administer the
evaluation of each proposal;
(5) Ensure that a consolidated report of the evaluation findings for
each proposal and other needed information are prepared and provided for
use as an advisory report to the Selection Official; and
(6) Perform other administrative duties (e.g., conduct debriefings,
notify offerors) as may be necessary to facilitate the evaluation
process.
(b) The evaluation of each proposal shall begin upon its receipt, or
as soon as possible thereafter.
(c) All proposals will undergo an initial review to determine:
(1) The responsiveness and completeness of the proposal to the
requirements of the ROA, including the appropriateness of the research
to the intended uses by DOE, and
(2) The relevance of the proposed effort to the broad areas of
research contemplated by the ROA.
If, after completion of the initial review, a proposal is determined
not to meet the requirements stated in paragraphs (c) (1) and (2) of
this subsection, the offeror shall be promptly notified that its
proposal has been eliminated from any further evaluation under the ROA
and the general basis for such a determination.
(d) Proposals which survive the initial review shall generally be
reviewed by at least three scientific and/or peer reviewers. The
composition of the group may be any mix of scientific and peer
reviewers. To the extent possible, individuals to be used as scientific
or peer reviewers should not be individuals who perform, or are likely
to perform, any of the following activities for any of the offerors or
on behalf of the Government:
(1) Providing substantive technical assistance to the offeror;
(2) Approving/disapproving or having any decision-making role
regarding the proposal;
(3) Serving as the project manager/officer or otherwise monitoring or
evaluating the offeror's contractual performance;
(4) Serving as the Contracting Officer, the Contracting Officer's
Representative, or otherwise monitoring or evaluating the offeror's
performance under the program; or
(5) Auditing the offeror or the contract.
Anyone who has line authority over a person who is ineligible to
serve as a reviewer because of the above limitations is also ineligible
to serve as a reviewer. In instances where the cognizant program office
has established a procedure for the review of financial assistance
applications using a published merit review system (see 10 CFR part
600), the types of review groups allowed by 10 CFR 600.16(d) may be used
for purposes of satisfying the requirements for scientific and/or peer
review under this subpart, subject to any other requirements stated
herein.
(e) Proposals will be evaluated against the criteria set forth in the
ROA to determine such issues as the following:
(1) The overall scientific and technical merit of the proposal
including the merit and value of related research performed by the
offeror under previous or existing contracts or other arrangements;
(2) The appropriateness of the proposed method or approach;
(3) The qualifications, capabilities, experience, and demonstrated
past performance of the offeror, principal investigator, and/or key
personnel;
(4) The adequacy of the offeror's facilities and resources; and,
(5) The realism of the proposed costs.
(f) Proposals received in response to the ROA should not be evaluated
against each other since they are not submitted in accordance with a
common statement of work. Competitive range determinations shall not be
made, and best and final offers shall not be requested.
(g) During the evaluation process, communications with an offeror
should occur only for purposes of clarification of that offeror's
proposal. Communication may be accomplished either in writing or
orally, provided that, in instances where oral communications occur, a
written record of such communication is maintained.
(h) A proposal which provides for the continuation of research
previously funded by DOE as a contract awarded as a result of either a
previously issued ROA or an unsolicited proposal may be evaluated and
considered for selection and award under the instant ROA, provided that:
(1) The proposed research is within the specific areas of research
contemplated by the ROA;
(2) The proposal is received during the open period of the ROA; and
(3) The proposal is fully responsive to the requirements of the ROA.
(i) An unsolicited proposal for new work not specifically submitted
in response to the ROA may be evaluated and considered for selection and
award under the instant ROA, provided that:
(1) The conditions stated in paragraphs (h)(1) and (h)(2) of this
subsection are met; and,
(2) The offeror, after written notification from the Program Office
that the unsolicited proposal falls within the scope of the ROA,
expressly states, in writing, that the unsolicited proposal is now to be
considered a submission under the instant ROA; and,
(3) The offeror is otherwise able to provide, within the open period
of the ROA, any additional information required by the ROA to allow for
an evaluation of that offeror's proposal.
(j) For each proposal, a consolidated written report shall be
prepared and shall include the findings of all reviewers. The report
shall contain sufficient detail to indicate that the proposal was
evaluated fairly and objectively against the evaluation criteria. This
report shall be submitted to the Selection Official as an advisory
report to be used in selecting proposals.
(55 FR 33316, Aug. 15, 1990)
48 CFR 935.016-8 Selection of proposals.
(a) After considering the evaluation findings, the importance of the
proposed research to the program objectives, and funds availability, the
Selection Official shall determine whether a specific proposal warrants
selection for negotiation and award of a contract. The decision of the
Selection Official shall be documented in writing and shall address, as
appropriate, such issues as:
(1) The scientific and technical merit of the proposal in relation to
the ROA evaluation criteria;
(2) The qualifications, capabilities, and experience of the proposed
personnel; technical approach; facilities; and where applicable, cost
participation by the offeror (or any combination of the above);
(3) The importance of the proposed research to the program
objectives;
(4) Which areas of the proposal, whether in whole or in part, have
been selected for funding, and the amount of that funding; and,
(5) Assurances that any other requirements which are imposed by
statute, regulation, or internal directives relating to the specific
research activities and which are properly the responsibility of the
Program Office have been satisfied.
(b) Absent extenuating circumstances, selection decisions regarding
any individual proposal should be made within six (6) months after
receipt of the proposal. Proposals which have been evaluated may be
accumulated to allow for a consolidated selection decision so long as
not more than six (6) months have passed since the receipt of any of the
proposals so accumulated.
(c) The cognizant DOE program official shall notify successful and
unsuccessful offerors of any selection/non-selection decisions. These
notices shall be made in writing promptly after the decision is made,
and shall, at a minimum, state in general terms, the basis for the
determination. In the case of notices to successful offerors, the
notices shall state:
(1) General information regarding the subsequent activities of the
process leading to contract negotiation and award, and the identity of
the awarding contracting activity,
(2) That the proposal has been selected subject to negotiation and
execution of a satisfactory contract,
(3) That DOE assumes no obligation, financial or otherwise, until
such time as a contract is executed, and
(4) That the offeror shall not begin performance of the effort, or
any part thereof, until such time as a contract has been awarded.
Notices to unsuccessful offerors should provide the general basis for
elimination of that offeror's proposal from further competition, and
should state that revisions to the unsuccessful proposal will not be
considered under the instant ROA.
(d) The program office shall conduct any requested debriefings and
document the proceedings in accordance with FAR 15.1003. If deemed
necessary and appropriate, program office personnel may request the
participation of contracting personnel in the debriefing proceedings.
(e) Upon completion of a selection decision, the program office shall
furnish the following information to the awarding Contracting
Activity(ies):
(1) A completed Procurement Request (DOE F 4200.33);
(2) The complete original proposal;
(3) A statement of work representing the effort to be funded and any
reporting requirements relating thereto;
(4) The original selection decision document;
(5) The findings of the evaluation team;
(6) Copies of any correspondence relating to the ROA;
(7) Any recommendations regarding property to be either furnished by
the Government or purchased by the contractor with Government funds as a
direct charge to the contract;
(8) Indicate whether restricted data or other classified information
is likely to be used or developed in performance of the effort, and
specify such classification and security requirement determinations, as
may be appropriate;
(9) A technical evaluation of the proposed costs to determine the
realism of the type and extent of labor and materials proposed;
(10) Any other determinations or approvals that may be required by
law, regulation, or Departmental directives relating to the specific
research activities and which are properly the responsibility of the
Program Office; and
(11) Any additional information that may assist the cognizant
Contracting Activity in the negotiation, award, and administration of
the contract.
(55 FR 33317, Aug. 15, 1990)
48 CFR 935.016-9 Responsibilities of the awarding contracting activity.
Upon receipt of the Procurement Request and the other information
specified in 935.016-8(e), the awarding Contracting Activity shall:
(a) Advise the selected offeror that the Government contemplates
entering into negotiations; the type of contract contemplated to be
awarded; and the estimated award date, scope of the effort, and
performance/delivery schedule;
(b) Send the selected offeror a draft contract, if necessary,
including modifications contemplated in the offeror's statement of work,
and request agreement or identification of any exceptions;
(c) Request the selected offeror to complete and/or update and return
the SF 1411 (with supporting documents), the offeror representations and
certifications, and other appropriate forms, as needed;
(d) Conduct negotiations in accordance with FAR subparts 15.8 and
15.9, and DEAR subparts 915.8 and 915.9, as applicable;
(e) Award a contract with reasonable promptness to the successful
offeror; and,
(f) Comply with FAR subparts 4.6 and 5.3 on contract reporting and
synopses of contract awards, to the extent required by those subparts.
(55 FR 33318, Aug. 15, 1990)
48 CFR 935.070 Contract clauses.
Insert the clause at 952.235-70, Key Personnel, in Research and
Development contracts under which performance is largely dependent on
the expertise of specific key personnel. To prevent administrative
burden, the list should be as limited as possible.
48 CFR 935.070 PART 936 -- CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
48 CFR 935.070 Part 936
48 CFR 935.070 Subpart 936.2 -- Special Aspects of Contracting for
Construction
Sec.
936.202 Specifications.
48 CFR 935.070 Subpart 936.6 -- Architect-Engineer Services
936.601 Policy.
936.602-2 Evalution boards.
936.602-3 Evaluation board functions.
936.602-4 Selection authority.
936.602-70 DOE selection criteria.
936.603 Collecting data on and appraising firm's qualifications.
936.605 Government cost estimate for architect-engineer work.
936.606 Negotiations.
936.609-3 Work oversight in architect-engineer contracts.
48 CFR 935.070 Subpart 936.7 -- Standard Forms for Contracting
Architect-Engineer Services and Dismantling, Demolition or Removal of
Improvements
936.702 Forms for use in contracting for architect-engineer services.
48 CFR 935.070 Subpart 936.70 -- Rental of Construction Equipment
936.7000 Scope of subpart.
936.7001 General policy.
936.7002 Rental of contractor-owned equipment.
936.7002-1 Rental agreements.
936.7002-2 Rental period.
936.7002-3 Rental rates.
936.7002-4 Application of rates.
936.7002-5 Insurance.
936.7002-6 Rental limitation.
936.7002-7 Record of negotiation.
936.7002-8 Responsibility for repair and replacement.
936.7002-9 Equipment condition and inspection.
936.7003 Rental of third-party-owned equipment.
936.7003-1 Rental agreement.
936.7003-2 Rental rates.
936.7003-3 Insurance.
936.7003-4 Option to purchase equipment.
48 CFR 935.070 Subpart 936.71 -- Inspection and Acceptance
936.7100 Scope of subpart.
936.7101 Construction contracts.
48 CFR 935.070 Subpart 936.72 -- Acquisition of Special Equipment
936.7200 Scope of subpart.
936.7201 Definition.
936.7202 Description of acquisition services.
48 CFR 935.070 Subpart 936.73 -- Outline for Equipment Rental Agreement
936.7300 Scope of subpart.
936.7301 Outline of agreement for rental of contractor-owned
construction equipment.
936.7302 Outline of agreement for rental of third-party owned
construction equipment.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 12016, Mar. 28, 1984, unless otherwise noted.
48 CFR 935.070 Subpart 936.2 -- Special Aspects of Contracting for Construction
48 CFR 936.202 Specifications.
(a) Construction specifications shall allow the use of concrete which
contains fly ash as an optional or alternate material in accordance with
910.004 unless a determination is made that its use is technically
unacceptable.
(b) The list of excepted supplies appearing at FAR 25.108 shall be
noted in the specifications.
(c) To support all invitations for bids, plans and specifications
will be available on request to all prospective bidders, including
general contractors, subcontractors, and material and equipment
suppliers. Where the cost of reproduction is $10 or more, the charge
shall be a minimum of $10 and subject to a maximum of $500, depending
upon the size of the project and the number of drawings and the volume
of specifications involved. Where the cost of reproduction is less than
$10, the contracting officer has authority to make distribution at cost
of reproduction, or free of charge, as a particular situation dictates.
(d) No refund for the return of plans and specifications will be made
except when the invitation is canceled. Under such circumstances,
refund of payments will be made upon return of the plans and
specifications in good condition to the issuing office.
(e) Plans and specifications will be issued without charge to such
organizations as The Associated General Contractors of America, American
Road Builders' Association, Dodge Reports, Blue Reports, Brown's
Letters, Inc., builders and contractors exchanges in the locality in
which the project is to be constructed, and others that maintain public
plan display rooms.
(f) Payments received for plans and specifications shall be handled
in accordance with the regulations prescribed by the General Accounting
Office in sections 3020-10 and 3030 of Title 7 of GAO Manual for
Guidance of Federal Agencies.
(g) If the contracting officer desires to have the architect-engineer
or construction manager handle the furnishing of plans and
specifications and payments therefor, the invitations for bids should so
state, and the architect-engineer or construction management contract
shall provide the manner in which the receipts are to be handled,
generally as a credit to the contract.
(h) No charge will be made to original receivers of plans and
specifications for revised sheets of drawings and revised pages of
specifications which are issued by amendments to invitations.
(i) Plans and specifications may be issued in complete sets only, or
in complete sets and parts of sets, as the Head of the Contracting
Activity determines to be best. If less than complete sets of plans and
specifications are issued, the distribution should be based on an
applicant's request for specific pages and drawing sheets.
(j) When a non-refundable fee is to be charged, a provision
substantially the same as 952.236-72 shall be included in the
solicitation.
48 CFR 936.202 Subpart 936.6 -- Architect-Engineer Services
48 CFR 936.601 Policy.
To ensure the broadest publicity concerning DOE's interest in
obtaining architect-engineer services, a notice of intention to contract
for architect-engineer services shall be prepared and published for each
acquisition of architect-engineer services, in accordance with the
requirements of FAR 5.205(c) and 5.207. The submissions requested and
received as part of the architect-engineer selection process differ in
substance from proposals received for other types of acquisition.
Consequently, the policies and procedures contained in FAR 15.412
concerning the consideration of the late responses are not applicable to
proposals submitted under the provisions of this Subpart 936.6.
(49 FR 12016, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 936.602-2 Evaluation boards.
(a) Architect-engineer evaluation boards shall be used for the
selection of professional architect-engineer services when the estimated
cost of the contract is $500,000 or more. Except as provided by this
subpart, the use of architect-engineer evaluation boards shall be
governed by the general policies and procedures contained in FAR 36.6
and the policies concerning the selection of such contractors by board
process contained in internal DOE Directives. These policies and
procedures are also applicable to the selection of architect-engineers
for awards of less than $500,000. However, less formal procedures and
practices may be followed, depending upon the circumstances in each
particular selection, at the discretion of the selecting official. The
Source Selection Official, as designated in 915.612, shall establish an
architect-engineer evaluation board and select the contractor.
(49 FR 12016, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 936.602-3 Evaluation board functions.
(a)(1) Firms indicate their general interest in providing services by
annual submittal of Standard Form 254; and indicate specific interest
in providing services for a particular project, in response to the
public announcement, by submittal of Standard Form 255 (and Standard
Form 254 if not previously submitted). Supplemental information may be
solicited as a means of initiating the discussion phase of the
architect-engineer selection process. This may be particularly
appropriate for the larger or more complex projects where sufficient
qualification and performance data are not available from the Standard
Forms 254 and 255, and additional information beyond that already
furnished is needed to apply the selection criteria and evaluate and
rank the firms. Firms should not be requested to furnish the same
information previously submitted on Standard Forms 254 and 255, nor
should they be requested to submit preliminary designs, plans and
drawings, except in appropriate circumstances involving design
competitions.
(2) After the notice of intention to contract for architect-engineer
services has been published and the date for submission of the standard
forms has passed, the evaluation board and/or the selecting official
shall review and evaluate the Standard Form 254 and the Standard Form
255, where applicable, submitted in response to the public announcement.
Consideration should be given to requesting submission of a Standard
Form 255, by qualified firms which fail to respond to the public
announcement to assure adequate competition. Based on this evaluation,
no less than three firms shall be selected for the purpose of holding
discussions. It is not necessary to hold discussions with any firm that
fails to submit a Standard Form 255, where required.
(c)(1) Normally, only those firms which are compatible with the size
and complexity of the job requirements should be considered for
discussions; that is, for a small, relatively simple job, firms whose
resources and qualifications are far in excess of the job requirements
should not be considered unless no satisfactory response is received
from any other compatible highly qualified firm, and where size and
simplicity of the project permit, consideration should be limited to the
geographic area of the project.
(2) Every opportunity and encouragement shall be given to small
business, small disadvantaged businesses and women-owned small business
concerns firms. Toward this end, groups that propose to form a joint
venture or engage the services of small consulting firms for portions of
the effort shall be given full consideration by the evaluation board and
the selection official of their combined qualifications.
(3) After three or more firms have been selected in accordance with
936.602-70, discussions shall be held with these firms regarding
anticipated concepts and the relative utility of alternative methods of
approach for furnishing the required services. These discussions may be
used to obtain additional qualification, performance, and management
data, and other information needed to properly apply the evaluation
criteria and evaluate the firms under consideration.
(4) Requests for supplemental information shall not request firms to
submit price proposals. Such requests can be used only to obtain
information that will enable DOE to select the best qualified
contractor. When a request for supplemental information is made, some
wording should be included to identify it with the discussion phase of
the selection process similar to the following: ''As a result of our
evaluation of material on file with this office and the SFs 254 and/or
255 submitted in response to Public announcement ---- , we have selected
your firm for further consideration for selection and award of a
contract to perform the architect-engineer services which are described
below. The principal purpose of this request is to obtain additional
specific qualification and performance data concerning your firm.''
(5) The term ''discussions'' includes telephone conversations,
exchange of correspondence, or interviews. The term ''interview'' as
used in FAR 5.207(d), Note 63, means ''discussions'' as defined above.
(d) When the evaluation board completes its functions, it shall
prepare a report, including its recommendations, and submit it along
with the solicitation, selection criteria, weights, and other
information and documents, as may be requested, to the Source Selection
Official through the Procurement Executive, or designee, when the Source
Selection Official is in Headquarters. The Procurement Executive, or
designee, shall arrange for appropriate Headquarters review of the
report and prepare an action memorandum to the Source Selection Official
for consideration in making the selection.
(e) The evaluation board's duties will ordinarily include preparation
of the public announcement (936.601) and development of evaluation
criteria, based on architect-engineer services requirements established
by the appropriate DOE program and staff organization; development of
evaluation criteria weighting; review and evaluation of Standard Forms
254 and 255; review and evaluation of information from other sources,
such as appraisals of performance on previous contracts awarded to the
architect-engineer firm; development of additional information
requirements and conduct of discussions with firms selected for further
consideration; determination of ranking of the firms evaluated;
preparation of the evaluation board report and presentation of the
board's findings, or recommendations, to the selecting official.
(f) The public announcement (see 936.601) covering the requirement
for architect-engineer services, criteria and relative weightings, as
developed by the evaluation board, shall be submitted to the Procurement
Executive or designee, for appropriate review and comment prior to
issuance of the announcement, where it is a Headquarters' selection or
requires Headquarters' review and approval of the contract action.
Commerce Business Daily announcements shall be prepared in accordance
with FAR Subpart 5.2.
(49 FR 12016, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 936.602-4 Selection authority.
(b) Upon completion of discussions and evaluation of the firms that
were selected for discussions, the board shall recommend to the
selecting official, in order of preference, based upon the criteria in
936.602-70 and any special criteria included in the public announcement,
no less than three firms deemed to be the most highly qualified to
provide the services required. The Standard Form 255 submitted by firms
with which written or oral discussions were held should be retained in
selection file; all other Standard Forms 254 may be discarded 90 days
after award. The selecting official shall then select the firm
determined to be most highly qualified. Should the firm selected be
other than that ranked highest in qualifications by the evaluation
board, the selecting official shall provide complete documentation of
his decision which shall become part of the contract file.
48 CFR 936.602-70 DOE selection criteria.
Contracting officers or architect-engineer evaluation boards shall
apply the evaluation criteria contained in this subsection, as
appropriate, and any special criteria developed for individual
selections. When special and additional criteria are to be used, they
shall be set forth in the public announcement required by 936.601, and a
written justification for their use shall be placed in the DOE file
maintained for the project.
(a) General qualifications, including:
(1) Reputation and standing of the firm and its principal members;
(2) Experience and technical competence of the firm in comparable
work;
(3) Past record in performing work for DOE, other Government
agencies, and private industry, including projects or contracts
implemented with no overruns; performance from the standpoint of cost
including cost overruns (last 5 years); the nature, extent, and
effectiveness of contractor's cost reduction program; quality of work;
and ability to meet schedules including schedule overruns (last 5 years)
(where applicable);
(4) The volume of past and present workloads;
(5) Interest of company management in the project and expected
participation and contribution of top officials;
(6) Adequacy of central or branch office facilities for the proposed
work, including facilities for any special services that may be
required;
(7) Geographic location of the home office and familiarity with the
locality in which the project is located:
(b) Personnel and organizations.
(1) Specific experience and qualifications of personnel proposed for
assignment to the project, including, as required for various phases of
the work:
(i) Technical skills and abilities in planning, organizing,
executing, and controlling;
(ii) Abilities in overall project coordination and management; and
(iii) Experience in working together as a team;
(2) Proposed project organization, delegations of responsibility, and
assignments of authority;
(3) Availability of additional competent, regular employees for
support of the project, and the depth and size of the organization so
that any necessary expansion or acceleration could be handled
adequately;
(4) Experience and qualifications of proposed consultants and
subcontractors; and
(5) Ability to assign adequate qualified personnel from the proposed
organization (firms own organization, joint-venture organizations,
consulting firms etc.) including key personnel and a competent
supervising representative.
(c) Additional (or special) criteria developed for the specific
project shall be considered and evaluated as may be appropriate.
48 CFR 936.603 Collecting of data on and appraising firms'
qualifications.
(a) Establishing offices. DOE offices that regularly acquire
architect-engineer services shall collect and maintain current
qualifications and performance data files on architect-engineer firms,
including information on their past experience on various types of
construction projects. Normally, Standard Form 254, Architect-Engineer
and Related Services Questionnaire, shall be used for this purpose.
Information from other sources, such as appraisals of performance of
previous projects awarded to the firm, may also be included in the
files.
48 CFR 936.605 Government cost estimate for architect-engineer work.
(a) Prior to the initiation of negotiations, an independent
Government estimate of the cost of the required architect-engineer
services will be prepared based on a detailed analysis of the costs
expected to be generated by the work. Consideration shall be given to
the estimated value of the services to be rendered, and to the scope,
complexity, and nature of the project. The independent Government
estimate shall be revised as required during negotiations to reflect
changes in or clarification of the scope of the work to be performed by
the architect-engineer. On construction projects, a fee estimate based
on the application of percentage factors to project cost estimates of
the various segments of the work involved may be developed for
comparison purposes, but such a cost estimate shall not be used as a
substitute for the independent Government estimate.
(b) The Government estimate shall include the following information:
(1) A sufficiently detailed description and cost estimate of the work
to permit an evaluation of services to be performed by the various
participants and the degree of complexity of its principal components.
When A-E contracts are fixed price, the information as to the work
should be in more detail and on a firmer basis, particularly as to
estimated costs, than for a CPFF contract. The estimated cost of the
component items (including the cost of material and equipment furnished
by DOE) and their descriptions, insofar as available, should be included
as follows:
(i) Major buildings and other structures for which complete designs
and specifications are to be prepared by the architect-engineer,
including number and cost of each type, with as much information as is
available (within security requirements) as to the functional
requirements for such structures;
(ii) Major utilities, including classifications and costs, in as much
detail as practicable;
(iii) Special equipment to be procured by a DOE operating contractor,
construction contractor, or architect-engineer, or furnished by DOE;
(iv) Special equipment to be designated by the architect-engineer;
and
(v) Special equipment to be installed by the construction contractor.
(2) A statement should be provided indicating total estimated cost of
the work exclusive of the construction contractor's fee, and to the
extent available, identifying labor, material, and indirect costs, and
any amount included for contingencies; estimated cost of
architect-engineer services; and the estimated time of completion of
design or construction work with an explanation of the basis for
establishing the completion schedules.
(c) A written statement should be prepared which gives the extent to
which the services of the architect-engineer include any of the services
set forth below.
(1) Conceptual Design -- Provide preliminary studies to develop a
project scope that satisfies a program need, statutory requirements;
validate feasibility and attainable performance levels; identify and
quantify risks: Develop a reliable budget estimate and a realistic
performance schedule; develop project criteria and design parameters
for all engineering disciplines, identify applicable codes and
standards, quality assurance requirements, environmental studies,
materials of construction, space allowances, energy conservation
features, health, safety, safeguards, and security requirements and any
other features or requirements necessary to describe the project.
(2) Title I -- Provide the necessary topographical and other field
surveys, test boring, and other subsurface investigation; prepare
preliminary studies, sketches, layout plans, and outline specifications;
and prepare reports including estimates of cost of the proposed project
and of all structures, utilities, and appurtenances thereto.
(3) Title II -- Provide complete design of the work including
preparation of all required preliminary and final working drawings,
specifications, estimates, and contract documents; and assist in
securing, analyzing, and evaluating bids or proposals for construction;
and consult with DOE on all questions arising in connection with the
services performed by the architect-engineer.
(4) Title III -- Provide complete architect-engineer supervision and
inspection of construction under the direction of a responsible
representative, check shop drawings, and furnish drawings to show
construction has actually been accomplished.
(5) Process design -- Process design normally requires the
preparation of flow diagrams showing each operating step to perform the
process; material and heat balances where required; determination of
the nature, capacity and design characteristics of production equipment;
the general design of connecting flow lines to handle the calculated
rates of product and by-product flow; and schematic layouts.
(6) Procurement of materials and equipment (describe fully) if
specified for accomplishment in conjunction with Title I, II, and III
services and approved by the Procurement Executive.
(7) Other special services (describe fully) if specified for
accomplishment in conjunction with Title I, II, and III services and
approved by the Procurement Executive.
(49 FR 12016, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 936.606 Negotiations.
(a) A fixed-price contract for architect-engineer services should be
used wherever it is practicable to compile, in advance of the
preparation of plans and specifications, adequate information
specifically describing the character and extent of services required.
When there is insufficient scope information available to permit
contracting for complete services (Title I, II, and III) on a
fixed-price basis, and when it may be to the advantage of the Government
to do so, appropriate consideration should be given to contracting only
for a study contract or for the preliminary engineering (Title I), on
either a reimbursable or fixed-price basis, in order to permit entering
into a fixed-price contract for the remaining portion of
architect-engineer service (Title II and III), based upon information
developed in the first phase.
(b) The contracting officer shall request the selected
architect-engineer firm to submit its price proposal with supporting
cost or pricing data in accordance with FAR 15.804. Revisions of the
price and supporting cost or pricing data may be made as required during
negotiations to reflect changes in or clarification of the scope of work
to be performed by the architect-engineer or findings derived from
preaward audits conducted pursuant to FAR 15.805-5.
(f) The contracting officer shall negotiate a price considered fair
and reasonable based on a comparative study of the independent
Government estimate and the architect-engineer's proposal. Significant
differences between elements of the two figures and between the overall
figures shall be discussed and the contracting officer shall ascertain
the reasons therefor. Under the authority of section 602(d) (13) and
(20) of the Federal Property and Administrative Services Act of 1949 (40
U.S.C. 474) as amended, contracts for architect-engineer services for
former AEC functions and those of BPA now being performed by DOE shall
not be limited to the six percentum fee restriction in section 304 of
the Act, 41 U.S.C. 245(b).
(g) Promptly at the conclusion of each negotiation, a memorandum
setting forth the principal elements of the negotiation shall be
prepared in accordance with the requirements of FAR 15.808, for use by
the reviewing authorities and for inclusion in the contract file. The
memorandum shall contain sufficient detail to reflect the significant
considerations controlling the establishment of the price and other
terms of the contract.
48 CFR 936.609-3 Work oversight in architect-engineer contracts.
In addition to the clause at FAR 52.236-24, the contracting officer
shall insert the clause at 952.236-71 in architect-engineer contracts.
48 CFR 936.609-3 Subpart 936.7 -- Standard Forms for Contracting Architect-Engineer Services and Dismantling, Demolitation or Removal of Improvements
48 CFR 936.702 Forms for use in contracting for architect-engineer
services.
(a) The contracting officer shall also include the additional terms
at 952.236-70 in Standard Form 252 item 6.
48 CFR 936.702 Subpart 936.70 -- Rental of Construction Equipment
48 CFR 936.7000 Scope of subpart.
This subpart sets forth general policy and instructions which shall
be applied to rental of construction equipment for use by DOE
contractors with cost-reimbursement type contracts.
48 CFR 936.7001 General policy.
(a) It is the policy of the DOE to use presently owned DOE
construction equipment to the fullest extent. Careful investigation
shall be made of the equipment available, not only at the field office
concerned, but at other field offices, to determine whether such
equipment can be economically utilized on the job. The Procurement
Executive or designee, can assist in the investigation of excess
equipment available in other offices.
(b) It is the policy of the DOE to rent construction equipment, where
available, rather than purchase it, unless in the case of
third-party-owned equipment, the contracting activity determines that
accrued rentals on a particular item of equipment will approximate the
cost of ownership of it except, however, that individual items of
construction equipment having an original cost of less than $1,000
ordinarily should be purchased and not rented. Where it is clearly to
the advantage of the Government, items having a cost of less than $1,000
may be rented with the approval of the Head of the Contracting Activity.
Whenever it is practical, cost and other factors considered,
Contractor-owned equipment shall be rented in preference to renting
third-party-owned equipment.
(c) It is the policy of the DOE to pay rental for construction
equipment at rates not higher than those prevailing in the locality,
except under unusual circumstances, and at as low a rate as is
consistent with securing modern equipment in good operating condition.
Costs of repair, job interruption due to poor equipment, transportation
and in-transit rental may well offset any apparent savings in rental
rates. Rental paid shall be subject to any Government price ceiling
regulations that may be in effect.
936.7002 Rental of contractor-owned equipment.
48 CFR 936.7002-1 Rental agreements.
The terms and conditions governing rental by DOE of construction
equipment from a cost-type construction contractor are set forth in
936.7301. Outline of agreement for rental of contractor-owned
construction equipment. This form of agreement is designed for use as
an appendix to a DOE cost-type construction contract. It may be
modified for rental of equipment under other contractual arrangements
and it may be modified for use as a separate contract or as an
attachment to a subcontract. Some of the aspects of this agreement to
which particular attention should be given are set forth in 936.7002-2
through 936.7002-9.
48 CFR 936.7002-2 Rental period.
The base rental period shall extend from the time the equipment is
accepted at the job site until the contractor is notified in writing by
DOE's representative that the equipment is no longer required. Subject
to applicable limitations covered in the rental agreement form, the
contractor shall be paid rental during the in-transit time and during
the time required for equipment repair or replacement prior to return to
the contractor.
48 CFR 936.7002-3 Rental rates.
(a) Rates for rental of contractor-owned equipment shall be fair and
equitable. The rental rates contemplate that the DOE will pay incoming
and outgoing transportations costs and rental during in-transit time for
both inbound and outbound transportation of equipment; however, terms
more favorable to DOE may be negotiated where appropriate. The rental
rates to be paid for the use of contractor-owned equipment under normal
conditions should not exceed 65 percent of the rates quoted in the
latest edition of the Associated Equipment Distributor's (A.E.D.)
''Compilation of Average Rental Rates for Construction Equipment.''
However, Heads of Contracting Activities may approve rates in excess of
65 percent of the current A.E.D. schedule when local conditions require
higher rates. When it becomes necessary as a general practice to exceed
65 percent of the current A.E.D. schedule, Heads of the Contracting
Activities shall be advised.
(b) For items of equipment that are not covered by the A.E.D.
schedule, use the latest edition of ''Contractors' Equipment Ownership
Expense'' document published by the Associated General Contractors of
America, Inc., and information on prevailing local rates for developing
rates that would be consistent with the 35 percent reduction of the
A.E.D. rates (i.e., taking into consideration the expenses paid by the
Government under the rental agreement).
(49 FR 12016, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 936.7002-4 Application of rates.
(a) Rental rates shall be based upon one shift of 8 hours per day, 40
hours per week, or 176 hours per month of a 30-consecutive-day period.
(b) The monthly rental rate and its pro-rata share shall apply to all
rental periods of 1 month or more. The weekly rate and its pro-rata
shall apply to all rental periods of 1 week or more up to 1 month. The
daily rate and its pro-rata shall apply to all rental periods up to 1
week.
(c) Inasmuch as there are certain elements of cost to an equipment
owner which do not change even though the equipment is used on more than
one shift per day, it is believed equitable to pay a lower rental rate
during a second and third shift than would be paid during a single
shift. Therefore, the rental agreement form provides for payments for
overtime at a rate equal to one-half the rate for the first shift.
48 CFR 936.7002-5 Insurance.
(a) Generally, rental rates should include the cost of insurance or
self-insurance covering loss of or damage to the equipment during rental
periods. The rental agreement for contractor-owned equipment is so
worded.
(b) However, if the contracting officer determines that it is not
practical to include the cost of such insurance in the rental rates,
paragraphs 3(d) and 7(a) shall be amended as indicated in the applicable
notes following these paragraphs in 936.7301.
48 CFR 936.7002-6 Rental limitation.
The rental agreement form provides that when the total amount of
rental paid to the contractor for any one unit of equipment equals 75
percent of the mutually agreed value of that unit, as set forth in the
initial inspection report, the equipment is to remain available for the
work under the construction contract as long as it will be required
without any further rental payments to the contractor. The rental
ceiling of 75 percent of the agreed-upon value of the equipment applies
to all rental paid, including rental paid during in-transit time to and
from the site of the work and down time from any operating repairs or
restoring of the equipment after it is no longer needed at the site.
The purpose of the provision is to prevent the Government from paying
rental in excess of the contractor's investment, and is included in lieu
of an ''option to purchase'' clause. Once a particular piece of
equipment has been released, the contractor will be required to return
it to the job under the original rental period.
48 CFR 936.7002-7 Record of negotiation.
A record of negotiation shall set forth the information used to
determine the reasonableness of the rental rates, including a breakdown
of the contractor's equipment ownership expense, similar to that
itemized in the Associated General Contractors of America's document,
''Contractors' Equipment Ownership Expense.''
48 CFR 936.7002-8 Responsibility for repair and replacement.
The rental agreement describes the responsibilities of the parties
with respect to maintenance and repair necessary to the operation of the
rented equipment, or replacement of such equipment. The DOE's
responsibility includes repairs resulting from normal wear and tear,
provided they were necessary in order to continue the equipment in
service. However, when the equipment is no longer required on the job,
the extent of the DOE's obligation is only to return the equipment to
the contractor in as good operating condition as when received, less
wear and tear.
48 CFR 936.7002-9 Equipment condition and inspection.
(a) Construction equipment shall be given a rigid and detailed
inspection by representatives of the DOE and, at the contractor's
option, by representatives of the contractor, before its shipment and
acceptance or use on the job. Equipment shall be inspected under actual
workloads insofar as practicable. In cases where it is not practical to
inspect equipment prior to its shipment to the job site, the contractor
should be informed of the extent of inspection and the expected
condition of his equipment in the event the equipment does not meet
required standards. The transportation, rental, or any other expenses
shall be paid by DOE unless, at contractor's expense, the equipment is
repaired to acceptable standards in a reasonable length of time. A
similar inspection shall be made immediately prior to scheduled return
shipment of an item of equipment.
(b) A detailed inspection report shall be signed by each
representative inspecting. The initial inspection report shall be used
at the time of release as a basis of determining the repairs necessary
to place the equipment in as good operating conditions as when accepted
less normal wear and tear. After necessary repairs are completed, a
final inspection report shall be completed by a representative of the
DOE and, at his option, the contractor.
(c) If initial detailed inspection discloses that the condition of
the equipment is doubtful, arrangements should be made with the
contractor for a trial period of operation to prove the equipment, with
provisions that if equipment is found unacceptable in the trial period,
no rental, transportation, or other expenses will be due the contractor.
Repairs to equipment which fails in service due to defects not
reasonably ascertainable on initial inspection shall be at the
contractor's expense.
(49 FR 12016, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
936.7003 Rental of third-party-owned equipment
48 CFR 936.7003-1 Rental agreement.
The terms and conditions governing rental of construction equipment
from a third party which does not operate the equipment are in
accordance with 936.7002-2, 936.7002-4, 936.7002-8, and 936.7002-9, and
the following subsections of this part, and are set forth in 936.7302,
Outline of agreement for rental of third-party-owned construction
equipment. Heads of Contracting Activities shall assure that these
terms and conditions are used by DOE cost-reimbursement construction
contractors and that similar terms and conditions are used by other DOE
cost-reimbursement contractors or subcontractors in renting construction
equipment from a third party. These terms and conditions may be
suitably modified to provide for rental of equipment with operators.
Some of the aspects of this agreement to which particular attention
should be given are set forth in the next three subparts.
48 CFR 936.7003-2 Rental rates.
Third-party equipment shall be rented on the basis of competitive
bids, rental rates, transportation costs, and other factors being
considered. The rental specifications shall be based on the
circumstances of a particular case, including the length of rental
period, the availability of equipment in certain localities, and the
work requirements.
48 CFR 936.7003-3 Insurance.
The provisions of 936.7002-5(a) also apply to the rental of
construction equipment from a third party. However, if the contracting
officer determines that the rental rates are not to include the cost of
insurance or self-insurance covering loss of or damage to the equipment,
the rental agreement shall reflect this condition.
48 CFR 936.7003-4 Option to purchase equipment.
When accrued rentals on a particular item of equipment will likely
approximate the appraised value of equipment and a decision has been
made not to purchase in accordance with 936.7001(b), consideration shall
be given to including in the rental agreement, an option to purchase the
equipment.
48 CFR 936.7003-4 Subpart 936.71 -- Inspection and Acceptance
48 CFR 936.7100 Scope of subpart.
This subpart implements and supplements FAR Part 36 by prescribing
the policies and requirements for inspection and acceptance under
construction contracts.
48 CFR 936.7101 Construction contracts.
(a) Inspection services may be performed by the architect-engineer
responsible for the design. Inspection services may not be procured
from a construction contractor with respect to its own work.
(b) When one contractor is to inspect the work of another, the
inspection contractor will be given written instructions defining its
responsibilities and stating that it is not authorized to modify the
terms and conditions of the contract, to direct additional work, to
waive any requirements of the contract, or to settle any claim or
dispute. Copies of the instructions will be given to the contractor who
is to be inspected, with a request to acknowledge receipt on a copy to
be returned to the contracting officer. In this manner, both
contractors are on express notice of the authority and limitations of
the authority of the inspecting contractor.
48 CFR 936.7101 Subpart 936.72 -- Acquisition of Special Equipment
48 CFR 936.7200 Scope of subpart.
Contracts for acquisition services only are rarely used. Acquisition
of special equipment is generally contracted for in conjunction with
CPFF contracts for construction, operating, or architect-engineer
services. In special situations, acquisition of other equipment and
construction materials is also contracted for in conjunction with CPFF
contracts for operating or architect-engineer services. The description
of acquisition services in paragraph (936.7202) of this section is
applicable to all of these cases.
48 CFR 936.7201 Definition.
Special equipment is equipment for which the purchase price is of
such a magnitude compared to the cost of installation as to improperly
reflect the amount of technical direction and management effort required
of the contractor. Generally, special equipment is considered to be a
capital-asset-type of equipment (typically, equipment costing more than
$1,000 and having a service life of more than two years) for which the
cost of installation and handling (including unloading, hauling and
warehousing) is 5 percent or less, of the purchase price of the
equipment. However, the determination of specific items of equipment in
this category requires application of judgment and careful study of the
circumstances involved for each project. This category of equipment
would generally include items such as:
(a) Major items of prefabricated process or research equipment.
(b) Major items of preassembled equipment such as packaged boilers,
generators, machine tools, and larger electrical equipment. In some
cases it would also include special apparatus or devices such as reactor
vessels and reactor charging machines.
48 CFR 936.7202 Description of acquisition services.
(a) Acquisition as herein considered is an activity involving
judgment, knowledge, and experience relating to the manufacture, use, or
application of the article or process to be purchased. It may include
the development or location of sources of supply, and generally includes
preparation of bidding documents, solicitation of proposals, analysis of
proposals received (including, where necessary, technical and sometimes
complicated evaluation of performance characteristics of the equipment
of different manufacturers), inspection at manufacturer's plant as
distinguished from inspection supplied under Title III services of an
architect-engineer contract, and evaluation of production capacities to
meet required delivery. Acquisition includes necessary coordination
with participating contractors and DOE for especially designed
equipment, general and specific expediting, and special assistance to
the manufacturers in helping to locate scarce materials and machine
tools and in supporting allocation for critical materials where this is
a necessary function. Acquisition normally includes inspection and
receiving upon delivery at the site (this may be a joint activity where
the contracting agent is not the constructor) and payment. All on-site
physical activities after delivery, including unloading, warehousing,
hauling, and installation are considered a construction activity and not
acquisition.
(b) Coordination, timing, and technical know-how are important
factors to be considered in the selection of a contracting agent. The
advantages and disadvantages of placing full responsibility in one
contractor for construction and acquisition, or split responsibility
where the acquisition is placed under a contract with architect-engineer
or operating contractor, should be evaluated in the light of the above
factors.
48 CFR 936.7202 Subpart 936.73 -- Outline for Equipment Rental Agreement
48 CFR 936.7300 Scope of subpart.
This subpart contains agreement formats which are suggested for use
where DOE rents construction equipment from a prime cost-type
construction contractor, or third-party-owned equipment. The outline
for rental from the prime contractor is designed for use as an appendix
to the prime cost-type construction contract. The format for use with
third parties is an agreement within itself.
48 CFR 936.7301 Outline of agreement for rental of contractor-owned
construction equipment.
Attached to and made a part of Contract No. ------ .
Contractor: ---------- .
The following provisions shall govern the use and rental of the
Contractor's construction plant and equipment (hereinafter called the
''equipment'') under the contract:
1. Equipment rented. The Contractor agrees to furnish for his own
use in the performance of the contract the equipment itemized in
Schedule 1 (attached to and made part of this agreement). Each item of
the equipment shall be clearly marked with the identification number
assigned to it on Schedule 1. the Contractor and DOE may from time to
time amend Schedule 1 by deleting items or adding items.
2. Payments. As provided in the clause of the contract entitled
''Allowable Cost and Payment,'' the allowable costs of the performance
of the contract shall include:
(a) Rental. Rental of equipment, for rental periods determined in
accordance with paragraph 4 and at the rates set forth in Schedule 1
applied in accordance with paragraph 3.
(b) Transportation. Transportation of equipment in accordance with
paragraph 5.
(c) Repair. Maintenance, repair, and replacement of equipment to the
extent provided in paragraphs 6 and 7.
Payment shall be made in accordance with procedures set forth in the
clause of the contract entitled ''Allowable Cost and Payment.''
3. Application of rates. The rates set forth in Schedule 1 shall be
applied in accordance with the following rules:
(a) Basis of rates. The rates are based upon one shift of 8 hours
per day, 40 hours per week, or 176 hours per month (of 30 consecutive
days).
(b) Apportionment of rates. The monthly rate and its pro-rata share
shall apply to all rental periods of 1 month or more. The weekly rate
and its pro-rata share shall apply to all rental periods of 1 week or
more up to one month. The daily rate and its pro-rata share shall apply
to all rental periods up to 1 week.
(c) Overtime. If the equipment is rented by the day, the rate for
overtime is one-sixteenth ( 1/16) of the daily rate for each hour of use
in any day in excess of 8 hours; if it is rented by the week, the rate
for overtime is one-eightieth ( 1/80) of the weekly rate for each hour
of use in any week in excess of 40 hours; and if it is rented by the
month, the overtime rate is one-three hundred and fifty-second ( 1/352)
of the monthly rate for each hour of use in excess of 176 hours in any
one 30 consecutive day period.
(d) Insurance. Rental rates include the cost of insurance or
self-insurance covering loss of or damage to the equipment during rental
periods, as indicated in Schedule 1 and copy of policy attached. The
Contractor agrees to maintain this insurance coverage for loss of or
damage to the equipment during the entire term of this agreement. The
Contractor shall waive any right of action against the government to the
extent that loss is recovered from insurance applicable to loss, damage
or destruction of leased equipment.
Note: When rental rates do not include the cost of insurance or
self-insurance, substitute the following text for paragraph (d):
''Rental rates do not include any factor representing the cost of
insurance or self-insurance covering loss of or damage to the equipment
during rental periods.''
4. Rental period. The rental period for which rental is payable for
an item of equipment shall consist of a base period, beginning upon the
date stipulated in a written notice from the contracting officer to the
Contractor that DOE has accepted the item of equipment at the job site,
and ending upon the date stipulated in a written notice from the
contracting officer to the Contractor that use of the item of equipment
is terminated, subject to the following additions, deductions, and
conditions:
(a) In-transit time. There shall be added to the base period:
(1) The actual in-transit time of inbound transportation from one
point of shipment to the job site, not exceeding the time required for
such transportation by commercial carrier via the most expeditious
routing available, of any item of equipment subsequently accepted by DOE
and
(2) The actual in-transit time of outbound return transportation from
the job site, to the original point of inbound shipment, or other
destination at equal or less distance from the job site, not exceeding
the time required for such transportation by commercial carrier via the
most expeditious routing available, of any item of equipment whose use
has been terminated by DOE.
(b) Delay due to repairs.
(1) The time required for repair of equipment shall be deducted from
the base period if such repair is necessitated by willful misconduct or
lack of good faith on the part of the Contractor's managerial personnel,
or made necessary by defects not reasonably ascertainable on initial
inspection by DOE.
(2) If an item of equipment has been accepted by DOE, the subsequent
withdrawal by the Contractor of such item from the work for necessary
repairs (due to causes other than those mentioned in the preceding
paragraph) shall not interrupt the running of the base period unless the
contracting officer finds that the Contractor has not exercised due
diligence in effecting the repairs or in returning the item to use, and
in such event the time which the contracting officer finds to have been
excessive shall be deducted from the base period.
(c) Time for repairs on termination. In the event DOE, in accordance
with paragraph 6(c), elects to effect repair or replacement of an item
of equipment prior to scheduled return shipment, the time required for
such repair or replacement shall be added to the base period.
(d) Trial period. If initial inspection by DOE discloses that the
condition of an item of equipment is doubtful, it will not be accepted
by DOE without a trial period of operation to prove such item, upon
terms and conditions agreed upon by the Contractor and DOE. If the
equipment is found unacceptable in the trial period, no rental,
transportation, or other expenses will be due the Contractor.
(e) Rental limitation. When the aggregate of rental paid for an item
of equipment equals 75 percent of its appraised value, as agreed upon by
the Contractor and the contracting officer at or prior to the time of
acceptance by DOE and set forth in the initial inspection report, the
rental period shall cease as to such item for purposes of rental
payment. Such item shall thereafter remain available for use under the
contract without further rental payments but otherwise in accordance
with the terms and conditions of this agreement, until the contractor
receives written notice from the contracting officer that use of the
item is terminated. The limitation of rental to 75 percent of the
agreed value shall apply to the total of all rental due under this
paragraph 4. A failure to agree as to the value of an item of equipment
shall be deemed to be a dispute within the meaning of the article of the
contract entitled ''disputes.''
5. Transportation. Inbound transportation of equipment, f.o.b. cars
from the original point of shipment to the job site, and outbound return
transportation of shipment f.o.b. cars to the original point of shipment
or to another destination selected by the Contractor at equal or less
distance from the job site, shall be at the expense of the Government,
subject to the following conditions:
(a) Limitation on return transportation. The Government shall not
bear any expense for outbound return transportation in excess of the
amount paid for inbound transportation to the job site, except
additional amounts representing or equivalent to increase in freight
rates applicable to the route to the original point of shipment.
(b) Limitation on long distance transportation. Transportation over
a distance in excess of 500 miles shall be subject to the approval of
the contracting officer.
(c) Transportation by other than common carrier. The expense borne
by the Government hereunder for transportation by a method other than
common carrier shall be the actual expense of such transportation as
shown by evidence satisfactory to the contracting officer.
(d) Loading and unloading. Only such costs of loading and unloading
equipment as are incurred at the job site shall be borne by the
Government.
(e) Equipment not in required condition. The Government shall not
bear the expense of transportation of any item of equipment which
arrives at the job in a condition which does not fulfill the
requirements of paragraph 6(a) and which is not placed in the condition
required under paragraph 6(a) by the Contractor at the Contractor's
expense within a reasonable time.
6. Condition of equipment. The following conditions apply.
(a) Condition on delivery. The equipment shall, on delivery at the
job site, be in good operating condition to render efficient,
economical, and continuous service, and shall be equipped with necessary
and required safety devices according to ICC regulations and other
applicable Federal and State laws. Each item of the equipment shall
have been registered by the Contractor at the Contractor's own expense
with all Federal, State, and local authorities requiring registration,
and registration plates or other evidence of registration shall be
displayed in accordance with the requirements of the registering
authority. The cost of subsequent registration shall also be borne by
the Contractor. If any item of equipment on arrival at the job site is
not placed in the condition required by this paragraph within a
reasonable time, the contracting officer may reject the item and require
its removal from the job site, and in that event, the Government shall
not be liable for rental, transportation, or any other expense in
connection with such item.
(b) Condition on the job. Equipment accepted by DOE shall be
maintained by the Contractor in the condition required for its operation
until use of the equipment is terminated by the contracting officer.
Maintenance and repair required to keep accepted equipment in such
condition during such time and replacement (at the agreed value set
forth in the initial inspection report, less depreciation) of accepted
equipment lost or destroyed during such time, shall be at the expense of
the Government unless such maintenance, repair, or replacement is made
necessary by loss or damage covered by any policy of insurance (or
self-insurance), or caused by willful misconduct or lack of good faith
on the part of the Contractor's managerial personnel, or is made
necessary by defects not reasonably ascertainable on initial inspection
of DOE.
(c) Condition on termination. Upon termination by DOE of the use of
any item of equipment, the item shall be returned by DOE to the
Contractor at the job site in as good condition as when received by DOE
(as shown by the initial inspection report) less normal wear and tear,
except for any loss or damage which is due to willful misconduct or lack
of good faith on the part of the Contractor's mangerial personnel, or
defects not reasonably ascertainable on initial inspection by DOE, or
which is covered by any policy of insurance (or self-insurance). If the
inspection report to be made immediately prior to the scheduled return
shipment of an item of equipment discloses the necessity for repairs or
replacement the cost of which is the responsibility of the Government
under this paragraph, DOE may at its election either (A) effect such
repairs or replacements or (B) allow the Contractor the agreed estimated
reasonable cost of such repairs (or the agreed value set forth in the
initial inspection report, less depreciation, if replacement is
required), and a sum in lieu of rental for the time estimated by the
contracting officer to be necessary for such repairs. Failure to agree
as to the estimated reasonable cost of affecting such repairs or
replacement under (C) above, shall be deemed to be a dispute within the
meaning of the article of the contract entitled ''Disputes.''
(d) Inspection. For the purpose of establishing the condition of the
equipment, each item of equipment shall be inspected, tested and
inventoried by representatives of DOE and at the Contractor's option,
together with representatives of the Contractor, prior to its acceptance
by DOE and also immediately prior to scheduled return shipment. The
results of such inspections and tests, and the inventories compiled,
shall be incorporated in reports submitted to the contractor and to the
contracting officer. For any item of equipment which the Contractor has
failed to inspect, test, and inventory, or has failed to report as
provided herein, the Contractor agrees that the report submitted
hereunder by a representative of DOE shall be conclusive evidence of the
condition as of the date of inspection.
(e) Excessive repairs. The contracting officer may deduct from
payments otherwise due the Contractor, any amounts previously allowed
the Contractor under this agreement for repairs made at the Government's
expense which the contracting officer finds to have been in excess of
the requirements of this agreement.
7. Protection of equipment -- steps to be taken in event of loss.
The following apply.
(a) The Contractor shall take all reasonable and necessary
precautions to safeguard and protect the equipment. Any loss of or
damage to the equipment is not reimbursable to the extent that such loss
or damage is required to be covered by insurance under paragraph 3(d) of
this agreement.
Note: When paragraph 3(d) of the agreement provides that rental
rates do not include any factor representing the cost of insurance or
self-insurance covering loss of or damage to the equipment during rental
periods, the following paragraph (a) shall be used
(a) The Contractor shall take all reasonable and necessary
precautions to safeguard and protect the equipment. Any loss or damage
to the equipment will be at the Contractor's risk to the extent that
such loss or damage is covered by any policy of insurance (or
self-insurance).
(b) Upon the happening of any loss or damage which is at the risk of
the Government under this agreement, the Contractor shall immediately
notify the contracting officer of the occasion and extent thereof, shall
at the contracting officer's request effect an assignment and
subrogation in favor of the Government of all the Contractor's rights
and claims (except those against the Government) arising out of any such
loss or damage, shall, if required by the contracting officer, authorize
representatives of the Government to settle or prosecute to final
judgment any such claims, and shall furnish to the Government on request
all reasonable assistance in obtaining recovery.
8. Liquidation of indebtedness. The Contractor warrants full and
complete title and right to possession of all the equipment, subject
only to those liens, encumbrances or claims to title or possession
securing the indebtedness detailed on Schedule 1, Part 2. The
Contractor agrees to apply such portion of the rental payment hereunder
as may be necessary for the prompt discharge of such indebtedness. If
at any time any person holding a lien, encumbrance, or claim against any
item of equipment shall submit to DOE evidence that the Contractor is
not discharging the indebtedness secured thereby in accordance with the
terms under which the indebtedness is payable or dischargeable, DOE
shall have the right upon three day's written notice to the Contractor
to impound such part of the unpaid rental hereunder, as DOE in its sole
discretion deems necessary, until the rights of the Contractor and any
such person are determined and all just and proper claims of such
persons are satisfied, provided, that nothing contained in this
paragraph shall be construed to pay to such person any sum not required
to be paid by the terms under which the indebtedness was incurred or to
pay any sum prior to the time it becomes due.
9. Taxes. Unless otherwise directed by the contracting officer, the
Contractor shall at the Contractor's own expense pay and discharge any
and all taxes levied upon any item of the equipment.
Item No.
Item description (equipment No.; type of equipment; serial No.;
manufacturer; year of model; original point of shipment; etc.)
Description of any insurance coverage for loss or damage to equipment
Item Rental Rates
Attach certified copy of insurance policy.
(Continue, if necessary, on reverse side or on separate sheets.)
The following is a complete and correct statement of the amount of
any and all indebtedness secured by liens or other encumbrances of any
nature, legal or equitable, which are held by any person, firm or
corporation against the equipment, items Nos. 1 through ------ .
(Contractor) ------------ .
By -------------- .
(Title) ------------ .
Item No.
Name and address of present creditor
Present unpaid balance
Amounts and date of future payments
(Continue, if necessary, on the reverse side or on separate sheets.)
(49 FR 12016, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 936.7302 Outline of agreement for rental of third-party-owned
construction equipment.
This agreement, made and entered into this -------- day of ------ ,
19 ---- , by and between ------ ------ (''hereinafter called the
lessor'') and -------- ) (hereinafter called the ''lessee'') Witnesseth:
Whereas, the lessee has entered into a contract, dated ------ ,
(hereinafter called the ''construction contract''), with the United
States of America (hereinafter called the ''Government''), represented
by the U.S. Department of Energy hereinafter called ''DOE''), for the
performance of certain construction work in connection with the
construction at ------ ; and
Whereas, the lessor is the owner of certain construction plant and
equipment (hereinafter called the ''equipment''), listed on the attached
Schedule 1 attached to and made a part of this agreement; and
Whereas, the lessee desires to rent the equipment for use in
performing the construction contract.
Now, therefore, in consideration of the mutual covenants and
conditions herein set forth, it is agreed as follows:
Article I -- Equipment rented. The lessor agrees to furnish for use
by the lessee in the performance of the construction contract the
equipment itemized in Schedule 1 at time specified as follows:
(Each item of equipment shall be clearly marked with the
identification number assigned to it on Schedule 1. The lessor and the
lessee may from time to time amend Schedule 1 by deleting or adding
items.)
Article II -- Payments. Payments shall be made by the lessee to the
lessor at monthly intervals on invoices rendered by the lessor for:
(a) Rental. Rental of equipment, for rental periods determined in
accordance with the article entitled ''Rental Period'' and at the rates
set forth in Schedule 1 applied in accordance with the article entitled
''Application of Rates.''
(b) Transportation. Transportation of equipment in accordance with
the article entitled ''Transportation.''
(c) Repair. Maintenance, repair, and replacement of equipment to the
extent provided in the articles entitled ''Conditions of Equipment'' and
''Protection of Equipment -- Steps to be Taken in Event of Loss.''
Article III -- Application of rates. The rates set forth in Schedule
1 shall be applied in accordance with the following rules:
(a) Basis of rates. Rates are based upon one shift of 8 hours per
day, 40 hours per week, or 176 hours per month (30 consecutive days).
(b) Apportionment of rates. The monthly rate and its pro-rata share
shall apply to all rental periods of 1 month or more. The weekly rate
and its pro-rata share shall apply to all rental periods of 1 week or
more up to 1 month. The daily rate and its pro-rata share shall apply
to all rental periods up to 1 week.
(c) Overtime. If the equipment is rented by the day, the rate for
overtime is one-sixteenth ( 1/16) of the daily rate for each hour of use
in any day in excess of 8 hours; if it is rented by the week, the rate
for overtime is one-eightieth ( 1/80) of the weekly rate for each hour
of use in any week in excess of 40 hours; and if it is rented by the
month, the overtime rate is one-three hundredth and fifty-second (
1/352) of the monthly rate for hour of use in excess of 176 hours in any
one 30-consecutive-day period.
(d) Insurance. Rental rates include the cost of insurance or
self-insurance covering loss of or damage to the equipment during rental
periods as indicated in Schedule 1 and copy of policy attached. The
lessor agrees to maintain this insurance coverage for loss or damage to
the equipment during the entire term of this agreement. The lessor
shall waive any right of action against the contractor or the United
States Government for loss, damage or destruction of the leased
equipment to the extent that the lessor recover from insurance
applicable to loss, damage or destruction of the leased equipment.
Note: When rates do not include the cost of insurance or
self-insurance, substitute the following text for paragraph (d)
Insurance:
''Rental rates do not include any factor representing the cost of
insurance or self-insurance covering loss of or damage to the equipment
during rental periods.''
Article IV -- Rental period. The rental period for which rental is
payable for an item of equipment shall consist of a base period,
beginning upon the date stipulated in a written notice from the lessee
to the lessor that the lessee has accepted the item of equipment at the
job site, and ending upon date stipulated in a written notice from the
lessee to the lessor that use of the item of equipment is terminated,
subject to the following additions, deductions, and conditions.
(a) In-transit time. There shall be added to the base period:
(1) The actual in-transit time of inbound transportation from the
point of shipment to the job site, not exceeding the time required for
such transportation by commercial carrier via the most expeditious
routing available, of any item of equipment subsequently accepted by the
lessee.
(2) The actual in-transit time of outbound return transportation from
the job site to the original point of inbound shipment, or other
destination at equal or less distance from the job site, not exceeding
the time required for such transportation by commerical carrier via the
most expeditious routing available, of any item of equipment whose use
has been terminated by the lessee.
(b) Trial period. If initial inspection by the lessee discloses that
the condition of an item of equipment is doubtful, it will not be
accepted by the lessee without a trial period of operation to prove such
item upon terms and conditions agreed upon by the lessor and the lessee
and approved by DOE. If the equipment is found unacceptable in the
trial period, no rental, transportation, or other expenses will be due
the lessor.
(c) Delay due to repairs.
(1) The time required for repair of equipment shall be deducted from
the base period if such repair is necessitated by willful misconduct or
lack of good faith on part the of the lessor, of an individual, or the
partners or corporate officers of the lessor, or a supervising
representative of the lessor, or made necessary by defects not
reasonably ascertainable on initial inspection by the lessee.
(2) If arrangements are made for the lessor to repair an item of
equipment, the withdrawal of such item from work for necessary repairs
(due to causes other than those mentioned in the preceding paragraph)
subsequent to acceptance of the item by the lessee shall not interrupt
the running of the base period, unless the lessee or DOE finds that due
diligence in effecting the repairs or in returning the item to use has
not been exercised. In the latter event, the time found to have been
excessive shall be deducted from the base period.
(d) Time for repairs on termination. In the event the lessee, in
accordance with the article entitled ''Condition of Equipment,'' elects
to effect repair or replacement of an item of equipment prior to
scheduled return shipment of the item, the time required for such repair
or replacement shall be added to the base period.
Article V -- Transportation. Inbound transportation of equipment to
the job site, f.o.b. cars and return to the original point of shipment
or to another destination selected by the lessor at equal or less
distance from the job site, shall be at the expense of the lessee,
subject to the following conditions:
(a) Limitation on return transportation. The lessee shall not bear
any expense for outbound return transportation in excess of the amount
paid for inbound transportation to the job site, except additional
amounts approved by DOE representing or equivalent to increase in
freight rates applicable to the route to the original point of shipment.
(b) Limitation on long distance transportation. Transportation over
a distance in excess of 500 miles shall be subject to the approval of
the lessee and DOE.
(c) Transportation by other than common carrier. The expense borne
by the lessee hereunder for transportation by a method other than common
carrier shall be the actual expense of such transportation as shown by
evidence satisfactory to the lessee and DOE, but shall in no case exceed
the amount which would be paid for such transportation by a suitable and
available common carrier, unless otherwise authorized by the lessee and
DOE.
(d) Loading and unloading. Only such costs of loading and unloading
equipment as are incurred at the job site shall be borne by the lessee.
(e) Equipment not in required condition. The lessee shall not bear
the expense of transportation of any item of equipment which arrives at
the job site in a condition which does not fulfill the requirements of
the article entitled ''Condition of equipment'' and which is not placed
in the condition required under that article by the lessee at the
lessor's expense within a reasonable time.
Article VI -- Condition of equipment.
(a) Condition on delivery. The equipment shall, on delivery at the
job site, be in good operating condition to render efficient,
economical, and continuous service and shall be equipped with necessary
and required safety devices according to ICC regulations and other
applicable Federal and state laws. Each item of the equipment shall
have been registered by the lessor at the lessor's own expense with all
Federal, State, and local authorities requiring registration, and
registration plates or other evidence of registration shall be displayed
in accordance with the requirements of the registering authority. The
cost of subsequent registration shall also be borne by the lessor. If
any item of equipment on arrival at the job site is not in the condition
required by this paragraph, its use on the work shall not be permitted
unless and until it is placed in the condition required by this
paragraph at the lessor's expense and within a reasonable time. If any
such item is not placed in the condition required by this paragraph
within a reasonable time, the lessee may reject the item and require its
removal from the job site, and in that event, the lessee shall not be
liable for rental, transportation, or any other expense in connection
with such item.
(b) Condition on the job. Maintenance and repair necessary to keep
accepted equipment in the condition required for its operation until use
of the equipment is terminated by the lessee, and replacement (at the
value agreed upon by the lessor and the lessee with the approval of DOE
at or prior to the time of acceptance by the lessee and set forth in the
initial inspection report, less depreciation) of accepted equipment,
lost or destroyed during such time, shall be at the expense of the
lessee. Except, however, such maintenance, repair, or replacement will
not be at the expense of the lessee if it is made necessary by loss or
damage covered by any policy of insurance (or self-insurance), or caused
by willful misconduct or lack of good faith on the part of the lessor,
of an individual, or the partners or corporate officers of the lessor,
of a supervising representative of the lessor, or is made necessary by
defect not reasonably ascertainable on initial inspection by the lessee.
(c) Condition on termination. Upon termination by the lessee of the
use of any item of equipment, the item shall be returned by the lessee
to the lessor at the job site in as good conditions as when received by
the lessee (as shown by the initial inspection report), less normal wear
and tear, except for any loss or damage which is due to willful
misconduct or lack of good faith on the part of the lessor, of an
individual, or the partners or corporate officers of the lessor or a
supervising representative of the lessor, or defects not reasonably
ascertainable on initial inspection by the lessee, or which is covered
by any policy of insurance (or self-insurance). If the inspection
report is to be made immediately prior to the scheduled return shipment
of an item of equipment discloses the necessity for repairs or
replacements, the cost of which is the responsibility of the lessee
under this paragraph, the lessee may, at its election, either (1) effect
such repairs or replacements, or (2) with the approval of DOE, allow the
lessor the agreed estimated reasonable cost of such repairs (or the
agreed value less depreciation, if replacement is required), and a sum
in lieu of rental for the time estimated by the lessee to be necessary
for such repairs.
(d) Inspection. For the purpose of establishing the condition, the
equipment shall be inspected, tested, and inventoried by representatives
of the lessee and, at the lessor's option, together with representatives
of the lessor (and of DOE, if DOE so elects), prior to its acceptance by
the lessee and immediately prior to scheduled return shipment. The
results of such inspections and tests, and the inventories compiled,
shall be incorporated in reports submitted to the lessor and to the
lessee (and to DOE if DOE so requires). For any item of equipment which
the lessor has failed to inspect, test, and inventory, or has failed to
report as provided herein, the lessor agrees that the report submitted
hereunder by a representative of the lessee shall be conclusive evidence
of the condition as the date of inspection.
(e) Excessive repairs. DOE may require the lessee to deduct from
payments otherwise due the lessor any amounts previously allowed the
lessor under this agreement for repairs made at the lessee's expense
which DOE finds to have been in excess of the requirements of this
agreement.
Article VII -- Protection of equipment -- Steps to be taken in event
of loss.
(a) The lessee shall take all reasonable and necessary precautions to
safeguard and protect the equipment. Any loss of or damage to the
equipment will be at the lessor's risk to the extent that such loss or
damage is required to be covered by insurance under Article III(d) of
this agreement.
Note: When Article III(d) of the agreement provides that rental
rates do not include any factor representing the cost of insurance or
self-insurance covering loss of or damage to the equipment during rental
periods, the following paragraph (a) shall be used:
''(a) The lessee shall take all reasonable and necessary precautions
to safeguard and protect the equipment. Any loss of or damage to the
equipment will be at the lessor's risk to the extent that such loss or
damage is covered by any policy of insurance (or self-insurance).''
(b) Upon the happening of any loss or damage which is at the risk of
the lessee under this agreement, the lessee shall immediately notify the
lessor of the occasion and extent thereof, and the lessor shall
thereupon, at the lessee's request, effect an assignment and subrogation
in favor of the lessee or the Government of all the lessor's rights and
claims (except those against the lessee or the Government) arising out
of any such loss or damage, shall, if required by the lessee or the
Government, authorize representatives of the lessee or the Government to
settle or prosecute to final judgment any such claims, and shall furnish
to the lessee or the Government on request all reasonable assistance in
obtaining recovery.
Article VII -- Liquidation of indebtedness. The lessor warrants full
and complete title and right to possession of all the equipment, subject
only to those liens, encumbrances or claims to title or possession
securing the indebtedness detail on Schedule 1, Part 2. The lessor
agrees to apply such portion of the rental payable hereunder as may be
necessary for the prompt discharge of such indebtedness. If at any
time, any person holding a lien, encumbrance, or claim against any item
of the equipment shall submit to the lessee evidence that the lessor is
not discharging the indebetedness secured thereby in accordance with the
terms under which the indebtedness is payable or dischargeable, the
lessee shall have the right upon three day's written notice to the
lessor to impound such part of the unpaid rental hereunder as the
lessee, with the approval of DOE, deems necessary until the rights of
the lessor and any such person are determined and all just and proper
claims of such person are satisfied, provided that nothing contained in
this paragraph shall be construed to require the lessor to pay to such
person any sum not required to be paid by the terms under which the
indebtedness was incurred or to pay any sum prior to the time it becomes
due.
Article IX -- Taxes. Unless otherwise directed by DOE, the lessor
shall at the lessor's own expense pay and discharge any and all taxes
levied upon any item of equipment.
Article X -- Definition. As used herein the term ''DOE'' means the
U.S. Department of Energy or any duly authorized representative thereof,
including the contracting officer under the construction contract.
In witness, thereof, the lessor and the lessee have executed this
agreement as of the day and year above written.
(Lessor)
By
(Title)
(Lessee)
By
(Title)
Note: The following articles shall be inserted along with the
required socio-economic articles:
Item No.
Item description (equipment No.; type of equipment; serial No.;
manufacturer; year of model; original point of shipment; etc.)
Description of any insurance coverage for loss or damage to equipment
Item Rental Rates
Attach certified copy of insurance policy.
(Continue, if necessary, on reverse side or on separate sheets.)
The following is a complete and correct statement of the amount of
any and all indebtedness secured by liens or other encumbrances of any
nature, legal or equitable, which are held by any person, firm or
corporation against the equipment, items Nos. 1 through ------ .
(Contractor) ------------ .
By ------------ .
(Title) ------------ .
Item No.
Name and address of present creditor
Present unpaid balance
Amounts and date of future payments
(Continue, if necessary, on the reverse side or on separate sheets.)
48 CFR 936.7302 PART 937 -- SERVICE CONTRACTING
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
48 CFR 936.7302 Subpart 937.2 -- Consulting Services
48 CFR 937.205 Management controls.
(b) DOE contracting personnel should familiarize themselves with the
pertinent DOE Directives coverage before any acquisition involving
consulting services is undertaken and shall comply with the appropriate
DOE Directives. See DOE Orders 3304.1 and 4200.3.
(7) In accordance with FAR 37.205(b)(7), purchase requests for
consulting services initiated in the fourth quarter of the fiscal year,
must be approved at the second management level above that of the
initiator or such equivalent level as the Head of Contracting Activity
may designate.
(49 FR 12026, Mar. 28, 1984)
48 CFR 937.205 SUBCHAPTER G -- CONTRACT MANAGEMENT
48 CFR 937.205 PART 942 -- CONTRACT ADMINISTRATION
Sec.
942.000 Scope of part.
942.001 General.
942.002 DOE policy and responsibilities.
942.003 Organizational structure.
48 CFR 937.205 Subpart 942.1 -- Interagency Contract Administration and
Audit Services
942.101 Policy.
48 CFR 937.205 Subpart 942.2 -- Assignment of Contract Administration
942.202 Assignment of contract administration.
48 CFR 937.205 Subpart 942.7 -- Indirect Cost Rates
942.704 Billing rates.
942.705-1 Contracting officer determination procedure.
942.705-3 Educational institutions.
942.705-4 State and local governments.
942.705-5 Nonprofit organizations other than educational and state
and local governments.
942.708 Quick closeout procedures.
48 CFR 937.205 Subpart 942.8 -- Disallowance of Costs
942.803 Disallowing costs after incurrence.
48 CFR 937.205 Subpart 942.10 -- Negotiating Advance Agreements for
Independent Research and Development/Bid and Proposal Costs
942.1004 Location of negotiators in a central office.
942.1008 Administrative appeals.
48 CFR 937.205 Subpart 942.14 -- Traffic and Transportation Management
942.1401 General.
942.1402 Volume movements within the continental United States.
942.1403-1 U.S. Government bills of lading.
942.1403-2 Contractor-prepaid commercial bills of lading.
48 CFR 937.205 Subpart 942.70 -- Audit Services
942.7000 Scope of subpart.
942.7001 Definition.
942.7002 General.
942.7003 Types of services.
942.7003-1 Incurred cost.
942.7003-2 Indirect expenses (overhead cost).
942.7003-3 Accounting systems.
942.7003-4 Management systems.
942.7003-5 Financial analysis evaluations.
942.7003-6 CAS disclosure statements.
942.7003-7 CAS compliance.
942.7003-8 Estimating systems.
942.7003-9 Consultation and advice.
942.7004 Procedures.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 12026, Mar. 28, 1984, unless otherwise noted.
48 CFR 942.000 Scope of part.
This part discusses the requirements for and the management of
activities that occur after the award of a contract.
48 CFR 942.001 General.
(a) Those government actions taken subsequent to award of a contract
to monitor the performance of the contractor and the contractor's
adherence to the terms and conditions thereof through completion of the
contract are commonly referred to as contract management and
administration. The specific actions included in this process are as
generally defined in FAR 42.302. This post-award management is essential
to ensure the purpose of the contract is achieved and is in accordance
with the terms and conditions of the contractual instrument. Contract
management is broad and involves the expertise of many specialists
including technical (programmatic) legal, financial, administrative,
acquisition, and others.
(b) Post-award contract management functions are executed by the
various specialists assigned the responsibility and procedural guidance
as to how to perform the required functions. Generally, acquisition
personnel in the person of a contracting officer, act as the overall
business manager for administering and maintaining the integrity of the
contract. Such responsibility ensures that only a contracting officer
modifies a contract, payments are prompt and represent reimbursements or
payments for only allowable cost, funds are obligated in a timely
manner, and contracts are officially closed.
48 CFR 942.002 DOE policy and responsibilities.
(a) It is the policy of the Department of Energy that the performance
of its contractors be monitored to assure compliance with the terms and
conditions of the contract instrument and products are received on time,
at a reasonable cost which meet technical requirements and
specifications.
(b) The responsibility for ensuring effective post-award management
of DOE contractual programs involves many elements of the Department.
The various procedures and policies that implement and support project
and contract management systems are promulgated in various DOE Orders.
48 CFR 942.003 Organizational structure.
(a) The Department of Defense has initiated a formal system of
independent organizations responsible for performance of post-award
management functions. A field structure of Contract Administration
Offices (CAO) responsible for contract management and administration of
contracts for major defense contractors has been established. DOD
agencies (Army, Navy, Air Force) have organized plant residencies of
contract management specialists for specific DOD contractors and their
various business units. The Defense Logistics Agency performs contract
management functions both at onsite residencies of contractors not
assigned to a service and on a mobile basis from centrally located
management areas for other defense contractors. A complete listing of
the DOD's contract administration service components is contained in the
Defense Directory cited in FAR 42.102.
(b) Civilian agencies for the most part have not established formal,
organizationally independent CAO's responsible for performance of
contract management functions. The post-award contract management and
administration functions performed by civilian agencies are performed by
contracting, program and other staff (accounting, legal, etc.) personnel
and specialists located in the contracting offices and/or Operational
units in a less formal manner than the DOD. Sometimes such services may
be acquired from a cognization Defense CAO, when dealing with a defense
contractor.
(c) The DOE has no field or resident contract administration offices.
Contract management of DOE contracts is performed by the contracting
office or is obtained from a Department of Defense (DOD) Contract
Administration Office (CAO) if the contract warrants requesting contract
administration services from such an activity. There is no specific DOE
rule or policy on requesting and assigning DOE contracts for DOD
administration services. It is a matter of judgment of the contracting
office. To the extent any functions cited in FAR 42.302 are required
for proper post-award management of the contract, assignment to a DOD
CAO or the requesting of certain supporting services (FAR 42.201) from
the CAO should be considered if it is (1) beyond capability of the DOE
office (2) cost effective (3) eliminates duplication of effort, and (4)
would provide for consistent treatment of the contractor.
48 CFR 942.003 Subpart 942.1 -- Interagency Contract Administration and Audit Services
48 CFR 942.101 Policy.
(a) The Department of Energy has entered into cross-servicing
contract management arrangements with:
(1) The Defense Logistic Agency
(2) The Air Force Contract Management Division
(3) The Office of Naval Research
(b) The above arrangements are established and maintained by the
Business and Financial Policy Branch, Office of Policy, Procurement and
Assistance Management Directorate, Headquarters. Questions concerning
these agreements should be directed to that organization.
(c) The Department of Energy Inspector General has established a
memorandum of understanding with the Defense Contract Audit Agency and
the Office of Audit of the Department of Health and Human Services for
providing audit support service (942.70) to the DOE in support of its
procurement mission. Procedures for acquiring these services are
discussed in 942.70.
48 CFR 942.101 Subpart 942.2 -- Assignment of Contract Administration
48 CFR 942.202 Assignment of contract administration.
(d)(5) Contracts assigned for administration support shall be entered
and reported in the Procurement and Assistance Data System.
48 CFR 942.202 Subpart 942.7 -- Indirect Cost Rates
48 CFR 942.704 Billing rates.
(b) When the contracting officer or auditor responsible for
establishing billing rates, in accordance with FAR 42.704, has not
established such rates or such rates are not current for the performance
periods (contractor FY) under contract, the DOE contracting officer
responsible for administration of the contract shall establish an
appropriate rate(s) for billing purposes. If the contractor holds more
than one DOE contract covering that period of performance, the DOE
office with the largest unliquidated obligations as of the beginning of
that performance period shall take the lead in establishing the required
billing rate for use on DOE contracts. Once appropriate billing rates
are established by the responsible contracting officer designated by FAR
42.704, such rates shall be adopted by the contracting officer and all
billings and payments shall be retroactively revised to reflect the
agreed upon rate(s).
48 CFR 942.705-1 Contracting officer determination procedure.
(a)(3) The Department of Energy shall use the contracting officer
determination procedure for all business units for which it shall be
required to negotiate final indirect cost rates. A listing of such
business units is maintained by the Business and Financial Policy
Branch, Office of Policy, Procurement and Assistance Management
Directorate, Headquarters, and published as a separate publication in
the DOE Order system.
(b)(1) The Department of Energy shall not require or direct
contractors to submit their final indirect cost rate proposals
reflecting actual cost experience during the covered period to the
auditor. The DOE negotiating official shall request all needed audit
service in accordance with the procedures in 942.70, Audit Services.
48 CFR 942.705-3 Educational institutions.
(a)(2) The negotiated rates established for the institutions cited in
OMB circular No. A-88 are centrally maintained by the Business and
Financial Policy Branch, Office of Policy, Procurement and Assistance
Management Directorate, Headquarters.
48 CFR 942.705-4 State and local governments.
A list of cognizant agencies for State/local government organizations
is maintained by the Office of Management and Budget (OMB) which is
periodically published in the Federal Register. The responsible
agencies are notified of such assignments. A listing of the cognizant
agencies and the current negotiated rates for State/local government
activities is maintained by the Business and Financial Policy Branch,
Office of Policy, Procurement and Assistance Management Directorate,
Headquarters.
48 CFR 942.705-5 Nonprofit organizations other than educational and
state and local governments.
OMB Circular A-122 establishes the rules for assigning cognizant
agencies for the negotiation and approval of indirect cost rates. The
Federal agency with the largest dollar value of awards (contracts plus
federal financial assistance dollars) will be designated as the
cognizant agency. DOE is not currently assigned cognizance over any
such nonprofit organizations. There is no published listing of assigned
agencies. The Business and Financial Policy Branch, Office of Policy,
Procurement and Assistance Directorate, Headquarters, does maintain a
DOE central file of rates established by the cognizant agency.
48 CFR 942.708 Quick closeout procedures.
(a) Contracting officers shall use the quick-closeout procedure to
finalize indirect expenses under any DOE contract when it appears
appropriate to establish such expenses by means other than the formal
negotiation procedures of FAR Subpart 42.7 and use of this procedure is
agreeable to the contractor. The quick-closeout procedure is considered
to include the establishment, of either indirect cost rates established
for the closeout of a contract(s) or lump-sum indirect expenses dollars
that shall be agreed to as chargeable to the contract. Such lump-sum
amounts are appropriate for all categories of contractors -- commercial,
State/local governments, educational, and nonprofit organizations.
The contracting officer shall apply the quick-closeout procedure in
closing DOE contracts in lieu of using the rates established in
accordance with FAR 42.705, when:
(1) See FAR 42.708(a)(1)
(2) The amounts of indirect expense to be reimbursed by a single DOE
contract will not exceed $250,000 per contractor fiscal year or the
indirect expense amount reimbursed by all DOE contracts using the
quick-closeout procedure will not exceed $1,000,000 per contractor
fiscal year.
(3) Amounts of and the allowability of claimed or proposed indirect
expenses will be readily determinable based on a review of the
contractor's indirect cost experience (reviews may be made by the
contracting officer with or without the assistance of a professional
auditor).
(4) The contractor does not have a history of disputes, disallowed
cost of any consequence, and there are no known potential cost issues of
significance.
(5) There is a low potential (risk) for any significant over payment
of indirect expense under the contract.
(6) Administrative cost of obtaining the annual negotiated final
rate(s) is known to, or would be expected to, exceed any benefit of the
final rates established in accordance with FAR Subpart 42.7.
(d) A decision to request audit assistance in applying the
quick-closeout procedure should be decided on a case-by-case basis. The
extent of any required services may vary. If possible, closeout rates
or lump-sum expenses should be established with limited use of audit
especially when acquiring the support service would defeat the
quick-closeout approach by lengthening the evaluation and contract
closeout process. Audits should not be requested if it is reasonably
apparent that the audit would have little effect on the rates or expense
finally agreed upon and any overpayments would be relatively
insignificant.
48 CFR 942.708 Subpart 942.8 -- Disallowance of Costs
48 CFR 942.803 Disallowing costs after incurrence.
(a) Contracting officer receipt of vouchers. Vouchers and invoices
submitted to DOE shall be submitted to the contracting officer or
designee for review and approval for payment. If the examination of a
voucher or invoice raises a question regarding the allowability of a
cost submitted therein, the contracting officer, shall:
(1) Hold informal discussion with the contractor as appropriate.
(2) Issue a notice (letter, memo, etc.) to the contractor advising of
cost disallowed or to be disallowed and advising the contractor that it
may:
(i) Submit a written claim as to why the cost should be reimbursed --
if in disagreement with the disallowance.
(ii) File a claim under the disputes clause, which will be processed
in accordance with disputes procedures in the event disagreements cannot
be settled.
(3) Process the voucher or invoice for payment and advise the finance
office to deduct the disallowed cost when scheduling the voucher for
payment.
(c) Auditor reports and other sources of questioned costs. (1) From
time to time reports are received from professional auditors that may
question the allowability of an incurred cost. Such reports are
received as the result of auditors, in their independent role under OMB
Circular A-73 or their own charters, scheduling and conducting financial
or compliance audits of government contracts or as the result of an
independent request for auditor service, as discussed in 942.70 Audit
Services.
(2) When auditor reports or other notifications question cost or
consider them unallowable, the contracting officer shall follow up such
reports and resolve all such cost issues promptly by determining,
through discussions with the contractor and/or auditor within six months
of the audit report date, or date of receipt if a non-Federal audit.
One of the following courses of action shall be pursued:
(i) Accept and implement audit recommendations as submitted.
(ii) Accept the principle of the audit recommendation but reject the
cost questioned amount.
(iii) Reject audit findings and recommendations.
(3) When implementing the accepted course of action, the contracting
officer shall --
(i) Hold discussions with the auditor and contractor as appropriate.
(ii) Issue a notice in writing advising the contractor of the
government's intent to disallow the cost questioned, if the contracting
officer agrees with the auditor concerning the questioned costs.
(iii) Negotiate a mutual settlement of questioned costs if they are
agreed with in principle but there is a difference of opinion as to a
proper amount.
(iv) Negotiate a mutual settlement of questioned costs if the auditor
recommendations are acceptable to the contracting officer but the
contractor does not accept the finding or disallowance.
(v) Issue a final decision of the contracting officer disallowing the
questionable cost where differences cannot be resolved, advising of the
contractor's right to appeal the decision, and advising the procedure to
be followed if it is decided to make such an appeal.
(vi) Initiate immediate recoupment actions for all disallowed cost
owed the government by:
(A) Requesting the contractor to provide a credit adjustment (offset)
against amounts billed the government on the next or future invoice(s)
if such shall be submitted under a contract for which the disallowed
cost applies.
(B) Deducting (offset) the disallowed cost from the next or future
invoice(s) submitted under the contract; if the contractor provides no
adjustment under the contract for which the disallowed cost applies;
provided such reduction is deemed appropriate.
(C) Advising the contractor that a refund shall be directly payable
to the government in situations where there are insufficient payments
owed by the government to effect recovery via (A) or (B) above or an
offset is otherwise inappropriate.
(vii) Promptly notify the appropriate finance office of refunds
directly payable to the government to ensure proper billing and followup
action for collection.
48 CFR 942.803 Subpart 942.10 -- Negotiating Advance Agreements for Independent Research and Development/Bid and Proposal Costs
48 CFR 942.1004 Location of negotiators in a central office.
The central office within the DOE for negotiating independent
research and development/bid and proposal (IR&D/B&P) advance agreements,
as required in accordance with FAR 42.1004, is established in the Oak
Ridge Operations Office. The DOE contracting officers should advise
offerors, suppliers, potential contractors, and contractors that are
required, or expect they will be required, to establish advance
agreements for allowability of IR&D/B&P cost. When the DOE is to be the
lead negotiating agency in accordance with FAR 42.1003, IR&D/B&P
proposals and/or other correspondence shall be submitted to DOE, Oak
Ridge Operations Office, Chief, Systems and Cost Analysis Branch, P.O.
Box E, Oak Ridge, TN 37831.
(54 FR 27647, June 30, 1989)
48 CFR 942.1008 Administrative appeals.
The official within the DOE to hear administrative appeals of a
contracting officer's decision to reduce payment, as prescribed in FAR
42.1008, is the Procurement Executive.
48 CFR 942.1008 Subpart 942.14 -- Traffic and Transportation Management
48 CFR 942.1401 General.
DOE contracting officers or designees will consult and coordinate
with the Office of Transportation Management, Defense Programs,
Headquarters, as required in 41 CFR Part 109-40 and implemented by DOE
Order 1540.1.
(49 FR 12026, Mar. 28, 1984, as amended at 56 FR 41965, Aug. 26,
1991)
48 CFR 942.1402 Volume movements within the continental United States.
(a)(2) DOE activities will be reported to the Office of
Transportation Management, Defense Programs Headquarters.
(49 FR 12026, Mar. 28, 1984, as amended at 56 FR 41965, Aug. 26,
1991)
48 CFR 942.1403-1 U.S. Government bills of lading.
(a) The Office of Transportation Management, Defense Programs
Headquarters, has responsibility for prescribing DOE's shipping
documents.
(c)(1) Any limited authority for the use of commercial forms and
procedures to acquire freight or express transportation for small
shipments of a recurring nature will be prescribed by the Office of
Transportation Management, Defense Programs, Headquarters.
(49 FR 12026, Mar. 28, 1984, as amended at 56 FR 41965, Aug. 26,
1991)
48 CFR 942.1403-2 Contractor-prepaid commercial bills of lading.
(a) Use of commercial bills of lading for movement of supplies should
be on a limited manner. Shipments of questionable quantity should be
discussed with the Office of Transportation Management, Defense
Programs, Headquarters.
(49 FR 12026, Mar. 28, 1984, as amended at 56 FR 41965, Aug. 26,
1991)
48 CFR 942.1403-2 Subpart 942.70 -- Audit Services
48 CFR 942.7000 Scope of subpart.
This subpart prescribes policies and procedures for requiring and
using audit support services in the post-award management of DOE
contracts. Such services shall be obtained in accordance with the
provisions of FAR Subpart 42.1 and this subpart.
48 CFR 942.7001 Definition.
Auditors are professional accountants who although organizationally
independent are viewed as one of several sources of counsel to the
contracting officer on accounting and other financial subjects. They
are the principal advisors to contracting officers on audit matters and
provide the contracting officers with various audit services.
48 CFR 942.7002 General.
Contract management practices require the review of a contractor's
contract cost records and controls, billings, and claims to assure their
completeness, accuracy, and compliance with contract requirements. Such
services are available from and provided by independent government audit
activities such as the Defense Contract Audit Agency, the Inspector
General, and commercial audit firms. Such services are generally
referred to as ''Contract Audit.'' In addition to providing ''Contract
Audit'' services in direct support of the contracting officer and other
program officials, departmental audit activities, pursuant to Office of
Management and Budget policies set forth in Circular A-73, Audit of
Federal Operations and Programs, conduct their own independent economy
and efficiency reviews of government contractors and performers. Their
purpose is to determine whether the business entity is managing and
utilizing its resources economically and efficiently and any causes of
inefficiencies or uneconomical practices.
48 CFR 942.7003 Types of services.
An efficient and effective contract management and administration
program requires that the contracting officer responsible for post award
contract management and administration functions seek the service of the
professional auditor in several areas. The primary areas of needed
audit support and areas in which auditors have agreed to support the DOE
acquisition mission are:
(a) Incurred cost audits (direct & indirect cost) --
(1) Vouchers, billings, invoices, claims, and other settlement
proposals;
(2) Financial records, contract cost records, work-in-process costs,
etc.;
(b) Overhead rate reviews (establishment and verifications);
(c) Accounting systems reviews;
(d) Management control systems reviews;
(e) Financial analysis evaluations;
(f) Review Cost Accounting Standards (CAS) Disclosure Statements;
(g) Cost Accounting Standards compliance;
(h) Estimating system reviews;
(i) Consultation and advice.
48 CFR 942.7003-1 Incurred cost.
(a) Financial audits of a contract's cost records and charges,
particularly material and labor cost, shall be requested of the auditors
as is considered warranted by the financial condition, integrity, and
reliability of the contractor; prior audit experience; adequacy of the
accounting system; and unaudited claims, vouchers, invoices, and
billings. Audits of such cost should be requested when needed or
desirable, but no less frequently than once yearly for any contract
where such annual cost exceed $500,000 or $1,000,000 under all DOE
contracts. Such audits should cover cost-reimbursement type contracts,
including fixed-price contracts with cost-reimbursement portions, letter
contracts with reimbursement provisions, time-and-materials contracts,
and labor-hour contracts.
(b) Vouchers and invoices provisionally approved and paid may be
submitted to the auditor for specific review and verification of the
accounting records and for an opinion on the allowability of the cost
when situations warrant.
48 CFR 942.7003-2 Indirect expenses (overhead cost).
Auditors look at indirect expenses (overhead cost) on an
after-the-fact basis to review the incurred cost and to assist in the
negotiation of a final overhead payment rate, when such rates are
provided for in the contract. Auditors also assist the contracting
officer in the administration of indirect cost by making appropriate
recommendations concerning the establishment of before-the-fact overhead
rates for billing purposes and/or establishing predetermined overhead
rates. Contracting officers should seek the assistance of the auditor
as they deem warranted or appropriate or as may be required by FAR
42.700 and 942.7.
48 CFR 942.7003-3 Accounting systems.
Auditors are available to advise the contracting officer on the
adequacy of a contractor's accounting system and its suitability for
administration of Government contracts. The contracting officer should
always obtain such service to assure himself/herself of the contractor's
financial competence or credit needs, unless prior experience or other
available information shows the contractor to have financial integrity
and acceptable accounting and cost control systems.
48 CFR 942.7003-4 Management systems.
Auditors are available to help the contracting activity and the
contracting officer in a review, and assessment of a contractor's
various management systems and systems of internal control. The
objective of the reviews, is to assure cost effective and efficient
methods of operations. Reviews should be requested as deemed warranted.
48 CFR 942.7003-5 Financial analysis evaluations.
Auditors are available to assist the contracting officer in a review
and evaluation regarding a contractor's financial competence or credit
needs. Such service may be helpful in determining the need for advance
payments, loans, etc. When the contracting officer is aware of or is
otherwise concerned about the financial viability of the contractor,
financial reviews by the auditors should be requested as the contracting
officer believes the situation warrants.
48 CFR 942.7003-6 CAS disclosure statements.
The audit activity is available and, in accordance with FAR 30, Cost
Accounting Standards, is responsible for making recommendations to the
contracting officer as to whether the CAS disclosure statement submitted
by the contractor as a condition of the contract, adequately describes
the actual or proposed cost accounting practices, and is in compliance
with the Cost Accounting Standards required under the terms of the
contract (required by Pub. L. 91-379, 50 U.S.C. App. 2168, for Defense
contracts). The contracting officer shall request the auditor to review
all Disclosure Statements submitted by a contractor or potential
contractor.
48 CFR 942.7003-7 CAS compliance.
The audit activity also performs audits for contractor compliance
with the standards of the Cost Accounting Standards Board, when such
Standards are required to be followed under the terms of the contract;
and, the audit activity advises whether a contractor or subcontractor
has failed to comply with the applicable Standards or to follow
consistently its disclosed cost accounting practices and whether the
failure has resulted in or may result in any increased cost paid by the
government. The auditors also review proposed price changes for
contractor changes to disclosed or established cost accounting practices
to assure that the changes are fair and reasonable.
48 CFR 942.7003-8 Estimating systems.
Many contractors, particularly where a large portion of the business
is government work, have formal cost estimating systems used in the
development of program estimates and/or the submittal of price/cost
proposals to the Government. Other contractors which perform less
Government work often have some type of system, too. Estimating systems
are encouraged by the Government, but it should be recognized that
systems will vary between contractors, and may vary between plants or
divisions of a contractor due to differences in products, size and
methods of operation (i.e., production versus research), and other
factors. Advantages of estimating systems are that they: (a) Provide a
greater degree of confidence in estimates, (b) expedite the negotiation
process, (c) reduce the amount of detailed explanations that need be
included in each proposal on the estimating procedural rationale used,
and (d) reduce need for and scope of reviews by technical, financial and
audit personnel. Auditors are available to assist the acquisition
organization in reviewing a contractor's estimating systems or
processes. The contracting officer shall decide whether an estimating
system review should be undertaken as a team effort, including an
auditor, or if the auditors can sufficiently perform a system check by
themselves. It is not DOE policy to generally request such reviews.
48 CFR 942.7003-9 Consultation and advice.
Auditors are available for general consultation and advice to
acquisition and supporting personnel (including counsel) with or without
providing an audit.
48 CFR 942.7004 Procedures.
(a) The Department of Energy Inspector General (IG) has established
formal cross-servicing arrangements with the Defense Contract Audit
Agency (DCAA) and the Health and Human Services Inspector General.
Audits are available to contracting officer pursuant to terms of these
arrangements.
(b) The following procedures are to be followed by the contracting
officer when requesting needed audit services:
(1) Upon award of a contract to an existing DOE or DOD contractor
which is being audited by the DCAA, all requests for normal postaward
audit services shall be directed to the cognizant DCAA office.
(2) Upon award of a contract to a contractor who is not currently
being audited by DCAA, and/or for which the DCAA is not the cognizant
audit activity, all requests for postaward audit services shall be
directed to the DOE Assistant Inspector General for Audits.
(3) Requests to the DOE Assistant Inspector General for audit
services shall be made to the appropriate Regional Office.
(c) In determining if DCAA is currently auditing a contractor or has
audited it in the past, the contracting officer should refer to the
contractor's pricing proposal or ask the contractor.
(d) In the event a contracting officer considers that an economy and
efficiency system review or a program results audit will be beneficial
to the Government's interest, the appropriate Regional office of the DOE
Assistant Inspector General for Audits should be notified.
(1) Such request should be made to the IG's office even in situations
where the DCAA or another audit activity is known to be cognizant for
contract audit.
48 CFR 942.7004 PART 943 -- CONTRACT MODIFICATIONS
48 CFR 942.7004 Subpart 943.1 -- General
943.170 Extension of contracts resulting from unsolicited proposals.
48 CFR 942.7004 Subpart 943.3 -- Forms
943.301 Use of forms.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
48 CFR 942.7004 Subpart 943.1 -- General
48 CFR 943.170 Extension of contracts resulting from unsolicited
proposals.
(a) Where additional time beyond the formal contract period is
required to complete or continue the work undertaken as the result of
the acceptance of an unsolicited proposal and award of a contract
therefor, the Contractor should be instructed to submit six copies of an
extension proposal to the contracting office in sufficient time to allow
evaluation and possible processing before the date of expiration of the
contract. This requirement does not apply to requests for no-cost
extensions as may sometimes be needed to complete all details such as a
final report of the project.
(b) The extension proposal should outline and justify a program and
budget for the succeeding year(s), showing in detail the estimated cost
for the additional period(s) requested. It should include the same type
of information to the extent as was contained in the initial proposal.
Any contemplated change in program or scope for the ensuing period(s)
should be justified and explained clearly, and must remain consistent
with the original method, approach or idea which was accepted as the
basis for award by DOE as a result of the initial unsolicited proposal.
This is not, however, intended to preclude a redirection based upon a
discovery or breakthrough occurring under the contract to date.
(c) The extension proposal should include a financial profile of the
existing contract including:
(1) Total project costs to date, indicating the amount chargeable to
DOE;
(2) An estimate of the total costs to be incurred during the
remainder of the current period, including a statement of unexpended
balance.
(d) All requests for extensions of contract work as a result of an
unsolicited proposal should be evaluated by the appropriate program
office in light of:
(1) Progress reports submitted by the Contractor;
(2) Research results published in scientific media;
(3) Field visits by technical personnel;
(4) Contractor's progress and potential for achieving desired
results;
(5) Continued relevance to DOE's mission;
(6) Scientific and technical merit of the research;
(7) Availability of funds;
(8) Likelihood that competition at this stage in the project would
hasten achieving the desired results.
(e) Requests for extensions of contract work originating from an
unsolicited proposal should generally follow the same process of review
and evaluation of technical aspects and funding, preparation and
execution of contract, and administration as does a new project.
(f) When an extension request receives a favorable technical
evaluation and a determination is made that similar conditions exist
relative to those that justified acceptance of the initial unsolicited
proposal, a justification for extension of the award shall be processed
for review and approval as indicated in 915.506.
(g) As a minimum, extension justification should contain:
(1) A statement of the result of the technical evaluation
(915.570-2).
(2) An evaluation of any contemplated change in the contract scope of
work for the renewal period and a justification explaining why this
change is consistent with the original method, approach or idea which
was accepted as the basis for award by the DOE as a result of the
initial unsolicited proposal.
(3) An assessment of the current status of the original circumstances
and conditions which justified acceptance of the intitial unsolicited
proposal identifying any changes that may have developed and providing
rationale as to why such change(s) should not preclude renewal.
(h) If, after evaluation, it is decided that an extension period
should not be supported on the basis of technical merit or other
reasons, such as lack of funding, or changed mission relevance, the
project officer should:
(1) Prepare a written statement setting forth the basis for
rejection, submit one copy to the responsible program official for
approval and transmittal to the proposer and retain one copy in the
permanent file.
(2) Promptly notify the contracting officer in order that the current
contract may be closed out.
(i) Under certain circumstances it may be in the Government's best
interest to continue or complete the work begun under a contract awarded
as a result of an unsolicited proposal but which is not appropriate for
extension. Continuation or completion of the work shall be accomplished
by means of competition, unless non-competitive acquisition can be
justified in accordance with FAR 6.3.
(49 FR 12031, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984, as amended
at 56 FR 41965, Aug. 26, 1991)
48 CFR 943.170 Subpart 943.3 -- Forms
48 CFR 943.301 Use of forms.
(c) FAR 43.301(a)(1)(vi) requires the use of Standard Form 30 (SF30)
to effect any obligation or deobligation of contract funds after award.
The Standard Form 30 (SF30) shall also be used to deobligate funds when
effecting contract closeout for a cost reimbursement contract when
obligated funds exceed the final contract costs. In this instance, the
form may be issued as an administrative modification on a unilateral
basis if the contractor's financial release has been separately
obtained.
(50 FR 12185, Mar. 27, 1985)
48 CFR 943.301 PART 944 -- SUBCONTRACTING POLICIES AND PROCEDURES
48 CFR 943.301 Subpart 944.1 -- General
Sec.
944.101 Definitions.
48 CFR 943.301 Subpart 944.2 -- Consent to Subcontracts
944.202-1 Responsibilities.
944.202-2 Considerations.
944.203 Consent limitations.
48 CFR 943.301 Subpart 944.3 -- Contractors' Purchasing Systems Reviews
944.302 Requirements.
944.304 Surveillance.
944.305 Granting, withholding, or withdrawing approval.
944.305-1 Responsibilities.
944.307 Reports.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 12031, Mar. 28, 1984, unless otherwise noted.
48 CFR 943.301 Subpart 944-1 -- General
48 CFR 944.101 Definitions.
DOE cognizant contractors refers to those contractors over which DOE
has been assigned cognizance by the Office of Management and Budget, or
those with which DOE has the preponderance of Government business. The
term includes pilot and demonstration plant contractors.
Industrial facilities means property (other than material, special
tooling, and special test equipment) for production, maintenance,
research, development, or test, including real property and rights
therein, buildings, structures, improvements, and plant equipment.
48 CFR 944.101 Subpart 944.2 -- Consent to Subcontracts
48 CFR 944.202-1 Responsibilities.
(b) The responsible contracting officer shall --
(1) Promptly evaluate the contractor's requests for consent to
subcontract;
(2) Obtain assistance in the evaluation from subcontracting, audit,
pricing, technical, or other specialists as necessary;
(3) Withhold consent to subcontracts with subcontractors on the DOE
consolidated List of Debarred, Suspended, Ineligible, and Voluntarily
Excluded Awardees (DOE List) (see 10 CFR 1035.15) or the GSA
Consolidated List of Debarred, Suspended, and Ineligible Contractors
(GSA List), to the extent that the award falls within the scope of the
suspension, proposed debarment, debarment, ineligibility, or voluntary
exclusion unless the Procurement Executive determines in writing that
there is a compelling reason for such action (see 10 CFR 1035.13 and
1035.13(c)); and
(4) Notify the contractor in writing of consent or the withholding of
consent, including any changes or corrections required.
48 CFR 944.202-2 Considerations.
(a)(13) In addition to the considerations in FAR 44.202-2, the
contracting officer responsible for consent shall review the request and
supporting data and consider whether the proposed subcontractor or any
proposed key person(s) is on the DOE List.
48 CFR 944.203 Consent limitations.
(d) For determining profit/fee objectives under negotiated
subcontracts, the prime contractor should have considered use of and
applied a weighted guidelines or a structured approach that
distinguishes different levels of investment if the acquisition would be
subject to the weighted guidelines under a prime DOE contract. If the
acquisition falls into one of the exceptions to the DOE weighted
guidelines applications as cited in 915.970-4, the prime contractor
should have applied other techniques to establish profit objectives.
48 CFR 944.203 Subpart 944.3 -- Contractors' Purchasing Systems Reviews
48 CFR 944.302 Requirements.
(a) Heads of Contracting Activities shall consider whether the best
interest of DOE would be served by the initiation of a Contractor
Purchasing System Review (CPSR) for those contractors whose sales to DOE
are expected to exceed $5,000,000 during the next 12 months and for
which DOE is the cognizant Government agency for CPSR purposes. In
exceptional circumstances, consideration of a CPSR may be warranted for
contractors with sales to DOE of less than $5,000,000. When considering
the initiation of a CPSR, such a review should not be conducted if the
extent of the contractor's subcontracting program does not appear to
justify the review.
(b) DOE contracting officers, or designees, will conduct CPSRs of DOE
cognizant contractors. Other Federal Agencies/Departments may be
requested to conduct CPSRs, as appropriate, for other than DOE cognizant
contractors. DOE contracting officers shall normally recognize other
Federal Agency/Department approvals of contractors' purchasing systems
within the limitation identified by approving officials of such
agencies.
(c) Initial, subsequent, and followup review teams should include
appropriate representatives from DOE field offices; other Federal
Agency participation may be additionally requested as appropriate.
Generally, team composition should not consist exclusively of those who
have a day-to-day relationship with the contractor regarding subcontract
consent or approval.
(d) The Procurement Executive is responsible for the overall conduct
of the DOE CPSR program.
48 CFR 944.304 Surveillance.
(b) The surveillance plan required by FAR 44.304(b) shall be approved
by the Head of the Contracting Activity.
48 CFR 944.305 Granting, withholding, or withdrawing approval.
48 CFR 944.305-1 Responsibilities.
(a) Team findings and recommendations contained in a CPSR Report
shall be approved by the Head of Contracting Activity before the
contracting officer makes a determination to continue, grant, withhold,
or withdraw approval.
48 CFR 944.307 Reports.
(b) Copies of CPSR reports; notifications granting, continuing,
withholding, or withdrawing approval of a contractor's purchasing
system; copies of recommendations for improvement of an approved
system; notifications (or contract modifications) altering the
subcontract consent dollar thresholds; and information received from
the contractor pursuant to FAR 44.305-3(b) shall be transmitted to the
Director, Procurement Management Review Division, Procurement and
Assistance Management Directorate, Headquarters.
(49 FR 12031, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 944.307 PART 945 -- GOVERNMENT PROPERTY
Sec.
945.000 Scope of part.
48 CFR 944.307 Subpart 945.1 -- General
945.101 Definitions.
945.102-70 Reporting of contractor-held property.
945.102-71 Maintenance of records.
945.104-70 Review and correction of contractors' property management
systems.
48 CFR 944.307 Subpart 945.3 -- Providing Government Property to
Contractors
945.303-1 Policy.
945.304 Providing motor vehicles.
48 CFR 944.307 Subpart 945.4 -- Contractor Use and Rental of Government
Property
945.407 Non-Government use of plant equipment.
48 CFR 944.307 Subpart 945.5 -- Management of Government Property in the
Possession of Contractors
945.501 Definitions.
945.502-70 Physical protection of property.
945.502-71 Control of sensitive items of property.
945.502-72 Management of precious metals.
945.505-5 Records of plant equipment.
945.505-11 Records of transportation and installation costs of plant
equipment.
945.505-14 Reports of Government property.
945.506 Identification.
945.508 Physical inventories.
945.570 Motor vehicle and aircraft managment.
945.570-1 Classification of motor vehicles.
945.570-2 Acquisition of motor vehicles.
945.570-3 Selection of type of motor vehicles.
945.570-4 Identification of motor vehicles.
945.570-5 Utilization of motor vehicles.
945.570-6 Maintenance of motor vehicles.
945.570-7 Disposition of motor vehicles.
945.570-8 Reporting motor vehicle data.
945.570-9 Aircraft.
48 CFR 944.307 Subpart 945.6 -- Reporting, Redistribution, and Disposal
of Contractor Inventory
945.601 Definitions.
945.603 Disposal methods.
945.603-70 Plant clearance function.
945.603-71 Disposal of radioactively contaminated personal property.
945.607-2 Recovering precious metals.
945.608-2 Standard screening.
945.608-3 Agency screening.
945.608-4 Limited screening.
945.608-5 Special items screening.
945.608-6 Waiver of screening requirements.
945.610-4 Contractor inventory in foreign countries.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 12032, Mar. 28, 1984, unless otherwise noted.
48 CFR 945.000 Scope of part.
This part and FAR Part 45 are not applicable to the management of
property by operating and management contractors. In addition, the
policies and procedures contained in FAR Part 45 governing the
management, control, reporting, and disposal of special test equipment
and special tooling are not followed by the DOE.
48 CFR 945.000 Subpart 945.1 -- General
48 CFR 945.101 Definitions.
Personal property, as used in this part, means property of any kind
or interest therein, except real property; records of the Federal
Government; and nuclear and special source materials, atomic weapons,
and by-product materials.
Capital equipment, as used in this part, means personal property
items having a unit acquisition cost of $5,000 or more and an
anticipated service life in excess of two years, regardless of type of
funding, and having the potential for maintaining their integrity as
capital items; i.e., not expendable due to use.
(54 FR 27647, June 30, 1989)
48 CFR 945.102-70 Reporting of contractor-held property.
Within 30 days after the end of each fiscal year, the Head of the
Contracting Activity shall report the following information to the
Director, Property and Equipment Management Division, Procurement and
Assistance Management Directorate, Headquarters:
(a) Name and address of each contractor with DOE property in their
possession, or in the possession of their subcontractors (do not include
grantees, cooperative agreements, interagency agreements, or agreements
with state or local governments).
(b) Contract number of each DOE contract with Government property.
(c) Date contractor's property management system was approved and by
whom (DOE office, Defense Contract Administration Service, or the Office
of Naval Research).
(d) Date of most current appraisal of contractor's property
management system, who conducted the appraisal, and status of the system
(satisfactory or unsatisfactory).
(e) Total dollar value of DOE property as reported on last semiannual
asset report (including date of report), for each DOE contract
administered by the contracting activity.
48 CFR 945.102-71 Maintenance of records.
The contracting activity shall maintain records of approvals and
reviews of contractors' property management systems, the dollar value of
DOE property as reported on the most recent semiannual financial report,
and records on property administration delegations to other Government
agencies.
48 CFR 945.104-70 Review and correction of contractors' property
management systems.
DOE offices shall follow the provisions of this section in the review
and approval of a contractor's property management system. If contracts
are formally delegated to other Government activities for property
administration, the DOE will accept their method of approving the
contractor's system and document the file accordingly.
(a) Initial review. (1) The contracting officer, or his/her
representative assigned the responsibility as property administrator,
shall review contractors' property systems within six months after the
execution of the contract to assure compliance with the Government
property clauses of the contract.
(2) Appraisals of complex property management operations may require
detailed tests and evaluations on-site over an extended period of time.
However, an evaluation of a contractor's operation involving only small
dollar amounts of property and simple property control methods can often
be accomplished without an on-site visit or extensive testing by the
property administrator, by utilizing the Off-Site Contractor's Property
Management Self-Evaluation Questionnaire, telephone contacts, or other
appropriate methods necessary to assure that the system is adequate.
(3) In those instances where a contractor has contracts with more
than one DOE contracting office, the DOE office with the contract(s)
having the largest dollar value of property should normally be
responsible for making the necessary reviews and appraisals of the
contractor's system. Contracting officers should determine if a
contractor has multiple DOE contracts by inquiry of the Procurement and
Assistance Data System (PADS).
(4) When the contractor's property management system has previously
been approved and a new contract requires the expansion of existing, or
the establishment of additional controls, the review should normally be
limited to the new requirements. If the system is adequate, the
property administrator shall record this fact. Notification to the
contractor is not required. However, if the property administrator
determines that the contractor's property management system does not
adequately meet the new contract requirements, the contractor shall be
notified in writing of the required changes.
(5) The property administrator shall examine the contractor's
procedures to be used to determine the extent to which they meet the
criteria for property management required by FAR Subparts 45.5 and 45.6
and Subparts 945.5 and 945.6 of this chapter. Necessary tests will be
made of the contractor's system, as appropriate, and, as each functional
area is analyzed, the acceptability of the procedures shall be
appropriately noted or commented upon and used as the basis for
preparation of the record of system evaluation. Worksheets should be
maintained by the property administrator.
(6) Upon completion of the property administrator's review, an exist
interview will be held with the contractor to discuss any areas of the
contractor's property management controls or systems found to be
defective, and to recommend corrective actions to be completed before an
approval of the system can be granted. Agreement shall be reached as to
corrective measures necessary and a reasonable time schedule established
for completion of the corrective actions.
(7) Following the exist interview, the property administrator shall
prepare a written summary of findings to support approval of the system
or the requirements for corrective action to be taken prior to such
approval.
(8) The property administrator shall advise the contractor in writing
when the contractor's property management system is considered
acceptable.
(9) The property administrator shall notify the contractor in writing
when its property management system is not acceptable, and request
correction of the deficiencies within the agreed upon time schedule.
(10) Appropriate follow-up shall be taken by the property
administrator to ensure that corrective actions are taken.
(11) If the contractor does not correct the deficiencies within the
time period, the property administrator shall request action by the
contracting officer administering the contract. The contracting officer
shall notify the contractor in writing including the details specified
at FAR 45.104(c). If the contractor also has contracts with other DOE
contracting activities, the contracting officer shall notify the
Property and Equipment Management Division, Headquarters.
(12) When the contract involves Government property at subcontractor
facilities or prime contractor secondary locations, and the controls for
the property at such locations have been determined to be adequate, the
approval shall be expanded to include the procedures governing
Government property at such locations.
(b) Follow-up reviews. Every two years after the initial approval of
the contractor's system, the property administrator shall reappraise the
contractor's property management operations in accordance with the
provisions of paragraph (a) above.
(49 FR 12032, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 945.104-70 Subpart 945.3 -- Providing Government Property to Contractors
48 CFR 945.303-1 Policy.
The DOE has established specific policies concerning special nuclear
material requirements needed under DOE contracts for fabricating end
items using special nuclear material, and for conversion or scrap
recovery of special nuclear material. These special nuclear material
needs means ''uranium enriched in the isotope U233, U235 and plutonium
other than PU238.'' The policies to be followed are:
(a) Special nuclear material will be furnished by the DOE for
fixed-price contracts and subcontracts, at any tier, which call for the
production of special nuclear products, including fabrication and
conversion, for Government use. (The contractor or subcontractor must
have the appropriate license or licenses to receive the special nuclear
material. The Nuclear Regulatory Commission is the licensing agency.)
(b) Contracts and subcontracts for fabrication of end items using
special nuclear material generally shall be of the fixed-price type.
Cost-type contracts or subcontracts for fabrication shall be used only
with the approval of the Head of the Contracting Activity. This
approval authority shall not be further delegated.
(c) Contracts and subcontracts for conversion or scrap recovery of
special nuclear material shall be of a fixed-price type, except as
otherwise approved by the Head of the Contracting Activity.
48 CFR 945.304 Providing motor vehicles.
Additional guidance and information concerning the provision of motor
vehicles are found at:
(a) 945.570 Motor vehicle and aircraft management.
(b) 908.11 Leasing of motor vehicles.
(c) 908.7101 Acquisition of motor vehicles.
(d) FAR 51.2 GSA Interagency Motor Pool System.
48 CFR 945.304 Subpart 945.4 -- Contractor Use and Rental of Government Property
48 CFR 945.407 Non-Government use of plant equipment.
The type of plant equipment and dollar threshold for non-Government
use of DOE plant equipment will be determined by the Head of the
Contracting Activity which awarded the contract. Approval of the Head
of the Contracting Activity is required to authorize non-Government use
exceeding 25% of operational use.
48 CFR 945.407 Subpart 945.5 -- Management of Government Property in the Possession of Contractors
48 CFR 945.501 Definitions.
Government-furnished motor vehicles are DOE-owned vehicles, vehicles
leased from the General Services Administration Interagency Motor Pool
System (GSA-IMPS), and vehicles leased from commercial sources.
Precious metals, as used in this subpart, means uncommon and highly
valuable metals characterized by their superior resistance to corrosion
and oxidation. Included are silver, gold, and the platinum group metals
-- platinum, palladium, iridium, osmium, rhodium, and ruthenium.
Sensitive items as used in this subpart, means those items of
property which are susceptible to being appropriated for personal use or
which can be readily converted to cash. Examples are firearms,
photographic equipment, binoculars, tape recorders, calculators, and
power tools.
48 CFR 945.502-70 Physical protection of property.
(a) Controls such as property pass systems, memorandum records,
marking of tools, regular or intermittent gate checks and perimeter
fencing shall be implemented, recognizing the value of the property to
prevent loss, theft, or unauthorized movement of Government property
from the premises on which such property is located.
(b) Classified Government property will be handled in accordance with
instructions of the contracting officer.
48 CFR 945.502-71 Control of sensitive items of property.
(a) The contractor shall assure that effective procedures and
practices are established for the administrative and physical control of
sensitive property items before and after issuance. Each contractor
shall prepare a list of the types of property considered to be
sensitive. This list, together with control procedures, shall be
provided to the property administrator for review and approval.
(b) At a minimum, controls on sensitive property shall include
property records, and memorandum receipts, bin or tool check systems, or
combinations thereof. Procedures shall provide for physical inventories
at least once each year, and methods for adjustment for inventory levels
due to losses, thefts, and damage. More frequent inventories of
sensitive property may be necessary where the value of the property,
degree of security achieved, or loss experience indicates greater
controls are required in order to protect the Government's interest.
Such procedures and practices shall be subject to review and approval by
the property administrator.
48 CFR 945.502-72 Management of precious metals.
(a) The contractor shall establish effective procedures and practices
for the administrative and physical control of precious metals.
(b) At a minimum, procedures should provide for physical protection
from theft or loss from time of receipt by the contractor to
disposition.
(c) Responsible individuals will be designated as precious metals
custodians. Records will be maintained of metals received, in use, in
stock, and which have been issued or disposed of.
(d) Perpetual inventory records shall be maintained for each type of
precious metals in terms of location, weight, and value. Metals
consumed in use shall be removed from inventory records only after
written certification by the custodian and higher level management
official that they have been consumed or contaminated beyond recovery.
The project consuming the metals shall be identified.
(e) Physical inventories of precious metals shall be taken at least
semiannually, and either witnessed by independent observers or audited
independently to verify the accuracy of the inventory. The results of
the inventory shall be promptly reported to the property administrator.
(f) All losses shall be promptly investigated and reported to the
property administrator.
(g) Excess and termination inventory precious metals shall be
reported to the DOE contracting officer for subsequent inclusion in the
DOE precious metals pool.
48 CFR 945.505-5 Records of plant equipment.
The property record requirements of FAR 45.505-5 shall include the
DOE asset type for reporting purposes.
(54 FR 27647, June 30, 1989)
48 CFR 945.505-11 Records of transportation and installation costs of
plant equipment.
The requirements of FAR 45.505-11 apply to plant equipment having a
unit cost of $1,000 or more.
48 CFR 945.505-14 Reports of Government property.
(a) The contractor shall prepare a semiannual report, as of February
28 and August 31 of each year, for each contract and subcontract
thereunder, for the following property. The reports will be submitted
to the property administrator, and are due not later than 45 days after
the end of the reporting period.
(i) Capital equipment and real property acquired or disposed of
during the period by asset type (see below).
(ii) Government-owned materials held in storage for issue when the
balance on hand at the end of the reporting period amounts to $50,000 or
more. Only the beginning and ending balance will be shown on the
report.
(b) The contractor shall submit the report of physical inventory of
capital equipment (see 945.508(b)) as a minimum, with the fourth
semiannual report after either the last physical inventory report or the
inception of the contract.
(49 FR 12032, Mar. 28, 1984, as amended at 54 FR 27647, June 30,
1989)
48 CFR 945.506 Identification.
The requirements of FAR 45.506 apply to Government property having a
unit cost of $1,000 or more.
48 CFR 945.508 Physical inventories.
The frequency of physical inventories shall be as follows:
(a) Permanently affixed plant (such as buildings, utilities, and
fences) -- Not less frequently than every 10 years.
(b) Capital equipment -- Not less frequently than every two years.
(See 945.505-14)
(c) Sensitive items -- Not less frequently than every twelve months.
(d) Materials (held under inventory control) -- Not less frequently
than every twelve months.
(e) Precious metals -- Not less frequently than every six months.
48 CFR 945.570 Motor vehicle and aircraft management.
(a) Normally, motor vehicles will not be furnished to fixed price or
cost-reimbursable contractors. Further, Government-furnished motor
vehicles may be provided to or acquired by contractors only when all of
the criteria of FAR 45.304 are met and approved in writing by the
contracting officer.
(b) Government-owned motor vehicles and aircraft shall be maintained
and utilized by contractors in the most practical and economical manner
consistent with DOE program requirements, safety consideration, fuel
economy, and applicable laws and regulations.
(c) Contractors shall conform fully to the average fuel economy
standards established by law and these regulations in the selection of
Government-furnished motor vehicles.
48 CFR 945.570-1 Classification of motor vehicles.
Because of differences in controls or limitations on possession and
use, Government vehicles are classified as follows:
(a) Passenger vehicles.
(1) Sedans and station wagons (small, subcompact, compact, mid-size,
and large).
(2) Ambulances.
(3) Buses.
(b) Trucks.
(1) Light, less than 8,500 GVWR (Gross Vehicle Weight Rating).
(i) 4 x 2
(ii) 4 x 4
(2) Light, 8,500 to 12,499 GVWR.
(i) 4 x 2
(ii) 4 x 4
(3) Medium, 12,500 to 23,999 GVWR.
(4) Heavy, 24,000 GVWR or more.
(c) Special purpose vehicles.
(1) Fire trucks.
(2) Construction vehicles.
(3) Other vehicles equipped for special purposes.
48 CFR 945.570-2 Acquisition of motor vehicles.
(a) The GSA Interagency Motor Pool System (GSA-IMPS) is the first
source of supply for providing motor vehicles to contractors; however,
contracting officer approval is required for contractors to utilize this
service.
(b) Prior approval of GSA must be obtained before --
(1) Fixed-price contractors can use the GSA-IMPS;
(2) DOE-owned motor vehicles can be furnished to any contractor in an
area served by a GSA-IMPS; and
(3) A contractor can commercially lease a motor vehicle for more than
60 days.
(c) GSA has the responsibility for acquisition of motor vehicles for
Government agencies. All requisitions (GSA Form 1781) shall be
processed in accordance with 41 CFR 101-26.501.
(d) Contractors shall submit all motor vehicle requirements to the
contracting officer for approval.
(e) The acquisition of sedans and station wagons is limited to small,
subcompact, and compact vehicles which meet Government fuel economy
standards. The acquisition of light trucks is limited to those vehicles
which meet the current fuel economy standards set by Executive Orders
12003 and 12375.
(f) Cost reimbursement contractors may be authorized by the
contracting officer to utilize GSA Federal Supply Schedule 751, Motor
Vehicle Rental, for short term rentals not to exceed 60 days, and are
required to utilize available GSA consolidated leasing programs for long
term (60 continuous days or longer) commercial leasing of passenger
vehicles and light trucks.
(g) The Property and Equipment Management Division, Headquarters
Procurement and Assistance Management Directorate (MA-422), shall
certify all requisitions prior to submittal to GSA for the following:
(1) The acquisition of sedans and station wagons.
(2) The lease (60 continuous days or longer) of any passenger
automobile.
(3) The acquisition or lease (60 continuous days or longer) of light
trucks less than 8,500 GVWR.
(h) Purchase requisitions for other motor vehicles may be submitted
directly to GSA when approved by the contracting officer.
(i) Contractors shall thoroughly examine motor vehicles acquired
under a GSA contract for defects. Any defect shall be reported promptly
to GSA, and repairs shall be made under terms of the warranty.
48 CFR 945.570-3 Selection of type of motor vehicles.
(a) All vehicles acquired for use, whether by purchase, rental,
lease, forfeiture or transfer from another agency, shall be limited to
the minimum body size, engine size, maximum fuel efficiency, and only
that operational equipment (if any) necessary to fulfill programmatic
needs.
(b) The least expensive unit overall should be used, taking into
consideration both acquisition and operating costs for units to be
purchased, and rental rates for rented or leased units.
(c) Dual purpose vehicles capable of hauling both personnel and light
cargo shall be used whenever appropriate to avoid the need for two
vehicles when one can serve both purposes. However, truck-type or van
vehicles shall not be acquired for passenger use merely to avoid
limitations on the number of passenger vehicles which may be acquired.
48 CFR 945.570-4 Identification of motor vehicles.
(a) Except as indicated in 945.570-4(b), DOE-owned and commercially
leased (for 60 continuous days or longer) motor vehicles shall have
Government license tags and the following identification, which shall be
furnished and displayed as specified by the DOE contracting officer.
''For Official Use Only U.S. Government Department of Energy''
(b) Security vehicles may be exempted from the above identification
requirements by the contracting officer. All other exemptions require
approval by the Procurement Executive.
48 CFR 945.570-5 Utilization of motor vehicles.
(a) Government-owned vehicles are to be used for official purposes
only. Contracting officers may approve home-to-work or work-to-home
transportation on a one-time exceptional basis. Home-to-work or
work-to-home transportation on a continuing basis is discouraged;
however, if justified, such use requires approval of the Head of the
Contracting Activity and a determination that the facts sufficiently
justify a conclusion of ''official purpose.'' An authorization to use a
motor vehicle for transportation between a domicile and place of
employment shall be limited to a period of sixty days. Requests for
renewals of authorizations shall be subject to the same justification as
original requests, and must also show what attempts were made during the
original period to eliminate the necessity for the request. Records,
including full justification, of such approvals will be kept on file.
(b) The contractor shall prescribe and issue, subject to approval by
the contracting officer, such local written guidelines regarding the use
of motor vehicles or aircraft for ''official purposes'' as may be
necessary and appropriate for particular operating situations.
(c) The contractor shall establish written procedures to ensure that
all motor vehicle operators are informed concerning:
(1) The statutory requirement that motor vehicles shall be used only
for ''official purposes'';
(2) Personal responsibility for safe driving and operation of motor
vehicles, and for compliance with Federal, State, and local laws and
regulations, and all accident reporting requirements;
(3) The penalties for unauthorized use of motor vehicles;
(4) Procedures for reporting accidents;
(5) The prohibition against picking up strangers or hitchhikers or
transporting family members;
(6) Care and control of credit cards; and
(7) Any other duties and responsibilities assigned to motor vehicle
operators with regard to the use, care, operation, and maintenance of
motor vehicles.
(d) Individual motor vehicle utilization cannot always be measured or
evaluated strictly on the basis of miles operated or against any
Department-wide mileage standard as stated in 41 CFR 109-38.5002. Other
measures of use will need to be considered. Accordingly, as an aid in
achieving maximum feasible utilization, local use objectives which
represent practical units of measurement for vehicle utilization and for
planning and evaluating future vehicle requirements should be
established. Such objectives should generally be initiated by the
organization involved and reviewed and adjusted as appropriate, but not
less often than annually. The objectives will take into consideration
past performance, future requirements, and special operating conditions
and should be consistent with the justifications used to obtain vehicle
authorizations. Both Department-wide and local objectives should be
used in such a manner that their use does not stimulate vehicle use for
the purpose of meeting the objectives. The ultimate standard against
which vehicle use must be measured is that the minimum number of
vehicles will be retained to satisfy program requirements.
(e) Methods and practices for achieving maximum economical
utilization of motor vehicles shall include but not be limited to --
(1) The maximum use of equipment pooling arrangements, taxicabs, or
other common service arrangements;
(2) The minimum, practicable assignment of equipment to individuals,
groups or specific organizational components;
(3) The careful selection of equipment types to permit the maximum
appropriate use of multi-purpose equipment;
(4) The rotation of equipment between high and low mileage
assignments where practicable to maintain the fleet in the best overall
replacement age and mileage balance and operating economy, and
(5) The maintenance of individual equipment use records, such as trip
tickets or vehicle logs, showing sufficiently detailed information to
evaluate appropriateness of assignment and adequacy of use being made.
If one-time use is involved, such as assignments from motor pools, the
individual's trip records must, as a minimum, identify the vehicle and
show the name of the operator, dates, destination, time of departure and
return, and mileage.
48 CFR 945.570-6 Maintenance of motor vehicles.
(a) Contractors shall maintain Government-owned vehicles according to
a systematic written procedure and in accordance with manufacturer's
specifications and the terms of the warranty and 41 CFR 101-38.10. The
requirement for a written procedure may be waived by the contracting
officer if the contractor has less than 15 Government-owned vehicles.
(b) Special attention shall be devoted to the warranty on each motor
vehicle to ensure that maximum benefits are realized from each warranty.
Defective materials and workmanship on vehicles under warranty should
be corrected under the terms of the warranty to avoid maintenance and
repair of such vehicles at Government expense.
48 CFR 945.570-7 Disposition of motor vehicles.
(a) The contractor shall dispose of DOE-owned motor vehicles as
directed by the contracting officer.
(b) DOE-owned motor vehicles may be disposed of as exchange/sale
items when directed by the contracting officer; however, a designated
DOE official must execute the Title Transfer forms.
48 CFR 945.570-8 Reporting motor vehicle data.
(a) Contractors conducting motor vehicle operations shall forward
annually (on or before December 1) to the contracting officer their plan
for acquisition of motor vehicles for the next fiscal year for review,
approval and submittal to DOE Headquarters. This plan shall conform to
the fuel efficiency standards for motor vehicles for the applicable
fiscal year, as established by Executive Orders 12003 and 12375 and as
implemented by GSA and current DOE directives. Additional guidance for
the preparation of the plan will be issued by the contracting officer,
as required.
(b) Contractors operating DOE-owned and/or commercially leased (for
60 continuous days or longer) motor vehicles shall prepare and submit
the following annual year-end reports to the contracting officer:
(1) DOE Report of Motor Vehicle Data (passenger vehicles).
(2) DOE Report of Truck Data.
(49 FR 12032, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 945.570-9 Aircraft.
(a) Purchase of aircraft requires statutory authority. Contracting
officers may authorize a lease, rental, hire, or loan of an aircraft if
the period is less than 30 days. If longer than 30 days, approval must
be obtained from the Procurement Executive.
(b) Aircraft shall be used for official purposes only.
48 CFR 945.570-9 Subpart 945.6 -- Reporting, Redistribution, and Disposal of Contractor Inventory
48 CFR 945.601 Definitions.
Personal property (See 945.101).
48 CFR 945.603 Disposal methods.
48 CFR 945.603-70 Plant clearance function.
If the plant clearance function has not been formally delegated to
another Federal agency, the contracting officer shall assume all
responsibilities of the plant clearance officer identified in FAR
Subpart 45.6.
48 CFR 945.603-71 Disposal of radioactively contaminated personal
property.
Special procedures regarding the disposal of radioactively
contaminated property may be found at 41 CFR 109-45.50.
48 CFR 945.607-2 Recovering precious metals.
(b) Contractors generating contractor inventory containing precious
metals shall identify and promptly report such items to the contracting
officer for review, approval and reporting to the DOE precious metals
pool. This includes all precious metals in any form, including shapes,
scrap or radioactively contaminated, except for silver. Only high grade
nonradioactively contaminated silver should be reported to the precious
metals pool. The Oak Ridge Operations Office is responsible for
maintaining the DOE pool. Precious metals scrap will be reported to the
DOE precious metals pool, operated by Westinghouse Materials Company of
Ohio (WMCO), P.O. Box 398704, Cincinnati, Ohio 45239.
(54 FR 27648, June 30, 1989)
48 CFR 945.608-2 Standard screening.
(b)(1) Prior to reporting excess property to GSA, all reportable
property, as identified in Federal Property Management Regulations 41
CFR 101-43.4801, shall be reported to the contracting office. The
contracting office shall transmit this information via terminal
processing or hard copy to DOE Headquarters for centralized screening in
the DOE Reportable Excess Automated Property System (REAPS). Agency
screening will begin when the item is first included in the REAPS
monthly catalog and will end upon the issuance of the following monthly
catalog.
(i) REAPS requires the inclusion of a five character address code
which identifies the reporting contractor. The address code will be
assigned by DOE Headquarters upon receipt of a completed Address
Notification form for the contractor or DOE office reporting the
property as excess.
(ii) Excess screening documents and Address Notification forms shall
be submitted to the Director, Property and Supply Division, REAPS,
Office of Policy, Procurement and Assistance Directorate, Headquarters,
by the contracting office.
(49 FR 12032, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 945.608-3 Agency screening.
Items shall be reported to the contracting office and should be
screened informally within the contracting office's complex of
contractors and with other known users of the property at other DOE
locations.
48 CFR 945.608-4 Limited screening.
(a) Prior to reporting to GSA, all nonreportable property, excluding
scrap and salvage, shall be reported to the contracting office for a 15
day informal screening within the contracting office's complex of
contractors and other appropriate DOE field locations.
48 CFR 945.608-5 Special items screening.
Prior to reporting to GSA, that property in FAR 45.608-5 (a), (b),
and (d) shall be reported and screened within DOE in accordance with
945.608-2 and 945.608-3.
(c) Printing equipment. All printing equipment excess to
requirements shall be reported to the Office of Administrative Services,
Headquarters.
48 CFR 945.608-6 Waiver of screening requirements.
(a) The Director of the Office of Review and Analysis, Procurement
and Assistance Management, is the designee who may authorize exceptions
from screening requirements in accordance with the provisions of FAR
45.608-6.
(b) A request to the Director of the Office of Review and Analysis
for the waiver of screening requirements must be submitted by the HCA
with a justification setting forth the compelling circumstances
warranting the exception.
(54 FR 27648, June 30, 1989)
48 CFR 945.610-4 Contractor inventory in foreign countries.
Contractor inventory located in foreign countries will be utilized
and disposed of in accordance with DOE-PMR 41 CFR 109-43.5, and 45.51.
(49 FR 12032, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 945.610-4 PART 947 -- TRANSPORTATION
48 CFR 945.610-4 Subpart 947.1 -- General
Sec.
947.102 Transportation insurance.
947.104-3 Cost-reimbursement contracts.
48 CFR 945.610-4 Subpart 947.5 -- Ocean Transportation by U.S. Flag
Vessels
947.506 Procedures.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 12038, Mar. 28, 1984, unless otherwise noted.
48 CFR 945.610-4 Subpart 947.1 -- General
48 CFR 947.102 Transportation insurance.
(c)(1) If special circumstances dictate the need for the Government
to buy insurance coverage, the contracting officer, after coordination
with appropriate local transportation personnel shall ascertain that (i)
there is no statutory prohibition, and (ii) funds for insurance are
available.
48 CFR 947.104-3 Cost-reimbursement contracts.
(d)(1) Include in contracts a statement requiring the contractor to
use carriers providing services commensurate with DOE program needs,
taking full advantage of special reduced rates where available.
48 CFR 947.104-3 Subpart 947.5 -- Ocean Transportation by U.S. Flag Vessels
48 CFR 947.506 Procedures.
For contract awards involving foreign suppliers which will
necessitate ocean transportation, a copy of the award document is to be
furnished to the Maritime Administration at the following address:
Inter-Agency Liaison, Division of National Cargo, Office of Market
Development, Maritime Administration, 400 7th Street, SW., Washington,
DC 20590
48 CFR 947.506 PART 949 -- TERMINATION OF CONTRACTS
48 CFR 947.506 Subpart 949.1 -- General Principles
Sec.
949.101 Authorities and responsibilities.
949.106 Fraud or other criminal conduct.
949.108-4 Authorization for subcontract settlements without approval
or ratification.
949.108-8 Assignment of rights under subcontracts.
949.111 Review of proposed settlements.
949.112-1 Partial payments.
48 CFR 947.506 Subpart 949.2 -- Additional Principles for Fixed-Price
Contracts Terminated for Convenience
949.206-1 Submission of settlement proposals.
949.206-2 Bases for settlement proposals.
48 CFR 947.506 Subpart 949.3 -- Additional Principles for
Cost-Reimbursement Contracts Terminated for Convenience
949.303-1 Submission of settlement proposal.
48 CFR 947.506 Subpart 949.5 -- Contract Termination Clauses
949.501 General.
949.505 Other termination clauses.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 12038, Mar. 28, 1984, unless otherwise noted.
48 CFR 947.506 Subpart 949.1 -- General Principles
48 CFR 949.101 Authorities and responsibilities.
The Procurement Executive shall be notified prior to taking any
action to terminate (a) contracts for the operation of Government-owned
facilities, (b) any prime contract or subcontract in excess of $10
million, and (c) any contract the termination of which is likely to
provoke unusual interest.
48 CFR 949.106 Fraud or other criminal conduct.
Any evidence of fraud or other criminal conduct in connection with
the settlement of a contract termination shall be reported in accordance
with 909.406.
48 CFR 949.108-4 Authorization for subcontract settlements without
approval or ratification.
The power to authorize a contractor to conclude settlements of its
terminated subcontracts, when the amount of settlement is more than
$10,000, but not more than $25,000, shall be exercised by contracting
officers only with the approval of the Head of the Contracting Activity.
48 CFR 949.108-8 Assignment of rights under subcontracts.
The contracting officer's determination under FAR 49.108-8(b) that it
is in the best interest of the Government to settle and pay directly a
subcontractor's termination claim is subject to the approval of the Head
of the Contracting Activity.
48 CFR 949.111 Review of proposed settlements.
(a) Heads of Contracting Activities shall establish settlement review
boards for the review of each termination settlement or determination of
amount due under the termination clause of a contract or approval or
ratification of a subcontract settlement when the action involves
$50,000 or more.
(b) Settlement review boards may be established for actions below
$50,000 when considered desirable by the Head of the Contracting
Activity or when specifically requested by the contracting officer.
(c) Proposed settlement agreements or determinations in excess of
contractual authority of Heads of Contracting Activities will be
transmitted to the Procurement Executive for review and approval.
(d) Contracting officers shall not conclude proposed settlement or
determinations until the approvals required by this subsection have been
obtained.
48 CFR 949.112-1 Partial payments.
(d) Protection of the Government's interest in partial payments, by
means other than those specified in FAR 49.112-1(d), shall be subject to
approval of the Head of the Contracting Activity.
48 CFR 949.112-1 Subpart 949.2 -- Additional Principles for Fixed-Price Contracts Terminated for Convenience
48 CFR 949.206-1 Submission of settlement proposals.
(c) When the standard forms are not appropriate for a particular
contract, the Head of the Contracting Activity may authorize
modification thereof. However, the certificate shall be substantially
as set forth in the form.
48 CFR 949.206-2 Bases for settlement proposals.
(c) Settlement proposals shall not be submitted on any basis other
than the inventory or total cost basis without the prior approval of the
Head of the Contracting Activity.
48 CFR 949.206-2 Subpart 949.3 -- Additional Principles for Cost-Reimbursement Contracts Terminated for Convenience
48 CFR 949.303-1 Submission of settlement proposal.
When necessary, the Head of the Contracting Activity may authorize
modification of the form prescribed in FAR 49.602-1. However, the
certificate shall be substantially as set forth in the form.
48 CFR 949.303-1 Subpart 949.5 -- Contract Termination Clauses
48 CFR 949.501 General.
The standard clauses set forth in FAR Subpart 49.5 are applicable as
prescribed subject to the following:
(a) Cost principles referenced in the various termination articles
shall be in accordance with Part 931.
48 CFR 949.505 Other termination clauses.
(f) The clause at 952.249-70 is suggested for use in
cost-plus-fixed-fee Architect-Engineer contracts.
48 CFR 949.505 PART 950 -- EXTRAORDINARY CONTRACTUAL ACTIONS
48 CFR 949.505 Subpart 950.1 -- General
Sec.
950.104 Reports.
48 CFR 949.505 Subpart 950.70 -- Indemnification of DOE Contractors
950.7000 Scope of subpart.
950.7001 Applicability.
950.7002 Definitions.
950.7003 Statutory indemnity.
950.7004 Authority to negotiate statutory indemnity agreements.
950.7005 Substantial nuclear incident.
950.7006 Statutory indemnity contract article.
950.7007 Contractual assurance.
950.7008 ''Representation'' for use in subcontracts and purchase
orders of prime contractor holding statuory indemnity agreement.
950.7009 Fees.
950.7010 Financial protection requirements.
950.7011 General contract authority indemnity.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 12039, Mar. 28, 1984, unless otherwise noted.
48 CFR 949.505 Subpart 950.1 -- General
48 CFR 950.104 Reports.
The information required by FAR 50.104(b) for all actions taken under
the extraordinary emergency authority shall be submitted to the
Director, Contract Business Clearance Division, Headquarters no later
than 30 days after the date of completion of processing the action. In
the event no actions were taken under Pub. L. 85-804 during the
preceding calendar year, a negative report should be submitted to the
Director, Contract Business Clearance Division, Headquarters no later
than January 20 of each year.
48 CFR 950.104 Subpart 950.70 -- Indemnification of DOE Contractors
48 CFR 950.7000 Scope of subpart.
This subpart describes the established policies concerning (a)
indemnification of DOE contractors against public liability for a
nuclear incident arising out of or in connection with the contract
activity, and (b) indemnification of DOE contractors against liability
for nonnuclear risks arising out of or in connection with the contract
activity.
48 CFR 950.7001 Applicability.
(a) With respect to indemnification against public liability for a
nuclear incident, the pertinent policies and procedures set forth in
this subpart shall be applicable in entering into indemnity agreements
with:
(1) DOE contractors engaged in the operation of prodcution or
utilization facilities; and
(2) DOE contractors whose work entails the risk of public liability
for a substantial nuclear incident.
(b) With respect to indemnification against liability for nonnuclear
risks, the pertinent policies and procedures set forth in this subpart
shall be applicable in entering into indemnity agreements with any DOE
contractors.
48 CFR 950.7002 Definitions.
DOE contractor means any DOE prime contractor, including any agency
of the Federal Government with which DOE has entered into an interagency
agreement.
Construction contractor means a DOE contractor who is constructing an
installation for DOE which, when completed, will be a production or
utilization facility.
Nuclear incident means:
(1) Any occurrence within the United States causing, within or
outside the United States, bodily injury, sickness, disease, or death,
or loss of or damage to property, or loss of use of property, arising
out of or resulting from the radioactive, toxic, explosive, or other
hazardous properties of source, special nuclear, or by-product material;
and
(2) Any such occurrence outside the United States, if such occurrence
involves a facility or device owned by, and used by or under contract
with, the United States.
Person indemnified means:
(1) With respect to a nuclear incident occurring within the United
States, the person with whom an indemnity agreement is executed and any
other person who may be liable for public liability; or
(2) With respect to any nuclear incident occurring outside the United
States, the person with whom an indemnity agreement is executed and any
other person who may be liable for public liability by reason of
activities under any contract with DOE or any project to which
indemnification under the provisions of section 170d of the Atomic
Energy Act 1954, as amended, has been extended, or under any
subcontract, purchase order, or other agreement, of any tier, under any
such contract or project.
(3) With respect to a nonnuclear incident the person with whom an
indemnity agreement is executed.
Nuclear reactor means an apparatus, other than an atomic weapon,
designed or used to sustain nuclear fission in a self-supporting chain
reaction.
Production facility means:
(1) Any nuclear reactor designed or used primarily for the formation
of plutonium or uranium 233; or
(2) Any facility designed or used for the separation of the isotopes
of uranium or the isotopes of plutonium, except laboratory scale
facilities designed or used for experimental or analytical purposes
only; or
(3) Any facility designed or used for the processing of irradiated
materials containing special nuclear material, except laboratory scale
facilities designed or used for experimental or analytical purposes
only.
Public liability means any legal liability (including liability for
loss of, or damage to, or loss of use of property which is located at
the site of and used in connection with the contract activity arising
out of or resulting from a nuclear incident) except: (1) Claims under
State or Federal workmen's compensation acts of employees of persons
indemnified, who are employed at the site of and in connection with the
activity where the nuclear incident occurs, and (2) claims arising out
of an act of war. ''Public liability'' also includes damage to property
of persons indemnified, provided that such property is covered under the
terms of any financial protection that may be required, except property
which is located at the site of and used in connection with the activity
where the nuclear incident occurs.
Utilization facility means any nuclear reactor other than one
designed or used primarily for the formation of plutonium or U 233.
(49 FR 12039, Mar. 28, 1984, as amended at 50 FR 12185, Mar. 27,
1985)
48 CFR 950.7003 Statutory indemnity.
Section 170d of the Atomic Energy Act of 1954, as amended, authorized
DOE ''to enter into agreements of indemnification with its contractors
for the construction or operation of production or utilization
facilities or other activities under contracts for the benefit of the
United States involving activities under the risk of public liability
for a substantial nuclear incident.'' Contractors identified in
950.7001(a) are eligible for such statutory indemnity.
48 CFR 950.7004 Authority to negotiate statutory indemnity agreements.
(a) Heads of Contracting Activities are authorized to negotiate
statutory indemnity agreements with contractors identified in
950.7001(a)(1).
(b) Pursuant to 950.7005, Heads of Contracting Activities may enter
into a statutory indemnity agreement whenever it has been determined
that a contractor in 950.7001(a)(2) is engaged in activities involving
the risk of public liability for a substantial nuclear incident. Such a
determination may be based upon either the risk of liability for the
occurrence of a substantial nuclear incident in the course of
performance of the contract work, or the risk of liability for a
substantial nuclear incident caused by a product delivered to or for the
DOE under the contract where such product is expected to be used in
connection with a facility or device not covered by a statutory
indemnity agreement. If, pursuant to 950.7005, a Head of a Contracting
Activity determines that the maximum conceivable damage which could
result from a nuclear incident arising in the course of a contractor's
activities falls between $1 million and $60 million, they shall submit
the proposed indemnification with a recommendation, and all supporting
data, to the Head of the Agency, or designee, for appropriate action.
48 CFR 950.7005 Substantial nuclear incident.
(a) With respect to 950.7001(a)(2), and pursuant to the provisions of
950.7004, a Head of a Contracting Activity may be required to determine
whether a contractor's activities involve the risk of public liability
for a substantial nuclear incident and thus make the contractor eligible
to obtain a statutory indemnity agreement from the DOE. The
determination by a Head of a Contracting Activity shall be based on the
criteria in paragraph (b) of this section.
(b) If, after a study of the maximum conceivable damage which can
result from an incident arising out of or in connection with the
contractor's activities, the Head of a Contracting Activity concludes
that the maximum conceivable damage per incident to property and persons
is $60 million or more, the contractor may be found to be under a risk
of public liability for a substantial nuclear incident and the Head of
the Contracting Activity is authorized to execute a statutory indemnity
agreement under such a contract. If such a study of the maximum
conceivable damage indicates a figure of $1 million or less, the
contractor should not be considered to have a risk of public liability
for a substantial nuclear incident, and therefore, shall not be made a
party to a statutory indemnity agreement. If the study indicates that
the maximum conceivable damage falls between $1 million and $60 million,
the Head of a Contracting Activity will submit the proposed
indemnification of such contractor to the Head of the Agency or designee
with a recommendation and all supporting data.
(c) The Head of the Agency or designee may take one of the following
actions:
(1) Determine that the contractor is under risk of public liability
for a substantial nuclear incident and that the contractor should be
extended a statutory indemity agreement; or
(2) Determine that the contractor should not be extended a statutory
indemnity.
(d) When statutory indemnity is not extended, the Head of the Agency
or designee may authorize the Head of a Contracting Activity to
authorize the contractor to purchase nuclear liability insurance or to
offer the contractor a general authority indemnity agreement.
48 CFR 950.7006 Statutory indemnity contract article.
The contract clause contained in 952.250-70 shall be incorporated in
all contracts in which a statutory indemnity agreement is to be included
upon a determination that the contractor is under risk of public
liability for the occurrence of a substantial nuclear incident in the
course of performance of the contract work. The contract clause
contained in 952.250-71 shall be incorporated in all contracts in which
a statutory indemnity agreement is to be included upon a determination
that the contractor is under risk of public liability only for a
substantial nuclear incident caused by a product delivered to or for the
DOE, under the contract where such product is expected to be used in
connection with a facility or device not covered by a statutory
indemnity agreement.
48 CFR 950.7007 Contractual assurance.
Heads of Contracting Activities are authorized to include assurances
that the DOE will enter into a statutory indemnity agreement with the
contractor who will operate a production or utilization facility on its
completion. Such assurances may be authorized in contracts for:
(a) Architect-engineer services in connection with the construction
of a production or utilization facility;
(b) Component parts for a production or utilization facility;
(c) Construction at a production or utilization facility, where the
work does not entail the risk of a substantial nuclear incidences; or
(d) Equipment or services which would be a part of, or contribute to,
or be used in connection with the construction or operation of a
production or utilization facility.
Assurances will be given only to those contractors and suppliers
which might be held liable in connection with a substantial nuclear
incident occurring after completion of the facility. The clause to be
used to provide contractual assurance is found in 952.250-72.
48 CFR 950.7008 ''Representation'' for use in subcontracts and purchase
orders of prime contractor holding statutory indemnity agreement.
(a) A DOE contractor with whom a statutory indemnity agreement has
been executed in the form contained in 952.250-70 may include in any of
its subcontracts and purchase orders a representation that the work
under the prime contract is covered by a statutory indemnity agreement
with the DOE, and that this indemnity covers all persons who may be
liable for public liability for any nuclear incident arising out of or
in connection with the activity under the prime contract. A suggested
form of ''representation'' that may be provided to the contractor
follows:
The contractor represents that there is included in its prime
contract with DOE an indemnity agreement, entered into by DOE under the
authority of Section 170 of the Atomic Energy Act of 1954, as amended by
Public Law 85-256 (the ''Price-Anderson Act''), a copy of which may be
obtained from the contractor (or is attached hereto); that, under said
agreement, DOE has agreed to indemnify the contractor and other persons
indemnified, including the subcontractor, against claims for public
liability (as defined in said Act) arising out of or in connection with
the contractual activity; that the indemnity applies to covered nuclear
incidents which (1) take place at a ''contract location'' (which term,
as defined in the indemnity agreement, does not include the location of
the subcontractor's plant and facilities); or (2) arise out of or in
the course of transportation of source, special nuclear or nuclear
by-product material to or from a ''contract location;'' or (3) involve
items produced or delivered under the prime contract. The obligation of
DOE to indemnify is subject to the conditions stated in the indemnity
agreement.
(b) The DOE shall not approve the inclusion, in the subcontracts and
purchase orders of an indemnified prime contractor, of any provision
whereby the prime contractor indemnifies the subcontractor or supplier
against public liability for a nuclear incident because any such
liability will be covered by the statutory indemnity agreement of the
prime contractor.
48 CFR 950.7009 Fees.
No fee will be charged a DOE contractor for a statutory indemnity
agreement.
48 CFR 950.7010 Financial protection requirements.
(a) DOE contractors with whom statutory indemnity agreements under
the authority of section 170d of the Atomic Energy Act of 1954, as
amended, are executed will not normally be required or permitted to
furnish financial protection by purchase of insurance to cover public
liability for nuclear incidents, except: (1) That DOE contractors now
covered by insurance against such liability, with the approval of the
DOE, may continue to carry such insurance; and (2) with the approval of
the Office of Industrial Relations, contractors engaged in the operation
of DOE facilities may be required or permitted to furnish financial
protection in an amount not to exceed $1 million.
(b) If nuclear liability insurance is carried by a contractor who is
a Nuclear Regulatory Commission (NRC) licensee, the DOE will pay an
equitable portion of the insurance premium under its contract (or would
include such an item in the calculation of a fixed price), but normally
a statutory indemnity agreement would not be granted under the contract.
48 CFR 950.7011 General contract authority indemnity.
(a) The DOE also has general contract authority to enter into
indemnity agreements with its contactors. Under such authority a
certain measure of protection is extended to the DOE contractor against
risk of liability, but the assumption of liability by DOE will be
expressly subject to the availability of appropriated funds. Prior to
enactment of section 170 of the Atomic Energy Act 1954, as amended, this
authority was exercised in a number of Atomic Energy Commission
contracts and this type of indemnification remains in some DOE
contracts.
(b) It is the policy of the DOE, subsequent to the enactment of
section 170, to restrict indemnity agreements with DOE contractors, with
respect to protection against public liability for a nuclear incident,
to the statutory indemnity provided under section 170. However, it is
recognized that circumstances may exist under which a DOE contractor may
be exposed to a risk of public liability for a nuclear occurrence which
would not be covered by the statutory indemnity.
(c)(1) While it is normally DOE policy to require its non-management
and operating contractors to obtain insurance coverage against public
liability for nonnuclear risks, there may be circumstances in which a
contractual indemnity may be warranted to protect a DOE non-management
and operating contractor against liability for uninsured nonnuclear
risks.
(2) It is DOE policy that, except to the extent required by the
direction of the Contracting Officer and in the case of Small Businesses
and Small Disadvantaged Businesses and non-profit subcontractors,
management and operating contractors shall not obtain reimbursement for
bonds or insurance to cover otherwise unallowable Avoidable Costs. M&O
contractors may only be reimbursed for insurance against nonnuclear risk
above the liability ceiling provided in 970.5204-55, subject to the
approval of the Contracting Officer.
(d) If circumstances as mentioned in paragraph (b) or (c) of this
section do arise, it shall be the responsibilty of the Heads of
Contracting Activities to submit to the Head of the Agency or designee
for review and decision, all pertinent information concerning the need
for, or desirability of, providing a general authority indemnity to a
DOE contractor.
(e) Where the indemnified risk is nonnuclear, the amount of general
authority indemnity extended to a fixed-price contractor should normally
have a maximum obligation equivalent to the amount of insurance that the
contractor usually carries to cover such risks in its other commerical
operations or, if the risk involved is dissimilar to those normally
encountered by the contractor, the amount that it otherwise would have
reasonably procured to insure this contract risk.
(f) In the event that a DOE contractor has been extended both a
statutory indemnity and a general authority indemnity, the general
authority indemnity will not apply to the extent that the statutory
indemnity applies.
(g) The provisons of this subsection do not restrict or affect the
policy of DOE to pay its cost-reimbursement type contractors for the
allowable cost of losses and expenses incurred in the performance of the
contact work, within the maximum amount of the contract obligation.
(49 FR 12039, Mar. 28, 1984, as amended at 56 FR 28102, June 19,
1991)
48 CFR 950.7011 PART 951 -- USE OF GOVERNMENT SOURCES BY CONTRACTORS
48 CFR 950.7011 Subpart 951.1 -- Contractor Use of Government Supply
Sources
Sec.
951.101 Policy.
951.102 Authorization to use Government supply sources.
951.103 Ordering from Government supply sources.
48 CFR 950.7011 Subpart 951.2 -- Contractor Use of Interagency Motor
Pool Vehicles
951.201 Policy.
48 CFR 950.7011 Subpart 951.70 -- Contractor Employee Travel Discounts
951.7000 Scope of subpart.
951.7001 General policy.
951.7002 Responsibilities.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 12042, Mar. 28, 1984, unless otherwise noted.
48 CFR 950.7011 Subpart 951.1 -- Contractor Use of Government Supply Sources
48 CFR 951.101 Policy.
(a) It is DOE policy that contractors performing under
cost-reimbursement contracts should meet their requirements from
Government sources of supply when these sources are available to them,
and if it is economically advantageous or otherwise in the best interest
of the Government.
48 CFR 951.102 Authorization to use Government supply sources.
(a) The Head of the Contracting Activity may authorize contractors
performing under cost-reimbursement contracts and subcontractors
performing under cost-reimbursement contracts, where all higher tier
contracts and subcontracts are cost-type, to use Government supply
sources in accordance with the requirements and procedures in FAR Part
51, DOE PMR 41 CFR 109-26, and any necessary approval from the agency
involved. This authority may be redelegated to the level of contracting
officer. Direct acquisition by the DOE, rather than by a contractor
under cost-reimbursement contracts, shall be required where deemed
necessary by the Head of the Contracting Activity in order to carry out
special requirements of appropriation acts or other applicable laws
relating to particular items.
(c)(1) The DOE central point of contact for the assignment,
correction, or deletion of FEDSTRIP activity address codes is the
Property and Equipment Management Division, Office of Policy,
Procurement and Assistance Management Directorate, Headquarters.
(e)(4)(iii) Materials, supplies, and equipment acquired from
Government sources of supply under the procedures described herein must
be used exclusively in connection with Government work, except as
otherwise authorized by the Head of the Contracting Activity.
(49 FR 12042, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 951.103 Ordering from Government supply sources.
(b) The Procurement Executive shall be informed of instances in which
GSA sources of supply are not used because of the quality of the items
available from GSA or when a Federal Supply Schedule contractor refuses
to honor an order.
48 CFR 951.103 Subpart 951.2 -- Contractor Use of Interagency Motor Pool Vehicles
48 CFR 951.201 Policy.
(a) If it is in the Government's interest, the contracting officer
may authorize cost-reimbursement contractors to obtain, for official
purposes only, interagency motor pool vehicles and related services,
including: (1) Fuel and lubricants, (2) vehicle inspection,
maintenance, and repair, (3) vehicle storage, and (4) commercially
rented vehicles for short-term use under Federal Supply Schedule
Industrial Group 751.
48 CFR 951.201 Subpart 951.70 -- Contractor Employee Travel Discounts
Source: 54 FR 17736, Apr. 25, 1989, unless otherwise noted.
48 CFR 951.7000 Scope of subpart.
The General Services Administration (GSA) and, in some cases, the
Department of Defense (DOD) Military Traffic Management Command
negotiate agreements with commercial organizations to provide certain
discounts to contractors performing travel under Government
cost-reimbursable contracts. In the case of discount air fares and
hotel/motel room rates, the GSA has established agreements with certain
airlines and thousands of hotels/motels to extend discounts which were
previously only available to Federal employees on official travel
status. DOD has negotiated agreements with car rental companies for
special rates with unlimited mileage which were also to be used by only
Federal employees on official Government business. GSA Bulletin Federal
Property Management Regulations (FPMRs) A-95, dated August 19, 1988,
makes these three travel discounts available to Government
cost-reimbursable contractors at the option of the vendor.
48 CFR 951.7001 General policy.
Contracting officers will encourage DOE cost-reimbursable contractors
(CRCs) to use Government travel discounts to the maximum extent
practicable in accordance with contractual terms and conditions.
Vendors providing the service may require that Government contractor
employees furnish a letter of identification signed by the authorizing
contracting officer. Contracting officers shall provide CRCs with a
''Standard Letter of Identification'' when appropriate to do so. An
example of a ''Standard Letter of Identification'' is included as an
attachment to GSA Bulletin A-95 and at 952.251-70(e).
(a) FPMR Temporary Regulation A-30 governs the use of contract
airlines and provides that CRCs working for the Government are
authorized, but not required, to obtain the same contract fares offered
to Federal employees if the contract air carrier has agreed to such an
arrangement. FPMR Temporary Regulation A-30 further provides that CRCs
may obtain contract fares by use of a Government Transportation Request,
Standard Form 1169, cash or personal credit card. The Federal Travel
Directory (FTD) (ISSN: 0278-0941), published monthly by GSA, identifies
air carriers that have agreed to permit CRCs to purchase contract fares
when traveling on official Government business.
(b) The Hotel/Motel Discount Section of the FTD lists all
participating lodging locations with which GSA has negotiated rates for
use by Federal travelers. The directory lists rates and facilities, and
identifies those which also offer their Federal discount rates to
Government contractors. Hotels/motels participating in travel discounts
may, at their option, extend the reduced rates to not only CRCs but to
employees of firms working under any type of Government contract.
Hotels/motels usually require identification signed by the contracting
officer (see above).
(c) Participating car rental firms offering discounted rates to
Federal travelers, including those offering discount rates to Government
contractor employees, are published in the ''Rental Car Information''
section of the FTD. Car rental firms which extend the discounted rates
to CRCs are identified and should be used as the first source of supply
for contractor car rental needs. GSA Bulletin FPMR G-173 and supplement
1 thereto provide guidelines and overall procedures to be used in
obtaining discount car rental rates. CRCs should check with the
individual car rental firms for details and identification requirements.
Accepted methods of payment include cash and personal credit cards.
48 CFR 951.7002 Responsibilities.
Contracting officers will include in all cost-reimbursable
solicitations and resulting contracts, or contract modifications, the
provision or clause, as applicable, at 952.251-70 when significant costs
involving travel by air carrier, ground transportation by rental car and
lodging at a hotel or motel will be required in connection with the
performance of the contract. Contracting officers may furnish
Government contractors with the identification letter for presentation
to contract airline, hotel/motel or car rental firm (see 951.7001
above), depending upon the requirements of the vendor.
48 CFR 951.7002 SUBCHAPTER H -- CLAUSES AND FORMS
48 CFR 951.7002 Pt. 952
48 CFR 951.7002 PART 952 -- SOLICITATION PROVISIONS AND CONTRACT CLAUSES
48 CFR 951.7002 Subpart 952.0 -- General
Sec.
952.000 Scope of part.
952.001 General policy.
48 CFR 951.7002 Subpart 952.1 -- Instructions for Using Provisions and
Clauses
952.102-1 Incorporation by reference.
48 CFR 951.7002 Subpart 952.2 -- Text of Provisions and Clauses
952.202 Clauses related to definitions.
952.202-1 Definitions.
952.204 Clauses related to administrative matters.
952.204-2 Security requirements.
952.204-70 Classification.
952.204-71 Sensitive foreign nations controls.
952.204-72 Disclosure of information.
952.204-73 Foreign ownership, control, or influence over contractor
(Representation).
952.204-74 Foreign ownership, control, or influence over contractor.
952.208 Clauses related to required sources of supply.
952.208-7 Tagging of leased vehicles.
952.208-70 Printing.
952.209 Clauses related to contractor's qualifications.
952.209-70 Organizational conflicts of interest -- disclosure or
representation.
952.209-71 Organizational conflicts of interest -- general.
952.209-72 Organizational conflicts of interest -- special clause.
952.212 Clauses related to contract delivery or performance.
952.212-70 Priorities and allocations for energy programs
(solicitations).
952.212-71 Priorities and allocations for energy programs
(contracts).
952.212-72 Uniform Reporting System.
952.212-73 Cost and schedule control systems criteria.
952.215 Clauses related to contracting by negotiation.
952.215-22 Price reduction for defective cost or pricing data.
952.215-23 Price reduction for defective cost or pricing data --
modifications.
952.215-70 Required subcontractor representations and certifications.
952.216 Clauses related to types of contracts.
952.216-7 Allowable cost and payment.
952.216-15 Predetermined indirect cost rates.
952.217-70 Acquisition of real property.
952.219 Clauses related to small business.
952.219-9 Small business and small disadvantaged business
subcontracting plan.
952.223 Clauses related to environment, conservation, and
occupational safety.
952.223-71 Safety and health (Government-owned or leased facility).
952.223-72 Radiation protection and nuclear criticality.
952.223-73 (Reserved)
952.223-74 Nuclear facility safety applicability.
952.223-75 Preservation of individual occupational radiation exposure
records.
952.224-70 Paperwork Reduction Act.
952.227 Provisions and clauses related to patents, technical data and
copyrights.
952.227-70 (Reserved)
952.227-71 Patent rights -- small business firms or nonprofit
organizations.
952.227-72 (Reserved)
952.227-73 Additional technical data requirements.
952.227-74 (Reserved)
952.227-75 Rights in technical data -- long form.
952.227-76 Rights in data -- special works.
952.227-77 Rights in technical data clause -- short form.
952.227-78 Rights in technical data -- facility.
952.227-79 Limited rights in proprietary data.
952.227-80 Technical data certification.
952.227-81 Royalty Payments Certification.
952.227-82 Rights to proposal data.
952.227-83 Rights in technical data solicitation representation.
952.227-84 Notice of right to request patent waiver.
952.231-70 Date of incurrence of cost.
952.233-2 Service of protest.
952.235-70 Key personnel.
952.236 Construction and architect-engineer contracts.
952.236-70 Administrative terms for architect-engineer contracts.
952.236-71 Inspection in Architect-Engineer contracts.
952.236-72 Nonrefundable fee for plans and specifications.
952.245 Clauses related to Government property.
952.245-2 Government property (fixed-price contracts).
952.245-5 Government property (cost-reimbursement,
time-and-materials, or labor-hour contracts).
952.247-70 Foreign travel.
952.249 Clauses related to terminaton.
952.249-70 Termination clause for cost-reimbursement
architect-engineer contracts.
952.250 Clauses related to indemnification of contractors.
952.250-70 Nuclear hazards indemnity.
952.250-71 Nuclear hazards indemnity -- product liability.
952.250-72 Indemnity assurance to architect-engineer or supplier
prior to operation of a production or utilization facility.
952.251-70 Contractor employee travel discounts.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 12042, Mar. 28, 1984, unless otherwise noted.
48 CFR 951.7002 Subpart 952.0 -- General
48 CFR 952.000 Scope of part.
This part implements FAR Part 52 which sets forth contract clauses
for use in connection with the acquisition of personal property and
nonpersonal services (including construction), and supplements, as well
as modifies, FAR Part 52 by prescribing certain modifications to be made
to FAR clauses when used in DOE contracts and specifying certain DOE
contract clauses to be used in addition to or in place of such FAR
clauses.
48 CFR 952.001 General policy.
It is DOE policy to use the prescribed FAR and DOE contract clauses
wherever practicable. Uniformity in the use of contract clauses helps
to ensure impartial treatment of all contractors, expedites negotiation
and contract review, and facilitates contract administration.
48 CFR 952.001 Supbart 952.1 -- Instructions for Using Provisions and Clauses
48 CFR 952.102-1 Incorporation by reference.
(a) Preprinted standard contract clauses (clause sets) and
solicitation representations and certifications provisions will be
maintained by the Office of Policy for use by DOE contracting activities
during the initial Federal Acquisition Regulations System
familiarization period. The clause sets contain the FAR and DEAR
clauses required for specific contract types. Contracting Activities
will be responsible for including necessary additions and alterations in
individual contracts to ascertain that the clauses are current and
appropriate to the circumstances of the individual contract. The
concept of preprinted clause sets is designed to reduce the review
burden on both the Contracting Activities and Department's contractors.
Use of the preprinted clause sets reduces the review burden for an
individual contract award since once the clause sets have been reviewed
and understood for a particular contract type, individual contact
reviews can be limited to examination of the alterations and additions
used in conjunction with the preprinted clause sets. This practice
eliminates the confusion and expense of the Department's contractors
which would be caused were each contracting activity to pursue its own
approach regarding contract clauses.
(b) At a later date, when the FAR and DEAR clause requirements are
familiar to both DOE personnel and the Department's contractors, the
Department will consider incorporation by reference. Incorporation by
reference is the practice of reducing the bulk of contract documents by
listing only the title, regulatory citation, and date of a particular
clause rather than its full text. The full text of the clause can be
obtained by referring to a copy of the Code of Federal Regulations,
Title 48, Chapter 1 for FAR clauses or Title 48, Chapter 9 for DEAR
clauses.
48 CFR 952.102-1 Subpart 952.2 -- Text of Provisions and Clauses
952.202 Clauses related to definitions.
48 CFR 952.202-1 Definitions.
(a) The contracting officer shall substitute the following for
paragraph (a) of the clause at FAR 52.202-1.
(a) The term ''Head of Agency'' means the Secretary, Deputy Secretary
or Under Secretary of the Department of Energy and the Chairman, Federal
Energy Regulatory Commission.
(b) The following shall be added as paragraph (d) except it will be
designated paragraph (c) if Alternate I of the clause is used.
(d) The term ''DOE'' means the Department of Energy and ''FERC''
means the Federl Energy Regulatory Commission.
(49 FR 12042, Mar. 28, 1984, as amended at 50 FR 12185, Mar. 27,
1985)
48 CFR 952.204 Clauses related to administrative matters.
48 CFR 952.204-2 Security requirements.
The following clause shall be included in contracts entered into
under section 31 (research assistance) or 41 (ownership and operation of
production facilities) of the Atomic Energy Act of 1954, as amended, and
in other contracts and subcontracts, which involve or are likely to
involve classified information.
(a) Responsibility. It is the contractor's duty to safeguard all
classified information, special nuclear material, and other DOE
property. The contractor shall, in accordance with DOE security
regulations and requirements, be responsible for safeguarding all
classified information, and protecting against sabotage, espionage, loss
and theft, the classified documents and material in the contractor's
possession in connection with the performance of work under this
contract. Except as otherwise expressly provided in this contract, the
contractor shall, upon completion or termination of this contract,
transmit to DOE any classified matter in the possession of the
contractor or any person under the contractor's control in connection
with performance of this contract. If retention by the Contractor of
any classified matter is required after the completion or termination of
the contract and such retention is approved by the contracting officer,
the contractor will complete a certificate of possession to be furnished
to DOE specifying the classified matter to be retained. The
certification shall identify the items and types or categories of matter
retained, the conditions governing the retention of the matter, and the
period of retention, if known. If the retention is approved by the
contracting officer, the security provisions of the contract will
continue to be applicable to the matter retained. Special nuclear
material will not be retained after the completion or termination of the
contract.
(b) Regulations. The contractor agrees to conform to all security
regulations and requirements of DOE.
(c) Definition of classified information. The term ''classified
information' means Restricted Data, Formerly Restricted Data, or
National Security Information.
(d) Definition of restricted data. The term ''Restricted Data''
means all data concerning (1) design, manufacture, or utilization of
atomic weapons; (2) the production of special nuclear material; or (3)
the use of special nuclear material in the production of energy, but
shall not include data declassified or removed from the Restricted Data
category pursuant to Section 142 of the Atomic Energy Act of 1954, as
amended.
(e) Definition of formerly restricted data. The term ''Formerly
Restricted Data'' means all data removed from the Restricted Data
category under section 142 d. of the Atomic Energy Act of 1954, as
amended.
(f) Definition of National Security Information. The term ''National
Security Information'' means any information or material, regardless of
its physical form or characteristics, that is owned by, produced for or
by, or is under the control of the United States Government, that has
been determined pursuant to Executive Order 12356 or prior Orders to
require protection against unauthorized disclosure, and which is so
designated.
(g) Definition of Special Nuclear Material (SNM). SNM means: (1)
Plutonium, uranium enriched in the isotope 233 or in the isotope 235,
and any other material which pursuant to the provisions of Section 51 of
the Atomic Energy Act of 1954, as amended, has been determined to be
special nuclear material, but does not include source material; or (2)
any material artificially enriched by any of the foregoing, but does not
include source material.
(h) Security clearance of personnel. The contractor shall not permit
any individual to have access to any classified information, except in
accordance with the Atomic Energy Act of 1954, as amended, Executive
Order 12356, and the DOE's regulations or requirements applicable to the
particular level and category of classified information to which access
is required.
(i) Criminal liability. It is understood that disclosure of any
classified information relating to the work or services ordered
hereunder to any person not entitled to receive it, or failure to
safeguard any classified information that may come to the contractor or
any person under the contractor's control in connection with work under
this contract, may subject the contractor, its agents, employees, or
subcontractors to criminal liability under the laws of the United
States. (See the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011
et seq.; 18 U.S.C. 793 and 794; and E.O. 12356.)
(j) Subcontracts and purchase orders. Except as otherwise authorized
in writing by the contracting officer, the contractor shall insert
provisions similar to the foregoing in all subcontracts and purchase
orders under this contract.
(49 FR 12042, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984, as amended
at 52 FR 38425, Oct. 16, 1987)
48 CFR 952.204-70 Classification.
The following clause shall be included in all contracts which involve
classified information:
In the performance of the work under this contract, the contractor
shall ensure that an Authorized Original Classifier or Derivative
Classifier shall assign classifications to all documents, material, and
equipment originated or generated under the contract in accordance with
classification regulations and guidance furnished to the contractor by
the DOE. Every subcontract and purchase order issued hereunder
involving the origination or generation of classified documents,
material, or equipment shall include a provision to the effect that in
the performance of such subcontract or purchase order, the subcontractor
or supplier shall ensure that an Authorized Original Classifier or
Derivative Classifier shall assign classifications to all such
documents, materials, and equipment in accordance with classification
regulations and guidance furnished to such subcontractor or supplier by
the contractor.
48 CFR 952.204-71 Sensitive foreign nations controls.
In accordance with 904.404(d)(3), the contracting officer shall
include the following clause:
(a) In connection with any activities in the performance of this
contract, the contractor agrees to comply with the ''Sensitive Foreign
Nations Controls'' requirements attached to this contract, relating to
those countries, which may from time to time, be identified to the
contractor by written notice as sensitive foreign nations. The
contractor shall have the right to terminate its performance under this
contract upon at least 60 days' prior written notice to the contracting
officer if the contractor determines that it is unable, without
substantially interfering with its polices or without adversely
effecting its performance to continue performance of the work under this
contract as a result of such notification. If the contractor elects to
terminate performance, the provisions of this contract regarding
termination for the convenience of the Government shall apply.
(b) The provisions of this clause shall be included in any
subcontracts.
(49 FR 12042, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 952.204-72 Disclosure of information.
This clause may be used in place of the clauses entitled
''Security,'' 952.204-2, and ''Classification,'' 952.204-70, in
contracts with educational institutions for research involving nuclear
technology which could but is not expected to produce classified
information or restricted data:
(a) It is mutually expected that the activities under this contract
will not involve classified information. It is understood, however,
that if in the opinion of either party, this expectation changes prior
to the expiration or terminating of all activities under this contract,
said party shall notify the other party accordingly in writing without
delay. In any event, the contractor shall classify, safeguard, and
otherwise act with respect to all classified information in accordance
with applicable law and the requirements of DOE, and shall promptly
inform DOE in writing if and when classified information becomes
involved, or in the mutual judgment of the parties it appears likely
that classified information or material may become involved. The
contractor shall have the right to terminate performance of the work
under this contract and in such event the provisions of this contract
respecting termination for the convenience of the Government shall
apply.
(b) The contractor shall not permit any individual to have access to
classified information except in accordance with the Atomic Energy Act
1954, as amended, Executive Order 12356, and DOE's regulations or
requirements.
(c) The term ''Restricted Data'' as used in this article means all
data concerning the design, manufacture, or utilization of atomic
weapons, the production of special nuclear material or the use of
special nuclear material in the production of energy, but shall not
include data declassified or removed from the Restricted Data category
pursuant to section 142 of the Atomic Energy Act of 1954, as amended.
(49 FR 12042, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 952.204-73 Foreign ownership, control, or influence over
contractor (Representation).
As prescribed in 904.7005(a), insert the following provision in all
solicitations for contracts subject to the provisions of 904.70.
(a) For purposes of this provision, a foreign interest is defined as
any of the following:
(1) A foreign government or foreign government agency;
(2) Any form of business enterprise organized under the laws of any
country other than the United States or its possessions;
(3) Any form of business enterprise organized or incorporated under
the laws of the U.S., or a State or other jurisdiction within the U.S.,
which is owned, controlled, or influenced by a foreign government,
agency, firm, corporation, or person; or
(4) Any person who is not a U.S. citizen.
(b) Foreign ownership, control, or influence (FOCI) means the
situation where the degree of ownership, control, or influence over a
contractor by a foreign interest is such that a reasonable basis exists
for concluding that compromise of classified information or significant
quantity of special nuclear material as defined in 10 CFR Part 710 may
result.
(c) If the offeror/bidder has not previously submitted responses to
the following questions to DOE as part of the facility security
clearance process, then it shall answer the following questions. Answer
each question in either the ''yes'' or ''no'' column. If the answer is
yes, furnish in detail on a separate sheet of paper all the information
requested in parentheses. Copies of information which responds to these
questions and which was submitted to other Government agencies may be
submitted as responses to these questions if the earlier responses are
accurate, complete, and current.
( ) The offeror/bidder certifies that the entries made above are
accurate, complete, and current to the best of my knowledge and belief
and are made in good faith.
( ) The offeror/bidder certifies that the information requested above
has previously been submitted to DOE as required for a facility security
clearance and that the information is accurate, complete and current.
Date Certified
By
Offeror/Bidder
Title
Address
Signature and Date
(d) Prior to award of a contract under this solicitation, the DOE
must determine that award of the contract to the offeror/bidder will not
pose an undue risk to the common defense and security as a result of its
access to classified information or a significant quantity of special
nuclear material in the performance of the contract. In making the
determination, the contracting officer may consider a voting trust or
other arrangements proposed by the offeror/bidder to mitigate or avoid
FOCI. The contracting officer may require the offeror/bidder to submit
such additional information as deemed pertinent to this determination.
(e) The offeror/bidder shall require any subcontractors having access
to classified information or a significant quantity of special nuclear
material to submit the certifications in (c) above directly to the DOE
contracting officer.
(f) Information submitted by the offeror/bidder in response to the
questions in (c) above is to be used solely for purposes of evaluating
foreign ownership, control, or influence and shall be treated by DOE, to
the extent permitted by law, as business or financial information
submitted in confidence.
(49 FR 12042, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984, as amended
at 56 FR 41965, Aug. 26, 1991)
48 CFR 952.204-74 Foreign ownership, control, or influence over
contractor.
As prescribed in 904.7005(b), insert the following contract clause in
new contracts and contract modifications to existing contracts subject
to 904.70.
(a) For purposes of this clause, a foreign interest is defined as any
of the following:
(1) A foreign government or foreign government agency;
(2) Any form of business enterprise organized under the laws of any
country other than the United States or its possessions;
(3) Any form of business enterprise organized or incorporated under
the laws of the U.S., or a State or other jurisdiction within the U.S.,
which is owned, controlled, or influenced by a foreign government,
agency, firm, corporation or person; or
(4) Any person who is not a U.S. citizen.
(b) Foreign ownership, control, or influence (FOCI) means the
situation where the degree of ownership, control, or influence over a
contractor by a foreign interest is such that a reasonable basis exists
for concluding that compromise of classified information, special
nuclear material as defined in 10 CFR Part 710, may result.
(c) For purposes of this clause, subcontractor means any
subcontractor at any tier and the term ''contracting officer'' shall
mean DOE contracting officer. When this clause is included in a
subcontract, the term ''contractor'' shall mean subcontractor and the
term ''contract'' shall mean subcontract.
(d) The contractor shall immediately provide the contracting officer
written notice of any changes in the extent and nature of FOCI over the
contractor which would affect the answers to the questions presented in
DEAR 952.204-73. Further, notice of changes in ownership or control
which are required to be reported to the Securities and Exchange
Commission, the Federal Trade Commission, or the Department of Justice
shall also be furnished concurrently to the contracting officer.
(e) In those cases where a contractor has changes involving FOCI, the
DOE must determine whether the changes will pose an undue risk to the
common defense and security. In making this determination, the
contracting officer shall consider proposals made by the contractor to
avoid or mitigate foreign influences.
(f) If the contracting officer at any time determines that the
contractor is, or is potentially, subject to FOCI, the contractor shall
comply with such instructions as the contracting officer shall provide
in writing to safeguard any classified information or significant
quantity of special nuclear material.
(g) The contractor agrees to insert terms that conform substantially
to the language of this clause including this paragraph (g) in all
subcontracts under this contract that will require access to classified
information or a significant quantity of special nuclear material.
Additionally, the contractor shall require such subcontractors to submit
a completed certification required in DEAR 952.204-73 prior to award of
a subcontract. Information to be provided by a subcontractor pursuant
to this clause may be submitted directly to the contracting officer.
(h) Information submitted by the contractor or any affected
subcontractor as required pursuant to this clause shall be treated by
DOE to the extent permitted by law, as business or financial information
submitted in confidence to be used solely for purposes of evaluating
FOCI.
(i) The requirements of this clause are in addition to the
requirement that a contractor obtain and retain the security clearances
required by the contract. This clause shall not operate as a limitation
on DOE's rights, including its rights to terminate this contract.
(j) The contracting officer may terminate this contract for default
either if the contractor fails to meet obligations imposed by this
clause, e.g., provide the information required by this clause, comply
with the contracting officer's instructions about safeguarding
classified information, or make this clause applicable to
subcontractors, or if, in the contracting officer's judgment, the
contractor creates an FOCI situation in order to avoid performance or a
termination for default. The contracting officer may terminate this
contract for convenience if the contractor becomes subject to FOCI and
for reasons other than avoidance of performance of the contract, cannot,
or chooses not to, avoid or mitigate the FOCI problem.
952.208 Clauses related to required sources of supply.
48 CFR 952.208-7 Tagging of leased vehicles.
Insert the following clause when leasing commercial vehicles for
periods in excess of 60 days.
(a) DOE intends to use U.S. Government license tags.
(b) While it is the intention that vehicles leased hereunder shall
operate on Federal tags, the DOE reserves the right to utilize State
tags if necessary to accomplish its mission. Should State tags be
required, the contractor shall furnish the DOE the documentation
required by the State to acquire such tags.
48 CFR 952.208-70 Printing.
Title 44, United States Code, ''Public Printing and Documents,''
establishes policies regarding public printing and documents within the
Federal Government. It provides that public printing will be
accomplished by the Government Printing Office, its regional offices or
authorized departmental printing plants. It provides a limited
exemption for contractors. Requirements exceeding that limitation are
to be accomplished utilizing Government resources. To facilitate this,
contracting officers shall furnish the necessary forms and instructions
to contractors, as called for by DOE Order 1340.1A, and include the
following clause in all contracts:
The contractor shall not engage in, nor subcontract for, any printing
(as that term is defined in Title I of the U.S. Government Printing and
Binding Regulations in effect on the effective date of this contract) in
connection with the performance of work under this contract. Provided,
however, that performance of a requirement under this contract involving
the duplication of less than 5,000 copies of a single unit, or no more
than 25,000 units in the aggregate of multiple units, will not be deemed
to be printing. A unit is defined as one sheet, size 8 1/2 by 11 inches
one side only, one color. A requirement is defined as a single
publication document.
(1) The term ''printing'' includes the following processes:
composition, plate making, presswork, binding, microform publishing, or
the end items produced by such processes.
(2) If fulfillment of the contract will necessitate reproduction in
excess of the limits set forth above, the contractor shall notify the
contracting officer in writing and obtain the contracting officer's
approval prior to acquiring on DOE's behalf production, acquisition, and
dissemination of printed matter. Such printing must be obtained from
the Government Printing Office (GPO), a contract source designated by
GPO or a Joint Committee on Printing authorized federal printing plant.
(3) Printing services not obtained in compliance with this guidance
will result in the cost of such printing being disallowed.
(4) The Contractor will include in each of his subcontracts hereunder
a provision substantially the same as this clause including this
paragraph (4).
(49 FR 12042, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984)
48 CFR 952.209 Clauses related to contractor's qualifications.
48 CFR 952.209-70 Organizational conflicts of interest -- disclosure or
representation.
Use the following solicitation provision under the circumstances
described at 909.570.
It is Department of Energy policy to avoid situations which place an
offeror in a position where its judgment may be biased because of any
past, present, or currently planned interest, financial or otherwise,
the offeror may have which relates to the work to be performed pursuant
to this solicitation or where the offeror's performance of such work may
provide it with an unfair competitive advantage. (As used herein,
''offeror'' means the proposer or any of its affiliates or proposed
consultants or subcontractors of any tier.) Therefore:
(a) The offeror shall provide a statement which describes in a
concise manner all relevant facts concerning any past, present or
currently planned interest (financial, contractural, organizational, or
otherwise) relating to the work to be performed hereunder and bearing on
whether the offeror has a possible organizational conflict of interest
with respect to (1) being able to render impartial, technically sound,
and objective assistance or advice, or (2) being given an unfair
competitive advantage. The offeror may also provide relevant facts that
show how its organizational structure and/or management systems limit
its knowledge of possible organizational conflicts of interest relating
to other divisions or sections of the organization and how that
structure or system would avoid or mitigate such organizational
conflict.
(b) In the absence of any relevant interests referred to above, the
offeror shall submit a statement certifying that to its best knowledge
and belief no such facts exist relevant to possible organizational
conflicts of interest. Proposed consultants and subcontractors are
responsible for submitting information and may submit it directly to the
contracting officer.
(c) The Department will review the statement submitted and may
require additional relevant information from the offeror. All such
information, and any other relevant information known to the Department,
will be used to determine whether an award to the offeror may create an
organizational conflict of interest is found to exist, the Department
may (1) impose appropriate conditions which avoid such conflict, (2)
disqualify the offeror, or (3) determine that it is otherwise in the
best interest of the United States to contract with the offeror by
including appropriate conditions mitigating such conflict in the
contract awarded.
(d) The refusal to provide the disclosure or representation and any
additional information as required shall result in disqualification of
the offeror for award. The nondisclosure or misrepresentation of any
relevant interest may also result in the disqualification of the offeror
for award, or if such nondisclosure or misrepresentation is discovered
after award, the resulting contract may be terminated for default. The
offeror may also be disqualified from subsequent related Department
contracts, and be subject to such other remedial action as may be
permitted or provided by law or in the resulting contract. The
attention of the offeror in complying with this provision is directed to
18 U.S.C. 1001.
(e) Depending on the nature of the contract activities, the offeror
may, because of possible organizational conflicts of interest, propose
to exclude specific kinds of work from the statement, unless the
solicitation specifically prohibits such exclusion. Any such proposed
exclusion by an offeror shall be considered by the Department in the
evaluation of proposals, and if the Department considers the proposed
excluded work to be an essential or integral part of the required work,
the proposal may be rejected as unacceptable.
(f) No award shall be made until the disclosure or representation has
been evaluated by the Government. Failure to provide the disclosure or
representation will be deemed to be a minor informality (FAR 14.405) and
the offeror or contractor shall be required to promptly correct the
omission.
48 CFR 952.209-71 Organizational conflicts of interest -- general.
Insert the following contract clause under the circumstances
described at 909.570.
(a) The contractor warrants that, to the best of his knowledge and
belief, and except as otherwise disclosed, there are no relevant facts
which could give rise to organizational conflicts of interest, as
defined in 909.570 or that the contractor has disclosed all relevant
information.
(b) The contractor agrees that, if after award, an organizational
conflict of interest with respect to this contract is discovered, an
immediate and full disclosure in writing shall be made to the
Contracting Officer which shall include a description of the action
which the contractor has taken or proposes to take to avoid or mitigate
such conflicts. The Department may, however, terminate the contract for
its convenience if it deems such termination to be in the best interest
of the Government.
(c) In the event that the contractor was aware of an organizational
conflict of interest prior to the award of this contract and did not
disclose the conflict to the contracting officer, the Government may
terminate the contract for default.
(d) The provisions of this clause shall be included in all
subcontracts for work to be performed similar to the service provided by
the prime contractor, and the terms ''contract,'' ''contractor,'' and
''contracting officer'' modified appropriately to preserve the
Government's rights.
(e) Prior to a contract modification when the statement of work is
modified to add new work, the period of performance is significantly
increased, or the parties to the contract are changed, the Department
will request and the contractor is required to submit either an
organizational conflict of interest disclosure or representation or an
update of the previously submitted disclosure or representation.
48 CFR 952.209-72 Organizational conflicts of interest -- special
clause.
Insert the following contract clause under the circumstance described
at 909.570.
(a) Purpose. The primary purpose of this clause is to aid in
ensuring that the contractor (1) is not biased because of its past,
present, or currently planned interests (financial, contractual,
organizational, or otherwise) which relate to the work under this
contract, and (2) does not obtain any unfair competitive advantage over
other parties by virtue of its performance of this contract.
(b) Scope. The restrictions described herein shall apply to
performance or participation by the contractor and any of its affiliates
or their successors in interest (hereinafter collectively referred to as
''contractor'') in the activities covered by this clause as a prime
contractor, subcontractor, cosponsor, joint venturer, consultant, or in
any similar capacity.
(1) Technical consulting and management support services.
(i) The contractor shall be ineligible to participate in any capacity
in Department contracts, subcontracts, or proposals therefor (solicited
or unsolicited) which stem directly from the contractor's performance of
work under this contract. Furthermore, unless so directed in writing by
the contracting officer, the Contractor shall not perform any technical
consulting or management support services work under this contract on
any of its products or services or the products or services of another
firm if the contractor is or has been substantially involved in their
development or marketing. Nothing in this subparagraph shall preclude
the contractor from competing for follow-on contracts for technical
consulting and management support services.
(ii) If the contractor under this contract prepares a complete or
essentially complete statement of work or specifications to be used in
competitive acquisitions, the contractor shall be ineligible to perform
or participate in any capacity in any contractual effort which is based
on such statement of work or specifications. The contractor shall not
incorporate its products or services in such statement of work or
specifications unless so directed in writing by the contracting officer,
in which case the restriction in this subparagraph shall not apply.
(iii) Nothing in this paragraph shall preclude the contractor from
offering or selling its standard commercial items to the Government.
(2) Access to and use of information.
(i) If the contractor, in the performance of this contract, obtains
access to information, such as Department plans, policies, reports,
studies, financial plans, internal data protected by the Privacy Act of
1974 (Pub. L. 93-579), or data which has not been released or otherwise
made available to the public, the contractor agrees that without prior
written approval of the contracting officer it shall not: (a) Use such
information for any private purpose unless the information has been
released or otherwise made available to the public; (b) compete for
work for the Department based on such information for a period of six
(6) months after either the completion of this contract or until such
information is released or otherwise made available to the public,
whichever is first; (c) submit an unsolicited proposal to the
Government which is based on such information until one year after such
information is released or otherwise made available to the public; and
(d) release such information unless such information has previously been
released or otherwise made available to the public by the Department.
(ii) In addition, the contractor agrees that to the extent it
receives or is given access to proprietary data, data protected by the
Privacy Act of 1974 (Pub. L. 93-579), or other confidential or
privileged technical, business, or financial information under this
contract, it shall treat such information in accordance with any
restrictions imposed on such information.
(iii) The contractor shall have, subject to patent, data, and
security provisions of this contract, the right to use technical data it
first produces under this contract for its private purpose consistent
with the Rights in Data provisions of this contract.
(c) Disclosure after award. (1) The contractor agrees that if after
award it discovers an organizational conflict of interest with respect
to this contract, an immediate and full disclosure shall be made in
writing to the contracting officer which shall include a description of
the action which the contractor has taken or proposes to take to avoid
or mitigate such conflicts.
The Department may, however, terminate the contract for convenience
if it deems such termination to be in the best interest of the
Government.
(2) In the event that the contractor was aware of an organizational
conflict of interest prior to the award of this contract and did not
disclose the conflict to the contracting officer, the Department may
terminate the contract for default.
(d) Subcontracts. (1) The contractor shall include this clause,
including this paragraph, in subcontracts of any tier which involve
performance or work of the type specified in (b)(1) of this section or
access to information of the type covered in (b)(2) of this section.
The terms ''contract'', ''contractor'' and ''contracting officer'' shall
be appropriately modified to preserve the Government's rights.
(2) If a subcontract is to be issued for evaluation services or
activities, technical consulting or management support services work as
defined at 909.570, the contractor shall obtain for the Department a
disclosure statement or representation, in accordance with DOE
regulations in effect at the time, from each intended subcontractor or
consultant. The contractor shall not enter into any subcontract nor
engage any consultant unless the contracting officer shall have first
notified the contractor that there is little or no likelihood that an
organizational conflict of interest exists or that despite the existence
of a conflict of interest the award is in the best interest of the
Government.
(e) Remedies. For breach of any of the above restrictions or for
nondisclosure or misrepresentation of any relevant facts required to be
disclosed concerning this contract, the Government may terminate the
contract for default, disqualify the contractor for subsequent related
contractual efforts and pursue such other remedies as may be permitted
by law or this contract.
(f) Waiver. Requests for waiver under this clause shall be directed
in writing to the contracting officer and shall include a full
description of the requested waive and the reasons in support thereof.
If it is determined to be in the best interests of the Government, the
contracting officer shall grant such a waiver in writing.
(g) Modifications. Prior to a contract modification when the
statement of work is modified to add new work, the period of performance
is significantly increased, or the parties to the contract are changed,
the Department will request and the contractor is required to submit
either an organizational conflict of interest disclosure or
representation or an update of the previously submitted disclosure or
representation.
(49 FR 12042, Mar. 28, 1984, as amended at 52 FR 38425, Oct. 16,
1987)
952.212 Clauses related to contract delivery or performance.
48 CFR 952.212-70 Priorities and allocations for energy programs
(solicitations).
As prescribed in 912.304(a), insert the following provision in
solicitations that will result in the award of a contract in support of
DOE atomic energy programs:
Contracts or purchase orders awarded as a result of this solicitation
shall be assigned a DO-Rating; DX-Rating; and certified for
national defense use in accordance with the Defense Priorities and
Allocations System (DPAS) regulation (15 CFR Part 350) (Contracting
officer check appropriate box).
As prescribed in 912.304(d), insert the following provision in
solicitations in support of a program or project which may be determined
to maximize domestic energy supplies:
Contracts or purchase orders awarded as a result of this solicitation
may be eligible for priorities and allocations support in accordance
with 10 CFR Part 216 and section 101(c) of the Defense Production Act of
1950, as amended.
(52 FR 38425, Oct. 16, 1987)
48 CFR 952.212-71 Priorities and allocations for energy programs
(contracts).
As prescribed in 912.304(b), insert the following clause in contracts
and purchase orders that are placed in support of authorized DOE atomic
energy programs pursuant to the Atomic Energy Act of 1954, as amended:
The Contractor shall follow the provisions of Defense Priorities and
Allocations System (DPAS) regulation (15 CFR Part 350) in obtaining
controlled materials and other products and materials needed to fill
this contract.
As prescribed in 912.304(e), insert the following clause in contracts
if they are placed in support of programs or projects which may be
determined to maximize domestic energy supplies:
(a) This contract may be eligible for priorities and allocations
support, as provided for by section 101(c) of the Defense Production Act
of 1950, as amended by the Energy Policy and Conservation Act (Pub. L.
94-163, 42 U.S.C. 6201 et seq.) if its purpose is determined to be to
maximize domestic energy supplies. Eligibility is dependent on an
executive decision on a case-by-case basis with the decision being
jointly made by the Departments of Energy and Commerce.
(b) DOE regulations regarding material allocations and priority
performance under contracts or orders to maximize domestic energy
supplies can be found at Part 216 of Title 10 of the Code of Federal
Regulations (10 CFR Part 216).
(c) Additional guidance is provided by DOE Publication MA-0192,
''Priorities and Allocations Support for Energy: Keeping Energy
Programs on Schedule,'' dated August 1985, as it may from time to time
be revised. Copies may be obtained by written request to: Department
of Energy, Office of Scientific and Technical Information (OSTI), Post
Office Box 62, Oak Ridge, Tennessee 37830.
(52 FR 38426, Oct. 16, 1987)
48 CFR 952.212-72 Uniform Reporting System.
Reporting on cost, schedule, and technical performance related to DOE
contracts (excluding special research contracts and management and
operating contracts) is controlled by DOE Order 1332.1A, Uniform
Reporting System, of October 15, 1985, or any later version of the Order
in effect on the effective date of the contract, and by 5 CFR 1320.6. As
discussed in DEAR 904.601-71, the following clause is to be included in
a contract when plans and reports are required under the Uniform
Reporting System:
Contractor shall prepare and submit (postage prepaid) the plans and
reports indicated on the DOE Form 1332.1, Reporting Requirements
Checklist or amendments to this checklist included in this contract, to
the addressees and in the specified number of copies as designated in
the attachment to the checklist. The contractor shall prepare the
specified plans and reports in accordance with the formats and structure
set forth in DOE Order 1332.1A, or any later version in effect on the
effective date of the contract. The contractor shall be responsible for
levying appropriate reporting requirements on any subcontractors in such
a manner to ensure that data submitted by the subcontractor to the
contractor is timely and compatible with the data elements that the
contractor is responsible for submitting to DOE. Plans and reports
submitted in compliance with this clause are in addition to any other
reporting requirements of this contract.
(52 FR 28717, Aug. 3, 1987)
48 CFR 952.212-73 Cost and schedule control systems criteria.
Certain DOE projects are of such significance and magnitude that
responsible management calls for enhanced visibility of contractor cost
and schedule performance as well as more formalized data to document
their progress and to aid in decisions regarding their continuation.
Any contract with a total estimated cost in excess of $50 million shall
require full implementation of the DOE Cost and Schedule Control Systems
Criteria. Selected projects between $2 million and $50 million may
benefit from modified implementation of such a control system. In those
instances where the DOE Cost and Schedule Control System Criteria are to
be utilized, the contracting officer shall provide for this by including
the ''Cost and Schedule Control Systems Criteria for Contract
Performance Measurement -- Implementation Guide'' in the solicitation
and shall include the following clause in the contract:
(a) In the performance of this contract, the contractor shall
establish, maintain, and use cost and schedule control systems
(management control systems) meeting the criteria set forth in the
contract and as described in detail in ''Cost and Schedule Control
Systems Criteria for Contract Performance Measurement -- Implementation
Guide,'' annexed hereto and hereinafter referred to as the ''Guide.''
Prior to acceptance by the contracting officer and within ---- calendar
days after contract award, the contractor shall be prepared to
demonstrate systems operation to the Government to verify that the
proposed systems meet the designated criteria. As a part of the review
procedures, the contractor shall furnish the Government a description of
the cost and schedule control systems applicable to this contract in
such form and detail as indicated by the Guide, or as required by the
contracting officer. The contractor agrees to provide access to all
pertinent records, data, and plans as requested by representatives of
the Government for the conduct of systems review.
(b) The description of the management control systems accepted by the
contracting officer, identified by title and date, shall be referenced
in the contract. Such systems shall be maintained and used by the
contractor in the performance of this contract.
(c) Contractor changes to the reviewed systems shall be submitted for
review and approval as required by the contracting officer. When
contracting officer approval is required, the contracting officer shall
advise the contractor of the acceptability of such changes within sixty
(60) days after receipt from the contractor. When systems existing at
the time of contract award do not comply with the designated criteria,
adjustments necessary to assure compliance will be made at no change in
contract price or fee.
(d) The contractor agrees to provide access to all pertinent records
and data requested by the contracting officer, or duly authorized
representative, for the purpose of permitting Government surveillance to
insure continuing application of the accepted systems to this contract.
Deviations from the systems description identified during contract
performance shall be corrected as directed by the contracting officer.
(e) The contractor shall require that each selected subcontractor, as
mutually agreed to between the Government and the contractor and as set
forth in the schedule of this contract, meet the criteria for cost and
schedule control systems as set forth in subcontract and shall
incorporate in all such subcontracts adequate provisions for review and
surveillance of subcontractor's systems to be carried out by the prime
contractor, or by the Government when requested by either the prime or
subcontractor.
(49 FR 12042, Mar. 28, 1984, as amended at 56 FR 41965, Aug. 26,
1991)
952.215 Clauses related to contracting by negotiation.
48 CFR 952.215-22 Price reduction for defective cost or pricing data.
As prescribed in 915.804-8(a), when contracting by negotiation,
include the clause at FAR 52.215-22, Price Reduction for Defective Cost
or Pricing Data, in contracts when certified cost or pricing data was
obtained.
48 CFR 952.215-23 Price reduction for defective cost or pricing data --
modifications.
As prescribed in 915.804-8(b), insert the clause at FAR 52.215-23,
Price Reduction for Defective Cost or Pricing Data -- Modifications, in
solicitations and contracts when the clause at FAR 52.215-22 has not
been included.
(50 FR 12185, Mar. 27, 1985)
48 CFR 952.215-70 Required subcontractor representations and
certifications.
In accordance with 914.201-5(b) or 915.406-5(b), include the
following notice at Section L of the uniform contract format in
solicitations which contemplate award of contracts expected to include
any of the clauses entitled Small Business and Small Disadvantaged
Business Concern Subcontracting Plan, DEAR 952.219-9, Organizational
Conflicts of Interest-General, 952.209-71 of this chapter,
Organizational Conflicts of Interest-Special Clause, 952.209-72 of this
chapter, Equal Opportunity, FAR 52.222-26, Clean Air and Water, FAR
52.223-1, Buy America Act-Supplies, FAR 52.225-3, or Buy America
Act-Construction Materials, FAR 52.225-5.
Bidders or offerors are required to obtain the representations and
certifications listed below from subcontractors prior to the award of
any subcontract for furnishing supplies or services under the prime
contract:
(1) Small Business Concern Representation, FAR 52.219-1, Small
Disadvantaged Business Concern Representation, FAR 52.219-2, if the
prime contract contains the Small Business and Small Disadvantaged
Business Subcontracting Plan clause from DEAR 952.219-9;
(2) Organizational Conflicts of Interest Disclosure and
Representation, DEAR 952.209-70, if the prime contract contains either
of the clauses entitled Organizational Conflicts of Interest-General,
DEAR 952.209-71, or Organizational Conflicts of Interest-Special Clause,
DEAR 952.209-72;
(3) Certification of Nonsegregated Facilities, FAR 52.222-21, if the
prime contract includes the clause entitled Equal Opportunity, FAR
52.222-26;
(4) Previous Contracts and Compliance Reports, FAR 52.222-22, if the
prime contract contains the clause entitled Equal Opportunity, FAR
52.222-26;
(5) Clean Air and Water Certification, FAR 52.223-1, if the prime
contract contains the clause entitled Clean Air and Water, FAR 52.223-2.
(6) Buy America Act Certification, FAR 52.225-1, if the prime
contract contains either of the clauses entitled Buy America
Act-Supplies, FAR 52.225-3, Buy America Act-Construction Materials, FAR
52.225-5.
(49 FR 12042, Mar. 28, 1984; 49 FR 38951, Oct. 2, 1984; 49 FR
42938, Oct. 25, 1984)
48 CFR 952.216 Clauses related to types of contracts.
48 CFR 952.216-7 Allowable cost and payment.
Alternate I: If the contract is with a nonprofit organization, other
than an educational institution; or a State or local government, modify
the clause at FAR 52.216-7 Allowable Cost and Payment by deleting from
paragraph (a) the phrase ''Subpart 31.2'' and substituting for it
''Subpart 31.7.''
Alternate II: When contracting with a commercial organization modify
paragraph (a) of the clause at FAR 52.216-7 by adding the phrase ''as
supplemented by Subpart 931.2 of the Department of Energy Acquisition
Regulations (DEAR),'' after the acronym ''(FAR)''.
48 CFR 952.216-15 Predetermined indirect cost rates.
Alternate: As prescribed in 916.307(j), modify paragraph (c) of the
clause at FAR 52.216-15, Predetermined Indirect Cost Rates, by deleting
the words ''Subpart 31.3'' and substituting for them ''Supbart 31.6''
and insert the clause in solicitations and contracts when a
cost-reimbursement research and development contract with a State or
local government is contemplated and predetermined indirect cost rates
are to be used.
48 CFR 952.217-70 Acquisition of real property.
Insert the following clause when required by 917.7403(c).
(a) Notwithstanding any other provision of the contract, the prior
approval of the contracting officer shall be obtained when, in
performance of this contract, the contractor acquires or proposes to
acquire use of real property by:
(1) Purchase, on the Government's behalf or in the contractor's own
name, with title eventually vesting in the Government.
(2) Lease, and the Government assumes liability for, or will
otherwise pay for the obligation under the lease as a reimbursable
contract cost.
(3) Acquisition of temporary interest through easement, license or
permit, and the Government funds the entire cost of the temporary
interest.
(b) Justification of and execution of any real property acquisitions
shall be in accordance and compliance with directions provided by the
contracting officer.
(c) The substance of this clause, including this paragraph (c), shall
be included in any subcontract occasioned by this contract under which
property described in paragraph (a) of this clause shall be acquired.
952.219 Clauses related to small business.
48 CFR 952.219-9 Small business and small disadvantaged business
subcontracting plan.
Alternate: When the clause at FAR 52.219-9 is used, modify it to
substitute the following alternate paragraph (d)(10).
(d)(10) Assurances that the offeror will (i) cooperate in any studies
or surveys as may be required, (ii) submit periodic reports in order to
allow the Government to determine the extent of compliance by the
offeror with the subcontracting plan, (iii) submit, not later than the
25th day of the succeeding month, Standard Form (SF) 294 only, (DOE
contractors need not submit SF 295) on a quarterly basis current as of
the last day of March, June, September and December, and upon contract
completion, in accordance with the instructions on the form except the
report shall be submitted quarterly rather than semiannually and
additionally shall indicate at the remarks block the number and dollar
amount of awards made to labor surplus area concerns to the extent such
reporting is required by the terms of their contract, and (iv) ensure
that its subcontractors agree to submit SF 294 in accordance with the
instructions at (iii) above.
(49 FR 12042, Mar. 28, 1984, as amended at 52 FR 38426, Oct. 16,
1987; 56 FR 41965, Aug. 26, 1991)
48 CFR 952.223 Clauses related to environment, conservation, and occupational safety.
48 CFR 952.223-71 Safety and health (Government-owned or leased
facility).
The clause set forth at 970.5204-2 shall be included in all contracts
and subcontracts for, and be made applicable to, work to be performed at
a government-owned or leased facility where DOE has elected to assert
its statutory authority to establish and enforce occupational safety and
health standards applicable to the work conditions of contractor and
subcontractor employees, and to the protection of the public health and
safety.
48 CFR 952.223-72 Radiation protection and nuclear criticality.
The clause set forth herein shall be included in those contracts or
subcontracts for, and be made applicable to, work to be performed at a
facility where DOE does not elect to assert its statutory authority to
enforce occupational safety and health standards applicable to the
working conditions of contractor and subcontractor employees, but does
need to enforce radiological safety and health standards pursuant to
provisions of the contract or subcontract rather than by reliance upon
Nuclear Regulatory Commission licensing requirements (including
agreements with states under section 274 of the Atomic Energy Act).
The contractor shall take all reasonable precautions in the
performance of work under this contract to protect the safety and health
of employees and of members of the public against the hazards of
ionizing radiation and radioactive materials and shall comply with all
applicable radiation protection and nuclear criticality safety standards
and requirements (including reporting requirements) of DOE. The
contractor shall submit a management program and implementation plan to
the contracting officer for review and approval within 30 days after the
effective date of this contract or modification. In the event that the
contractor fails to comply with said standards and requirements of DOE,
the contracting officer may, without prejudice to any other legal or
contractual rights of DOE, issue an order stopping all or any part of
the work. Thereafter, a start order for resumption of the work may be
issued at the discretion of the contracting officer. The contractor
shall make no claim for an extension of time or for compensation or
damages by reason of or in connection with such work stoppage.
(49 FR 12042, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984)
952.223-73 (Reserved)
48 CFR 952.223-74 Nuclear facility safety applicability.
The clause set forth in 970.5204-26 shall be included in all
contracts and subcontracts for, and be made applicable to, work to be
performed at or involving the construction, startup, operation, and
decommissioning of DOE-owned nuclear facilities deemed to be exempt from
nuclear regulatory licensing requirements. Any deviation in substance
affecting the meaning, intent, or basic principles of this clause must
be referred to the Procurement Executive for approval. Minor changes in
wording which may become necessary in negotiations may be approved by
the contracting officer after consultation with the General Counsel.
48 CFR 952.223-75 Preservation of individual occupational radiation
exposure records.
This clause shall be included in all contracts containing the DOE
standard clause entitled ''Safety and Health'' at 952.223-71 or
''Radiation Protection and Nuclear Criticality'' at 952.223-72 or
Nuclear Facility Safety Applicability at 952.223-74.
Individual occupational radiation exposure records generated in the
performance of work under this contract shall be subject to inspection
by DOE and shall be preserved by the contractor until disposal is
authorized by DOE or at the option of the contractor delivered to DOE
upon completion or termination of the contract. If the contractor
exercises the foregoing option, title to such records shall vest in DOE
upon delivery.
(49 FR 12042, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984)
48 CFR 952.224-70 Paperwork Reduction Act.
Insert the following clause if it is anticipated that information
collection from 10 or more persons will be necessary under the contract.
(a) In the event that it subsequently becomes a contractual
requirement to collect or record information calling either for answer
to identical questions from 10 or more persons other than Federal
employees, or information from Federal employees which is to be used for
statistical compilations of general public interest, the Federal Reports
Act will apply to this contract. No plan, questionnaire, interview
guide, or other similar device for collecting information (whether
repetitive or single-time) may be used without first obtaining clearance
from the Office of Management and Budget (OMB).
(b) The contractor shall request the required OMB clearance from the
contracting officer before expending any funds or making public contacts
for the collection of data. The authority to expend funds and to
proceed with the collection of data shall be in writing by the
contracting officer. The contractor must plan at least 90 days for OMB
clearance. Excessive delay caused by the Government which arises out of
causes beyond the control and without the fault or negligence of the
contractor will be considered in accordance with the clause entitled
''Excusable Delays,'' if such clause is applicable. If not, the period
of performance may be extended pursuant to this clause if approved by
the contracting officer.
48 CFR 952.227 Provisions and clauses related to patents, technical data
and copyrights.
952.227-70 (Reserved)
48 CFR 952.227-71 Patent rights -- small business firms or nonprofit
organizations.
The following clause shall be used in contracts for research,
development or demonstration work with small businesses or domestic
nonprofit organizations as directed in 927.300(b).
(a) Definitions.
(1) ''Invention'' means any invention or discovery which is or may be
patentable or otherwise protectable under Title 35 of the United States
Code (U.S.C.).
(2) ''Subject Invention'' means any invention of the contractor
conceived or first actually reduced to practice in the performance of
work under this contract.
(3) ''Practical Application'' means to manufacture in the case of a
composition or product, to practice in the case of a process or method,
or to operate in the case of a machine or system; and, in each case,
under such conditions as to establish that the invention is utilized and
that its benefits are, to the extent permitted by law or Government
regulations, available to the public on reasonable terms.
(4) ''Made'' when used in relation to any invention means the
conception or first actual reduction to practice of such invention.
(5) ''Small Business Firm'' means a small business concern as defined
at section 2 of Pub. L. 85-536 (15 U.S.C. 632) and implementing
regulations of the Administrator of the Small Business Administration.
For the purpose of this clause, the size standard for small business
concerns involved in Government procurement, contained in 13 CFR
121.3-8, and in subcontracting, contained in 13 CFR 121.3-12, will be
used.
(6) ''Nonprofit Organization'' means a university or other
institution of higher education or an organization of the type described
in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C.
501(c)) and exempt from taxation under section 501(a) of the Internal
Revenue Code (26 U.S.C. 501(a)) or any nonprofit scientific or
educational organization qualified under a state nonprofit organization
statute.
(7) ''Patent Counsel'' means the Department of Energy (DOE) patent
counsel assisting the DOE contracting activity.
(b) Allocation of principal rights. The contractor may retain the
entire right, title, and interest throughout the world to each subject
invention subject to the provisions of this clause and 35 U.S.C. 203.
With respect to any subject invention in which the contractor retains
title, the Federal Government shall have a nonexclusive,
nontransferable, irrevocable, paid-up license to practice or have
practiced for or on behalf of the United States the subject invention
throughout the world.
(c) Invention disclosure, election of title and filing of patent
applications by contractor.
(1) The contractor will disclose each subject invention to the Patent
Counsel within two months after the inventor discloses it in writing to
contractor personnel responsible for the administration of patent
matters. The disclosure to the Patent Counsel shall be in the form of a
written report and shall identify the contract under which the invention
was made and the inventor(s). It shall be sufficiently complete
technical detail to convey a clear understanding, to the extent known at
the time of the disclosure of the nature, purpose, operation, and the
physical, chemical, biological or electrical characteristics of the
invention. The disclosure shall also identify any publication, on sale
or public use of the invention and whether a manuscript describing the
invention has been submitted for publication and, if so, whether it has
been accepted for publication at the time of disclosure. In addition,
after disclosure to the Patent Counsel, the contractor will promptly
notify the Patent Counsel of the acceptance of any manuscript describing
the invention or of any on sale or public use planned by the contractor.
(2) The contractor will elect in writing whether or not to retain
title to any such invention by notifying the Patent Counsel within
twelve months of disclosure to the contractor; provided that in any
case where publication, on sale or public use has initiated the one year
statutory period wherein valid patent protection can still be obtained
in the United States, the period for election of title terminates sixty
days prior to the end of the statutory period.
(3) The contractor will file its initial patent application on an
elected invention within two years after election or, if earlier, prior
to the end of any statutory period wherein valid patent protection can
be obtained in the United States after a publication, on sale, or public
use. The contractor will file patent applications in additional
countries within either ten months of the corresponding initial patent
application or six months from the date permission is granted by the
Commissioner of Patents and Trademarks to file foreign patent
applications where such filing has been prohibited by a Secrecy Order.
(4) Requests for extention of the time for disclosure to the Patent
Counsel, election, and filing, may, at the discretion of the Patent
Counsel be granted.
(d) Conditions when the Government may obtain title.
(1) The contractor will convey the DOE, upon written request, title
to any subject invention:
(i) If the contractor fails to disclose or elect the subject
invention within the times specified in (c) above, or elects not to
retain title.
(ii) In those contries in which the contractor fails to file patent
applications within the times specified in (c) of this section;
provided, however, that if the contractor has filed a patent application
in a country after the times specified in (c) of this section but prior
to its receipt of the written request of the Patent Counsel, the
contractor shall continue to retain title in that country; or
(iii) In any country in which the contractor decides not to continue
the prosecution of any application for, to pay the maintenance fees on,
or defend in a reexamination or opposition proceeding on, a patent on a
subject invention.
(e) Minimum rights to contractor.
(1) The contractor will retain a nonexclusive, royalty-free license
throughout the world in each subject invention to which the Government
obtains title except if the contractor fails to disclose the subject
invention within the times specified in (c) above. The contractor's
license extends to its domestic subsidiaries and affiliates, if any,
within the corporate structure of which the contractor is a part and
includes the right to grant sublicenses of the same scope to the extent
the contractor was legally obligated to do so at the time the contract
was awarded. The license is transferable only with the approval of DOE
except when transferred to the successor of that part of the
contractor's business to which the invention pertains.
(2) The contractor's domestic license may be revoked or modified by
DOE to the extent necessary to achieve expeditious practical application
of the subject invention pursuant to an application for an exclusive
license submitted in accordance with 10 CFR Part 781 and 41 CFR 101-4.
This license will not be revoked in that field of use or the
geographical areas in which the contractor has achieved practical
application and continues to make the benefits of the invention
reasonably accessible to the public. The license in any foreign country
may be revoked or modified at the discretion of DOE to the extent the
contractor, its licensees, or its domestic subsidiaries or affiliates
have failed to achieve practical application in that foreign country.
(3) Before revocation or modification of the license, DOE will
furnish the contractor a written notice of its intention to revoke or
modify the license, and the contractor will be allowed thirty days (or
such other time as may be authorized by DOE for good cause shown by the
contractor) after the notice to show cause why the license should not be
revoked or modified. The contractor has the right to appeal, in
accordance with 10 CFR Part 781, any decision concerning the revocation
or modification of its license.
(f) Contractor action to protect Government's interest.
(1) The contractor agrees to execute or to have executed and promptly
deliver to the Patent Counsel all instruments necessary to:
(i) Establish or confirm the rights the Governement has throughout
the world in those subject inventions for which the contractor retains
title, and
(ii) Convey title to DOE when requested under (d) above and to enable
the Government to obtain patent protection throughout the world in that
subject invention.
(2) The contractor agrees to require, by written agreement, its
employees, other than clerical and nontechnical employees, to disclose
promptly in writing to personnel identified as responsible for the
administration of patent matters and in a format suggested by the
contractor each subject invention made under this contract in order that
the contractor can comply with the disclosure provisions of (c) above
and to execute all papers necessary to file patent applications on
subject inventions. The disclosure format should require, as a minimum,
the information requested by (c)(1) above. The contractor shall
instruct such employees through the employee agreements or suitable
educational programs on the importance of reporting inventions in
sufficient time to permit the filing of patent applications prior to
United States or foreign statutory bars.
(3) The contractor will notify the Patent Counsel of any decision not
to continue prosecution of a patent application, pay maintenace fees, or
defend in a reexamination or opposition proceeding on a patent, in any
country, not less than thirty days before the expiration of the response
period required by the relevant patent office.
(4) The contractor agrees to include, within the specification of any
United States patent application and any patent issuing thereon covering
a subject invention, the following statement, ''This invention was made
with Government support under (identify the contract) awarded by the
Department of Energy. The Government has certain rights in this
invention.''
(5) The contractor agrees to:
(i) Provide a report prior to the close-out of the contract listing
all subject inventions;
(ii) Provide notification of all subcontracts under this contract for
experimental, developmental, demonstration, or research work, the
identity of the patent rights clause therein, and copy of each
subcontract upon request;
(iii) Provide promptly a copy of the patent application, filing date,
serial number, patent number and issue date for any subject invention in
any country in which the contractor has applied for a patent.
(g) Subcontracts.
(1) The contractor will include this clause, suitably modified to
identify the parties, in all subcontracts, regardless of tier, for
experimental, developmental or research work to be performed by a small
business firm or a domestic nonprofit organization. The subcontractor
will retain all rights provided for the contractor in this clause, and
the contractor will not, as part of the consideration for awarding the
subcontract, obtain rights in the subcontractor's subject inventions.
(2) The contractor will include in all other subcontracts, regardless
of tier, for experimental, developmental, demonstration, or research
work the patent rights clause of 41 CFR 9-9.107-5(a) or 9-9.107-6 as
appropriate, modified to identify the parties.
(3) In the case of a subcontract at any tier, DOE, the subcontractor,
and the contractor agree that the mutual obligations of the parties
created by this clause constitute a contract between the subcontractor
and DOE with respect to those matters covered by this clause.
(h) Reporting on utilization of subject inventions. The contractor
agrees to submit on request periodic reports no more frequently than
annually on the utilization of a subject invention or on efforts at
obtaining such utilization that are being made by the contractor or its
licensees or assignees. Such reports shall include information
regarding the status of development, date of first commercial sale or
use, gross royalties received by the contractor, and such other data and
information as DOE may reasonably specify. The contractor also agrees
to provide additional reports as may be requested by DOE in connection
with any march-in proceeding undertaken by DOE in accordance with
paragraph (j) of this clause. To the extent data or information
supplied under this section is considered by the contractor, its
licensee or assignee to be priviledged and confidential and is so
marked, DOE agrees that, to the extent permitted by 35 U.S.C. 202(c)(5),
it will not disclose such information to persons outside the Government.
(i) Preference for United States industry. Notwithstanding any other
provision of this clause, the contractor agrees that neither it nor any
assignee will grant to any person the exclusive right to use or sell any
subject invention in the United States unless such person agrees that
any products embodying the subject invention or produced through the use
of the subject invention will be manufactured substantially in the
United States. However, in individual cases, the requirement for such
an agreement may be waived by DOE upon a showing by the contractor or
its assignee that reasonable but unsuccessful efforts have been made to
grant licenses on similar terms to potential licensees that would be
likely to manufacture substantially in the United States or that under
the circumstances domestic manufacture is not commercially feasible.
(j) March-in rights. The contractor agrees that with respect to any
subject invention in which it has acquired title, DOE has the right in
accordance with the procedures in OMB Circular A-124 to require the
contractor, an assignee or exclusive licensee of a subject invention to
grant a nonexclusive, partially exclusive, or exclusive license in any
field of use to a responsible applicant or applicants, upon terms that
are reasonable under the circumstances, and if the contractor, assignee,
or exclusive licensee refuses such a request, DOE has the right to grant
such a license itself if DOE determines that:
(1) Such action is necessary because the contractor or assignee has
not taken, or is not expected to take within a reasonable time,
effective steps to achieve practical application of the subject
invention in such field of use;
(2) Such action is necessary to alleviate health or safety needs
which are not reasonably satisfied by the contractor, assignee, or their
licensees;
(3) Such action is necessary to meet requirements for public use
specified by Federal regulations and such requirements are not
reasonably satisfied by the contractor, assignee, or licensees; or
(4) Such action is necessary because the agreement required by (i) of
this clause has not been obtained or waived or because a licensee of the
exclusive right to use or sell any subject invention in the United
States is in breach of such agreement.
(k) Special provisions for contracts with nonprofit organizations.
If the contractor is a non profit organization, it agrees that:
(1) Rights to a subject invention in the United States may not be
assigned without the approval of DOE, except where such assignment is
made to an organization which has as one of its primary functions the
management of inventions and which is not, itself, engaged in or does
not hold a substantial interest in other organizations engaged in the
manufacture or sale of products or the use of processes that might
utilize the invention or be in competition with embodiments of the
invention (provided that such assignee will be subject to the same
provisions as the contractor);
(2) The contractor may not grant exclusive licenses under United
States patents or patent applcations in subject inventions to persons
other than small business firms for a period in excess of the earlier
of:
(i) Five years from first commercial sale or use of the invention;
or
(ii) Eight years from the date of the exclusive license excepting
that time before regulatory agencies necessary to obtain premarket
clearance, unless on a case-by-case basis, DOE approves a longer
exclusive license. If exclusive field of use licenses are granted,
commercial sale or use in one field of use will not be deemed commercial
sale or use as to other fields of use, and a first commercial sale or
use with respect to a product of the invention will be deemed to end the
exclusive period to different subsequent products covered by the
invention;
(3) The contractor will share royalties collected on a subject
invention with the inventor; and
(4) The balance of any royalties or income earned by the contractor
with respect to subject inventions, after payment of expenses (including
payments to inventors) incidental to the administration of subject
inventions, will be utilized for the support of scientific research or
education.
(l) Communications. The DOE central point of contact for
communications or matters relating to this clause is the Patent Counsel.
952.227-72 (Reserved)
48 CFR 952.227-73 Additional technical data requirements.
The following clause shall be used in contracts for research,
development, or demonstration work and in other contracts as directed in
927.402-3(b).
(a) In addition to the technical data specified elsewhere in this
contract to be delivered, the contracting officer may at any time during
the contract performance or within one year after final payment call for
the contractor to deliver any technical data first produced or
specifically used in the performance of this contract, except technical
data pertaining to items of standard commercial design.
(b) The provisions of the Rights in Technical Data clause included in
this contract are applicable to all technical data called for under this
Additional Technical Data Requirements clause. Accordingly, nothing
contained in this clause shall require the contractor to actually
deliver any technical data, the delivery of which is excused by
paragraph (e) of the Rights in Technical Data clause.
(c) When technical data are to be delivered under this clause, the
contractor will be compensated for appropriate costs for converting such
data into the prescribed form for reproduction, and for delivery.
(49 FR 12042, Mar 28, 1984; 49 FR 38952, Oct. 2, 1984)
952.227-74 (Reserved)
48 CFR 952.227-75 Rights in technical data -- long form.
As directed by 927.402-3(e), the following clause shall be used in
all contracts having as a purpose the conduct of research, development,
or demonstration, or in contracts for supplies, or in any other contract
where technical data are specified to be delivered in the contract, or
where the contract contains the Additional Technical Data Requirements
clause at 952.227-73.
(a) Definitions.
(1) ''Technical data'' means recorded information regardless of form
or characteristic, of a scientific or technical nature. It may, for
example, document research, experimental, developmental, or
demonstration, or engineering work, or be usable or used to define a
design or process, or to procure, produce, support, maintain, or operate
material. The data may be graphic or pictorial delineations in media
such as drawings or photographs, text in specifications or related
performance or design type documents or computer software (including
computer programs, computer software data bases, and computer software
documentation). Examples of technical data include research and
engineering data, engineering drawings and associated lists,
specifications, standards, process sheets, manuals, technical reports,
catalog item identification, and related information. Technical data as
used herein do not include financial reports, cost analyses, and other
information incidental to contract administration.
(2) ''Proprietary data'' means technical data which embody trade
secrets developed at private expense, such as design procedures or
techniques, chemical composition of materials, or manufacturing methods,
processes, or treatments, including minor modifications thereof,
provided that such data:
(i) Are not generally known or available from other sources without
obligation concerning their confidentiality;
(ii) Have not been made available by the owner to others without
obligation concerning its confidentiality; and
(iii) Are not already available to the Government without obligation
concerning the confidentiality.
(3) ''Contract data'' means technical data first produced in the
performance of the contract in technical data which are specified to be
delivered under the contract; technical data that may be called for
under the Additional Technical Data Requirements clause of the contract,
if any, or technical data actually delivered in connection with the
contract.
(4) ''Unlimited rights'' means rights to use, duplicate, or disclose
technical data, in whole or in part, in any manner and for any purpose
whatsoever, and to permit others to do so.
(b) Allocation of rights.
(1) The Government shall have:
(i) Unlimited rights in contract data except as otherwise provided
below with respect to proprietary data;
(ii) The right to remove, cancel, correct or ignore any marking not
authorized by the terms of this contract on any technical data furnished
hereunder, if in response to a written inquiry by DOE concerning the
propriety of the markings, the contractor fails to respond thereto
within 60 days or fails to substantiate the propriety of the markings.
In either case, DOE will notify the contractor of the action taken;
(iii) No rights under this contract in any technical data which are
not contract data.
(2) The contractor shall have:
(i) The right to withhold proprietary data in accordance with the
provisions of this clause; and
(ii) The right to use for its private purposes, subject to patent,
security or other provisions of this contract data it first produces in
the performance of this contract, provided the data requirements of this
contract have been met as of the date of the private use of such data.
The contractor agrees that to the extent it receives or is given access
to proprietary data or other technical, business or financial data in
the form of recorded information from DOE or a DOE contractor or
subcontractor, the contractor shall treat such data in accordance with
any restrictive legend contained thereon, unless use is specifically
authorized by prior written approval of the Contracting Officer.
(3) Nothing contained in this Rights of Technical Data clause shall
imply a license to the Government under any patent or be construed as
affecting the scope of any licenses or other rights otherwise granted to
the Government under any patent.
(c) Copyrighted material.
(1) The contractor shall not, without prior written authorization of
the Patent Counsel, establish a claim to statutory copyright in any
contract data first produced in the performance of the contract. To the
extent such authorization is granted, the Government reserves for itself
and others acting on its behalf a royalty-free, nonexclusive,
irrevocable, worldwide license for Governmental purposes to publish,
distribute, translate, duplicate exhibit and perform any such data
copyrighted by the contractor.
(2) The contractor agrees not to include in the technical data
delivered under the contract any material copyrighted by the contractor
and not to knowingly include any material copyrighted by others, without
first granting or obtaining at no cost a license therein for the benefit
of the Government of the same scope as set forth in paragraph (c)(1) of
this section. If such royalty-free license is unavailable and the
contractor nevertheless determines that such copyrighted material must
be included in the technical data to be delivered, rather than merely
incorporated therein by reference, the contractor shall obtain the
written authorization of the Contracting Officer to include such
copyrighted material in the technical data prior to its delivery.
(d) Subcontracting. It is the responsibility of the contractor to
obtain from its subcontractors technical data and rights therein, on
behalf of the Government, necessary to fulfill the contractor's
obligations to the Government with respect to such data. In the event
of refusal by a subcontractor to accept a clause affording the
Government such rights, the contractor shall:
(1) Promptly submit written notice to the Contracting Officer setting
forth reasons for the subcontractor refusal and other pertinent
information which may expedite disposition of the matter; and
(2) Not proceed with the subcontract without the written
authorization of the Contracting Officer.
(e) Withholding of proprietary data. Notwithstanding the inclusion
of the Additional Technical Data Requirements clause in this contract or
any provision of this contract specifying the delivery of technical
data, the contractor may withhold proprietary data from delivery,
provided that the contractor furnishes in lieu of any such proprietary
data so withheld technical data disclosing the source, size,
configuration, mating and attachment characteristics, functional
characteristics, and performance requirements (''Form, Fit and
Function'' data, e.g., specification control drawing, catalog sheets,
envelope drawings, etc.), or a general description of such proprietary
data where ''Form, Fit and Function'' data are not applicable. The
Government shall acquire no rights to any proprietary data so withheld
except that such data shall be subject to the ''inspection rights''
provisions of paragraph (f), and, if included, the ''Limited rights in
proprietary data'' provisions of paragraph (g) and the ''Contractor
licensing'' provisions of paragraph (h).
(f) Inspection rights. Except as may be otherwise specified in this
contract for specific items of proprietary data which are not subject to
this paragraph, the Contracting Officer's representatives, at all
reasonable times up to three years after final payment under this
contract, may inspect at the contractor's facility any proprietary data
withheld under paragraph (e) and not furnish under paragraph (g), if
this contract includes such paragraph, for the purposes of verifying
that such data properly fell within the withholding provision of
paragraph (e), or for evaluating work performance.
Alternate I: Additional paragraph (g), limited rights. The
following paragraph (d) shall be added to the basic clause at 952.227-75
of this section when it is determined in accordance with 927.402-3(e)(2)
that delivery of proprietary data is necessary with limited rights in
the Government.
(g) Limited rights in proprietary data. Except as may be otherwise
specified in this contract as technical data which are not subject to
this paragraph, the contractor shall, upon written request from the
Contracting Officer at any time prior to three years after final payment
under this contract, promptly deliver to the Government any
''proprietary data'' withheld pursuant to paragraph (e) of the Rights in
Technical Data clause of this contract. The following legend and no
other is authorized to be affixed on any ''proprietary data'' delivered
pursuant to this provision, provided the ''proprietary data'' meets the
conditions for initial withholding under paragraph (e) of the Rights in
Technical Data clause. The Government will thereafter treat the
''proprietary data'' in accordance with such legend.
This technical data contains ''proprietary data,'' furnished under
''Contract No. -------- '' with the U.S. Department of Energy (and
Purchase Order No. -------- if applicable) which may be duplicated and
used by the Government with the express limitations that the
''proprietary data'' may not be disclosed outside the Government or be
used for purposes of manufacture without prior permission of the
contractor, except that further disclosure or use may be made solely for
the following purposes:
(a) This ''proprietary data'' may be disclosed for evaluation
purposes under the restriction that the ''proprietary data'' be retained
in confidence and not further disclosed;
(b) This ''proprietary data'' may be disclosed to other contractors
participating in the Government's program of which this contract is
part, for information or use in connection with the work performed under
their contracts and under the restriction that the ''proprietary data''
be retained in confidence and not be further disclosed; or
(c) This ''proprietary data'' may be used by the Government or others
on its behalf for emergency repair or overhaul work under the
restriction that the ''proprietary data'' be retained in confidence and
not be further disclosed.
This legend shall be marked on any reproduction of this data in whole
or in part.
Alternate II: Additional paragraph (h), contractor licensing. The
following paragraph (b) shall be added to the basic clause at 952.227-75
above when it is determined in accordance with 927.402-3(e)(3) that the
Government should obtain on behalf of third parties and itself limited
license rights in and to proprietary contract data.
(h) Contract licensing. Except as may be otherwise specified in this
contract as technical data not subject to this paragraph, the contractor
agrees that upon written application by DOE, it will grant to the
Government and responsible third parties, for purpose of practicing a
subject of this contract, a nonexclusive license in any contract data
which are proprietary data, on terms and conditions reasonable under the
circumstances including appropriate provisions for confidentiality;
provided, however, the contractor shall not be obligated to license any
such data if the contractor demonstrates to the statisfaction of the
Head of the Agency or designee that:
(1) Such data are not essential to the manufacture or practice of
hardware designed or fabricated, or processes developed, under this
contract;
(2) Such data, in the form of results obtained by their use, have a
commercially competitive alternative available or readily introducible
from one or more other sources;
(3) Such data, in the form of results obtained by their use, are
being supplied by the contractor or its licensees in sufficient quantity
and at reasonable prices to satisfy market needs, or the contractor or
its licensees have taken effective steps or within a reasonable time are
expected to take effective steps to so supply such data in the form of
results obtained by their use; or
(4) Such data, in the form of results obtained by their use, can be
furnished by another firm skilled in the art of manufacturing items or
performing processes of the same general type and character necessary to
achieve the contract results.
(49 FR 12042, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984)
48 CFR 952.227-76 Rights in data -- special works.
The following clause shall be included in contracts having as a
principal purpose or task the production of copyrightable works as
discussed in 927.402-3(f).
(a) The term ''Data'' as used herein means recorded information
regardless of form or characteristic, such as writings, sound
recordings, pictorial reproductions, drawings, or other graphic
representations, and works of similar nature (whether or not
copyrighted) which are specified to be delivered under this contract.
The term includes data such as management studies and data produced
under support services contracts but does not include financial reports,
cost analyses, and other information incidental to contract
administration.
(b) All data first produced or composed in the course of or under
this contract shall be the sole property of the Government. Except with
the prior written permission of the contracting officer, the contractor
agrees not to assert any rights at common law or in equity or establish
any claim to statutory copyright in such data. The contractor shall not
publish or reproduce such data in whole or in part or in any manner of
form, or authorize others so to do, without the written consent of the
Contracting Officer or until such time as the Government may have
released such data to the public.
(c) The contractor hereby grants to or will obtain for the Government
a royalty-free, nonexclusive and irrevocable license throughout the
world (1) to publish, translate, reproduce, deliver, perform, use, and
dispose of, in any manner, any and all data which are not first produced
or composed in the performance of this contract but which are
incorporated in the work furnished under this contract; and (2) to
authorize others so to do.
(d) The contractor shall indemnify and save and hold harmless the
Government, its officers, agents, and employees acting within the scope
of their official duties against any liability, including costs and
expenses, (1) for violation of proprietary rights, copyrights, or rights
of privacy, arising out of the publication, translation, reproduction,
delivery, performance, use, or disposition of any data furnished under
this contract; or (2) based upon any libelous, defamatory, or other
unlawful matter contained in such data.
(e) Nothing contained in this clause shall imply a license to the
Government under any patent, or be construed as affecting the scope of
any licenses or other rights otherwise granted to the Government under
any patent.
(49 FR 12042, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984)
48 CFR 952.227-77 Rights in technical data clause -- short form.
As discussed in 927.402-3(g), the following clause may be used in
contracts for basic research with educational institutions and in
contracts with consultants and in other contracts of a similar nature.
The clause shall not be used in any contract where proprietary
information of the contractor may be utilized in performance of work
under the contract.
(a) Definitions. The definitions of terms set forth in DEAR 927.401
apply to the extent these terms are used herein.
(b) Allocation of rights.
(1) The Government shall have:
(i) Unlimited rights in technical data first produced or specifically
used in the performance of this contract;
(ii) The right of the contracting officer or his representative to
inspect at all reasonable times up to three years after final payment
under this contract all technical data first produced or specifically
used in the contract (for which inspection the contractor or its
subcontractor shall afford proper facilities to DOE); and
(iii) The right to have any technical data first produced or
specifically used in the performance of this contract delivered to the
Government as the contracting officer may from time to time direct
during the progress of the work, or in any event as the contracting
officer shall direct upon completion or termination of this contract.
(2) The contractor shall have:
The right to use for its private purposes, subject to patent,
security or other provisions of this contract, technical data it first
produces in the performance of this contract provided the data
requirements of this contract have been met as of the date of the
private use of such data. The contractor agrees that to the extent it
receives or is given access to proprietary data or other technical,
business or financial data in the form of recorded information from DOE
or a DOE contractor or subcontractor, the contractor shall treat such
data in accordance with any restrictive legend contained thereon, unless
use is specifically authorized by prior written approval of the
contracting officer.
(c) Copyrighted material. (1) The contractor agrees to, and does
hereby grant to the Government, and to its officers, agents, servants
and employees acting within the scope of their duties:
(i) A royalty-free, nonexclusive, irrevocable license to reproduce,
translate, publish, use, and dispose of and to authorize others to do
so, all copyrightable material first produced or composed in the
performance of this contract by the contractor, its employees or any
individual or concern specifically employed or assigned to originate and
prepare such material; and
(ii) A license as aforesaid under any and all copyrighted or
copyrightable works not first produced or composed by the contractor in
the performance of this contract but which are incorporated in the
material furnished under the contract, provided that such license shall
be only to the extent the contractor now has, or prior to completion or
final settlement of the contract may acquire, the right to grant such
license without becoming liable to pay compensation to others solely
because of such grant.
(2) The contractor agrees that it will not knowingly include any
material copyrighted by others in any written or copyrightable material
furnished or delivered under this contract without a license as provided
for in paragraph (c)(1)(ii) hereof, or without the consent of the
copyright owner, unless it obtains specific written approval of the
contracting officer for the inclusion of such copyrighted material.
(49 FR 12042, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984)
48 CFR 952.227-78 Rights in technical data -- facility.
As discussed in 970.2702 the following clause is to be used in
contracts for the operation of Government-owned facilities (GOCO's).
(a) Definitions.
(1) ''Technical data'' means recorded information, regardless of form
or characteristic, of a scientific or technical nature. It may, for
example, document research, experimental, developmental, or
demonstration, or engineering work or be usable or used to define a
design or process or to procure, produce, support, maintain, or operate
material. The data may be graphic or pictorial delineations in media
such as drawings or photographs, text in specifications or related
performance or design type documents, or computer software (including
computer programs, computer software data bases and computer software
documentation). Examples of technical data include research and
engineering data, engineering drawings and associated lists,
specifications, standards, process sheets, manuals, technical reports,
catalog item identification, and related information. Technical data as
used herein does not include financial reports, cost analyses, and other
information incidental to contract administration.
(2) ''Proprietary data'' means technical data which embody trade
secrets developed at private expense, such as design procedures or
techniques, chemical composition of materials, or manufacturing methods,
processes, or treatments, including minor modifications thereof,
provided that such data:
(i) Are not generally known or available from other sources without
obligation concerning their confidentiality;
(ii) Have not been made available by the owner to others without
obligation concerning their confidentiality; and
(iii) Are not already available to the Government without obligation
concerning their confidentiality.
(3) ''Unlimited rights'' means rights to use, duplicate, or disclose
technical data, in whole or in part, in any manner and for any purpose
whatsoever, and to permit others to do so.
(b) Allocation of rights. (1) The Government shall have:
(i) Ownership in all technical data first produced in the performance
of the contract;
(ii) The right to inspect technical data first produced or
specifically used in the performance of the contract at all reasonable
times (for which inspection the proper facilities shall be afforded DOE
by the contractor and its subcontractors);
(iii) The right to have all technical data first produced or
specifically used in the performance of the contract delivered to the
Government or otherwise disposed of by the contractor, either as the
contracting officer may from time to time direct during the progress of
the work or in any event as the contracting officer shall direct upon
completion or termination of this contract, provided that nothing
contained in this paragraph shall require the contractor to actually
deliver any technical data, the delivery of which is excused by this
Rights in Technical Data clause;
(iv) Unlimited rights in technical data specifically used in the
performance of this contract, except technical data pertaining to items
of standard commercial design; the contractor agrees to leave a copy of
such technical data at the facility or plant to which such data relate,
and to make available for access or to deliver to the Government such
data upon request by the contracting officer; provided, that if such
data are proprietary, the rights of the Government in such data shall be
governed solely by the provisions of optional paragraph (e) hereof --
''Limited Rights in Proprietary Data;''
(v) The right to remove, cancel, correct, or ignore any marking not
authorized by the terms of this contract on any technical data furnished
hereunder if, in response to a written inquiry by DOE concerning the
propriety of the markings, the contractor fails to respond thereto
within 60 days or fails to substantiate the propriety of the markings.
In either case DOE will notify the contractor of the action taken.
(2) The contractor shall have:
(i) The right to withhold its proprietary data in accordance with the
provisions of this clause; and
(ii) The right to use for its private purposes, subject to patent,
security or other provisions of this contract, technical data it first
produces in the performance of this contract, provided the data
requirement of this contract have been met as of the date of the private
use of such data. The contractor agrees that to the extent it receives
or is given access to proprietary data or other technical, business or
financial data in the form of recorded information from DOE or a DOE
contractor or subcontractor, the contractor shall treat such data in
accordance with any restrictive legend contained thereon, unless use is
specifically authorized by prior written approval of the contracting
officer.
(3) Nothing contained in this clause shall imply a license to the
Government under any patent or be construed as affecting the scope of
any licenses or other rights otherwise granted to the Government under
any patent.
(c) Copyrighted material.
(1) The contractor shall not, without prior written authorization of
the Patent Council establish a claim to statutory copyright in any
technical data first produced in the performance of this contract. To
the extent such authorization is granted, the Government reserves for
itself and others acting on its behalf, a royalty-free, nonexclusive,
irrevocable, world-wide license for Governmental purposes to publish,
distribute, translate, duplicate, exhibit, and perform any such data
copyrighted by the contractor.
(2) The contractor agrees not to include in the technical data
delivered under the contract any material copyrighted by the contractor
and not to knowlingly include any material copyrighted by others without
first granting or obtaining at no cost a license therein for the benefit
of the Government of the same scope as set forth in paragraph (c)(1)
above. If the contractor believes that such copyrighted material for
which the license cannot be obtained must be included in the technical
data to be delivered, rather than merely incorporated therein by
reference, the contractor shall obtain the written authorization of the
contracting officer to include such material in the technical data prior
to its delivery.
(d) Subcontracting.
(1) Unless otherwise directed by the contracting officer, the
contractor agrees to use in subcontracts having as a purpose the conduct
of research, development, and demonstration work or in subcontracts for
supplies, the contract clause provisions in 48 CFR 952.227-75 in
accordance with the policy and procedures of 48 CFR 927.402-1, 927.402-2
and 927.402-3.
(2) It is the responsibility of the contractor to obtain from its
subcontractors technical data and rights therein, on behalf of the
Government, necessary to fulfill the contractor's obligations to the
Government with respect to such data. In the event of refusal by a
subcontractor to accept a clause affording the Government such rights,
the contractor shall:
(i) Promptly submit written notice to the contracting officer setting
forth reasons for the subcontractor's refusal and other pertinent
information which may expedite disposition of the matter; and
(ii) Not proceed with the subcontract without the written
authorization of the contracting officer.
48 CFR 952.227-79 Limited rights in proprietary data.
As discussed in 970.2702(c) the following paragraph may be used as a
supplement to the clause at 952.227-78 where it is determined that
delivery of proprietarty data is necessary with limited rights in the
Government.
(e) Except as may be otherwise specified in this contract as
technical data which are not subject to this paragraph, the contractor
agrees to and does hereby grant to the Government an irrevocable,
nonexclusive paid-up license and right to use by or for the Government,
any proprietary data of the contractor specifically used in the
performance of this contract; provided, however, that to the extent
that any proprietary data when furnished or delivered is specifically
indentified by the contractor at the time of initial delivery to the
Government or a representative of the Government, such data shall not be
used within or outside the Government, except as provided in the
''Limited Rights Legend'' set forth below. All such proprietary data
shall be marked with the following ''Limited Rights Legend'':
This Technical data contains ''proprietary data,'' furnished under
contract No. ------ with the U.S. Department of Energy (and purchase
order No. ------ if applicable) which may be duplicated and used by the
Government with the express limitations that the ''proprietary data''
may not be disclosed outside of the Government or be used for purposes
of manufacture without prior permission of the following purposes:
(a) This '' proprietary data'' may be disclosed for evaluation
purposes under the restriction that the ''proprietary data'' be retained
in confidence and not be further disclosed;
(b) This ''proprietary data'' may be disclosed to other contractors
participating in the Government's program of which this contract is a
part for information or use in connection with the work performed under
their contracts and under the restriction that the ''proprietary data''
be retained in confidence and not be further disclosed; or
(c) This ''proprietary data'' may be used by the Government or others
on its behalf for emergency repair or overhaul work under the
restriction that the ''proprietary data'' be retained in confidence and
not be further disclosed.
This legend shall be marked on any reproduction of this data in whole
or in part.
(49 FR 12042, Mar. 28, 1984, as amended at 56 FR 41965, Aug. 26,
1991)
48 CFR 952.227-80 Technical data certification.
In soliciations which may involve the acquisition of technical data,
obtain the following certification and include the legend at FAR
52.215-12 and, where appropriate, the provision at 952.227-83.
(a) The offeror certifies that it has not delivered or is not
obligated to deliver to the Government under any contract or subcontract
the same or substantially the same technical data included in its offer,
except as set forth below:
( ) none
( ) Contract No. (and Subcontract No., if applicable)
Agency name and place of delivery
(b) The work to be performed and the known requirements for technical
data as set forth in the solicitation have been reviewed. To the best
of my knowledge:
/ / There will be no technical data withheld from delivery as being
proprietary data.
/ / The technical data listed on page ---- of the proposal will
likely be used in conjunction with the performance of work under the
contract and is represented as being proprietary data to be protected
from unauthorized use and disclosure and therefore to be withheld from
delivery in a report not having a restrictive legend.
48 CFR 952.227-81 Royalty Payments Certification.
If the nature of the acquisition suggests that royalty payments may
be involved, include the following certification in the solicitation.
In order that DOE may be informed regarding royalty payments to be
made by a contractor in connection with any acquisition, construction,
or operation where the amount of the royalty payment is reflected in the
contract price, or is to be reimbursed by the Government, check one of
the following:
( ) The Contract price includes no amount representing the payment of
royalty by the offeror directly to others in connection with the
performance of the contract.
( ) The contract price includes an amount for royalty payment
expected to be made in connection with the proposed award. The Offeror
shall set forth below: (1) the amount of each payment, (2) the names of
the licensor, (3) either the patent numbers involved or such other
information as will permit identification of the patents and patent
applications and the basis on which royalties will be paid.
48 CFR 952.227-82 Rights to proposal data.
Pursuant to 927.7002(d), include this clause in any contract which
the decision to make the award included consideration of a technical
proposal.
Except for technical data contained on pages ---- of the contractor's
proposal dated ---- which are asserted by the contractor as being
proprietary data, it is agreed that, as a condition of the award of this
contract, and notwithstanding the provisions of any notice appearing on
the proposal, the Government shall have the right to use, duplicate,
disclose and have others do so for any purpose whatsover, the technical
data contained in the proposal upon which this contract is based.
48 CFR 952.227-83 Rights in technical data solicitation representation.
Pursuant to 927.7004-1 and 927.7004-2, include this provision, the
legend at FAR 52.215-12 and the certification at 952.227-80 in
solicitations which may result in contracts for research, development,
or demonstration work or contracts for supplies in which delivery of
required technical data is contemplated.
The section of this solicitation which describes the work to be
performed also sets forth DOE's know requirements for technical data.
The Additional Technical Data Requirements clause, if included in this
solicitation, provides the Government with the option to order
additional technical data, the requirements for which are not known at
the time of contracting. There is, however, a built-in limitation on
the kind of technical data which may be required. This limitation
provides that the contractor may withhold delivery of proprietary data.
Accordingly, it is necessary that your proposal state that the work to
be performed and the known requirements for technical data as set forth
in the solicitation have been reviewed, and either state that, to the
best of your knowledge, not data will be withheld, or submit a list
identifying the proprietary data which, to the best of your knowledge,
will likely be used in the contract performance and will be withheld.
48 CFR 952.227-84 Notice of right to request patent waiver.
Pursuant to 927.7005, include this provision in all solicitations
which may result in contracts calling for research, development, or
demonstration work.
Offerors and prospective contractors, in accordance with applicable
statutes and the Department of Energy Acquisition Regulation, have the
right to request, in advance of or within 30 days after the effective
data of contracting, a waiver of all or any part of the rights of the
United States in subject inventions. Small business firms and domestic
nonprofit organizations normally will receive the Patent Rights clause
of 952.227-71 which permits the contractor to retain title to subject
inventions, except in contracts for management or operation of a
Government-owned research or production facility and in contracts
involving exceptional circumstances or intelligence activities.
Therefore small business firms and nonprofit organizations normally need
not request a waiver.
48 CFR 952.231-70 Date of incurrence of cost.
In accordance with 931.205-32, insert the following clause when
advance understandings have been negotiated regarding costs incurred
prior to the contract effective date:
The Contractor shall be entitled to reimbursement for costs incurred
in an amount not to exceed $ ---- on or after ---- which, if incurred
after this contract has been entered into, would have been reimbursable
under the provisions of this contract.
(49 FR 12042, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984)
48 CFR 952.233-2 Service of protest.
As prescribed in 933.106, add the following to the end of the clause
at FAR 52.233-2:
Another copy of a protest lodged with the General Accounting Office
shall be furnished to the following address:
U.S. Department of Energy
Business Clearance Division (MA-441)
Forrestal Building, Room 1I-030
1000 Independence Avenue, SW.
Washington, DC 20585
Another copy of a protest lodged with the General Services
Administration Board of Contract Appeals shall be furnished to the
following address:
U.S. Department of Energy
Assistant General Counsel for Procurement and Finance (GC-34)
1000 Independence Avenue, SW
Washington, DC 20585
(51 FR 31339, Sept. 3, 1986)
48 CFR 952.235-70 Key personnel.
In accordance with 935.070, insert this clause.
The personnel specified in an attachment to this contract are
considered to be essential to the work being performed hereunder. Prior
to diverting any of the specified individuals to other programs, the
Contractor shall notify the Contracting Officer reasonably in advance
and shall submit justification (including proposed substitutions) in
sufficient detail to permit evaluation of the impact on the program. No
diversion shall be made by the contractor without the written consent of
the Contracting Officer: Provided, that the Contracting Officer may
ratify in writing such diversion and such ratification shall constitute
the consent of the Contracting Officer required by this clause. The
attachment to this contract may be amended from time to time during the
course of the contract to either add or delete personnel, as
appropriate.
(49 FR 12042, Mar. 28, 1984, as amended at 56 FR 41965, Aug. 26,
1991)
48 CFR 952.236 Construction and architect-engineer contracts.
48 CFR 952.236-70 Administrative terms for architect-engineer contracts.
As prescribed at 936.702(a) the following additional terms shall be
included in Standard Form 252, Item 6:
(a) Description of project. The contracting officer shall include.
(As full a description as is feasible should be inserted. If the
architect-engineer services are to be furnished for a construction
project, describe the facilities involved, including any auxiliary
facilities that may be required.)
(b) Statement of architect-engineer services. The contractor shall,
within the time specified in the contract, or if not specified therein,
in the shortest reasonable time, furnish for the construction project
the architect-engineer services described below, subject to such further
detailed requirements as may be appended to this contract by agreement
of the parties.
Note A: This form of contract provides for completion of the
architect-engineer services ''within the shortest reasonable time.'' The
form may be modified to provide for completion of separable parts of the
work at different times.
Note B: When title I, II, or III services are to be furnished, the
following language may be used to describe such services. Modifications
in the text of the language may be made to omit inappropriate items or,
where necessary, to meet particular circumstances.
(1) Conduct or arrange for, by subcontract or otherwise as approved
by the Contracting Officer, and supervise all necessary topographical
and other field surveys, the preparation of maps, and necessary test
boring and other surface investigations.
(2) Consult and collaborate with DOE to determine the requirements
which will govern the design of the project and to establish
architectural and engineering criteria for such design.
(3) Conduct preliminary studies, and prepare preliminary sketches,
drawings, layout plans, outline specifications, and reports showing
features and characteristics of the design proposed to meet DOE's
requirements. If more than three studies, including sketches, drawings,
plans, outline specifications, or documents are required because of
changes initiated by DOE, an equitable adjustment in the lump-sum
compensation will be made in accordance with provisions of the Changes
clause.
(4) The drawings, plans, and outline specifications and documents
shall be prepared in such form and furnished in such quantity as
directed by DOE.
Note: Specific quantities of the drawings, plans, outline
specifications, and documents should be indicated here or elsewhere in
the contract.
(5) Prepare preliminary estimates of cost and time schedule for (i)
completion of the design, working drawings, and specifications, and (ii)
construction.
(6) Prepare preliminary estimates of material quantities required for
construction.
(1) Upon approval by DOE of preliminary plans and estimates,
undertake the design of the construction project.
(2) Undertake restudy and redesign work due to minor deviations from
the approved preliminary work as may be required by DOE.
(3) Prepare and revise, for the approval of DOE, and furnish complete
sets of contract bidding documents, including working drawings, details,
and specifications for construction, in such form and quantity and
including such provisions as may be required by law or the directions of
DOE.
Note: Specific quantities of drawings and specifications should be
indicated here or elsewhere in the contract.
(4) Prepare, or when directed by DOE, participate with others in the
preparation of a detailed estimate of the cost of construction based on
the approved design and working drawings and specifications.
(5) Assist DOE in securing, analyzing, and evaluating construction
bids or proposals.
(6) When requested, consult with and advise DOE on any questions
which may arise in connection with the architect-engineer services
described in this contract.
(1) Furnish and maintain governing lines and benchmarks to provide
horizontal and vertical controls to which construction progress may be
referred.
(2) Check and approve or require revision of, all vendors' shop
drawings to assure conformity with the approved design and working
drawings and specifications.
(3) Inspect the execution of construction so as to assure adherence
to approved working drawings and specifications.
(4) Inspect construction workmanship and materials, and equipment,
and report to DOE as to their conformity or nonconformity to the
approved working drawings and specifications.
(5) Make or acquire such field or laboratory tests of construction
workmanship, materials, and equipment, as DOE may require or approve.
(6) Prepare estimates of reasonable amounts of increase or decrease
in contract price and/or contract completion time for contract
modification, evaluate proposal submitted by the constructor for such
contract adjustment and make recommendations to the Contracting Officer
for use in negotiating.
(7) Prepare reports and make recommendations on status of deliveries
or materials and equipment as DOE may require or approve.
(8) Prepare monthly and other reports of the progress of
construction, as may be required, and partial, interim, and final
estimates and reports of quantities and values of construction work
performed, for payment or other purposes.
(9) Furnish ------ set(s) of reproducible ''as-built'' record
drawings of the type specified by DOE and ------ set(s) of marked-up
specifications, showing construction as actually accomplished.
(49 FR 12042, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984)
48 CFR 952.236-71 Inspection in Architect-Engineer contracts.
As prescribed at 936.609-3 insert the following clause.
The Government, through any authorized representatives, has the right
at all reasonable times, to inspect, or otherwise evaluate the work
peformed or being performed hereunder and the premises in which it is
being performed. If any inspection, or evaluation is made by the
Government on the premises of the Contractor or a subcontractor, the
Contractor shall provide and shall require his subcontractors to provide
all reasonable facilities and assistance for the safety and convenience
of the Government representatives in the performance of their duties.
All inspections and evaluations shall be performed in such a manner as
will not unduly delay the work.
48 CFR 952.236-72 Nonrefundable fee for plans and specifications.
In accordance with the requirement at 936.202 include the following
in solicitations for construction.
A fee of $ ------ is required for the plans and specifications
referenced in this solicitation. Send check or money order to
---------- . The fee is not refundable. Plans and specifications need
not be returned.
(49 FR 12042, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984)
952.245 Clauses related to government property.
48 CFR 952.245-2 Government property (fixed-price contracts).
Modify FAR 52.245-2 by adding ''and the DOE Acquisition Regulation
Subpart 945.5,'' after the reference to FAR Subpart 45.5 in the first
sentence of paragraphs (e)(1) and (e)(2) of the clause.
48 CFR 952.245-5 Government property (cost reimbursement,
time-and-materials, or labor-hour contracts.)
Modify FAR 52.245-5 by adding ''and DOE Acquisition Regulation
Subpart 945.5'' after the reference to FAR Subpart 45.5 in paragraphs
(e)(1) and (e)(2) of the clause.
48 CFR 952.247-70 Foreign travel.
When foreign travel may be required under the contract insert the
following clause.
(a) Foreign travel, when charged directly, shall be subject to the
prior approval of the contracting officer for each separate trip
regardless of whether funds for such travel are contained in an approved
budget. Foreign travel is defined as any travel outside of Canada and
the United States and its territories and possessions.
(b) Request for approval shall be submitted at least 45 days prior to
the planned departure date, be on a Request for Approval of Foreign
Travel form, and when applicable, include a notification of proposed
soviet-bloc travel.
48 CFR 952.249 Clauses related to termination.
48 CFR 952.249-70 Termination clause for cost-reimbursement
architect-engineer contracts.
In accordance with the provisions prescribed at 949.505 include the
following clause in a cost-reimbursement architect-engineer contract.
(a) Notice of termination for default or convenience. The
Contracting Officer may at any time terminate performance of the work
under this contract in whole or from time to time in part for the
default of the architect-engineer or for the convenience of the
Government by written notice to the architect-engineer stating the
ground for termination. Such termination shall be effective in the
manner and upon the date specified in said notice and shall be without
prejudice to any claims which the Government may have against the
architect-engineer. Upon receipt of such notice and except as otherwise
directed by the contracting officer, the architect-engineer shall:
(1) Stop work under the contract on the date and to the extent
specified in the notice of termination;
(2) Place no further orders or subcontracts for materials, services,
or facilities, except as may be necessary for completion of such portion
of the work under the contract as is not terminated; and
(3) Terminate all orders and subcontracts to the extent they relate
to the performance of work terminated by the notice of termination.
(b) Termination for default.
(1) If the architect-engineer refuses or fails to prosecute the work,
or any separable part thereof, with such diligence as will ensure its
completion within the time specified in this contract, or any extension
thereof; or fails to complete said work within such time; or if the
architect-engineer fails to perform any of the other requirements of
this contract, and does not cure such failure within a period of 10 days
(or such longer period as the contracting officer may authorize in
writing) after receipt of notice from the contracting officer specifying
such failure, the contracting officer may terminate for default the
architect-engineer's right to proceed with the work as to which there
has been delay, provided that the performance of the work shall not be
terminated for default because of any delays in the completion of work
due to unforeseeable causes beyond the control and without the fault or
negligence of the architect-engineer, including, but not restricted to,
acts of God, or the public enemy, acts of the Government in either its
sovereign or contractual capacity, acts of another architect-engineer in
the performance of a contract with the Government, fires, floods,
epidemics, quarantine restrictions, strikes, freight embargoes, and
unusually severe weather or delay of subcontractors or suppliers arising
from unforeseeable causes beyond the control and without the fault or
negligence of both the architect-engineer and subarchitect-engineers or
suppliers; and if the architect-engineer within ten (10) days from the
beginning of any such delay (unless the contracting officer grants a
further period of time prior to the date of final settlement of the
contract) notifies the contracting officer in writing of the causes of
delay. The contracting officer shall ascertain the facts and the extent
of the delay and extend the time for completing the work when, in his
judgment, the findings of fact justify such an extension, and his
findings of fact thereon shall be final and conclusive on the parties
hereto, subject only to appeal by the architect-engineer to the head of
the agency or his designee in accordance with ''Disputes'' clause of
this contract.
(2) If, after notice of termination of this contract for default
under (1) above, it is determined for any reason that the
architect-engineer was not in default pursuant to (1), or that the
architect-engineer failure to perform or to make progress in performance
is due to causes beyond the control and without the fault or negligence
of the architect-engineer pursuant to the provisions of this clause
relating to excusable delays, the notice of termination shall be deemed
to have been issued for the convenience of the Government under this
clause, and the rights and obligations to the parties hereto shall in
such event be governed accordingly.
(c) Liability for costs on default. If performance of the work under
this contract is terminated for the default of the architect-engineer,
the Government may complete or employ any other person or persons to
complete the work, and the architect-engineer shall be liable to the
Government for increased costs occasioned the Government by the default.
(d) Terms of settlement. Upon the termination of performance of work
under this contract, full and complete settlement of all claims of the
architect-engineer with respect to the terminated work shall be made as
follows:
(1) Assumption of contractor's obligations. The Government shall
have the right in its decision to assume all obligations, commitments,
and claims that the architect-engineer may have theretofore in good
faith undertaken or incurred in connection with the terminated work, the
cost of which would be allowable in accordance with the provisions of
this contract; and the architect-engineer shall, as a condition of
receiving the payments mentioned in this article, execute and deliver
all such papers and take all such steps as the contracting officer may
require for the purpose of fully vesting in the Government all the
rights and benefits of the architect-engineer, related to such
obligations, commitments, and claims.
(2) Payments for allowable costs. The Government shall treat as
allowable costs all expenditures made in accordance with the clause
herein entitled ''Allowable cost and Payment,'' not previously so
allowed or otherwise credited.
(3) Payment for termination expense. If performance of work under
the contract is terminated for the convenience of the Government, the
Government shall reimburse the architect-engineer for such further
expenditures made after the date of termination for the protection of
Government property and for such legal and accounting services in
connection with settlement as are required or approved by the
contracting officer.
(4) Payments on account of fixed fee. If performance work under the
contract is terminated for the convenience of the Government, the
architect-engineer shall be paid that portion of the fixed fee which the
work actually completed, so determined by the contracting officer, bears
to the entire work under this contract less payments previously made on
account of the fee. If performance of the work under the contract is
terminated for the default of the architect-engineer, no further payment
beyond that amount due on completed work with appropriate fee payment,
shall accrue on account of the fixed price.
(5) Computation of amount due. In arriving at the amount, if any,
due the architect-engineer under this article, there shall be deducted
from what would otherwise be due (i) all unliquidated advances and all
other unliquidated payments on account theretofore made to the
contractor, (ii) any claims of the Government against the contractor in
connection with this contract, and (iii) all deductions due under the
terms of this contract and not otherwise recovered by or credited to the
Government.
(6) Property accounting and release. The architect-engineer shall
furnish the accounting for Government-owned property required by the
clause entitled ''Property'' and the assignment, closing financial
statement, and release required by the clause entitled ''Allowable Cost
and Payments.''
(e) Rights and remedies of the Government. The rights and remedies
of the Government provided in this article are in addition to any other
rights and remedies provided by law or under this contract.
(49 FR 12042, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984)
952.250 Clauses related to indemnification of contractors.
48 CFR 952.250-70 Nuclear hazards indemnity.
In accordance with the provisions prescribed in Subpart 950.70
include the following clause in applicable contracts.
(a) This clause is incorporated into this contract pursuant to the
authority contained in subsection 170(d) of the Atomic Energy Act of
1954, as amended (hereinafter called the Act.)
(1) The definitions set out in the Act shall apply to this article.
(2) The term ''contract location'' means any DOE facility,
installation, or site at which contractual activity under this contract
is being carried on, and any contractor-owned or controlled facility,
installation, or site at which the contractor is engaged in the
performance of contractual activity under this contract.
(3) The term ''extraordinary nuclear occurrence'' means an event
which DOE has determined to be an extraordinary nuclear occurrence as
defined in the Act. A determination of whether or not there has been an
extraordinary nuclear occurrence will be made in accordance with the
procedures in Subpart E of 10 CFR Part 140.
(b) Except as hereafter permitted or required in writing by DOE, the
contractor will not be required or provide or maintain, and will not
provide or maintain at Government expense, any form of financial
protection to cover public liability. DOE may at any time require in
writing that the contractor provide and maintain financial protection of
such a type and in such amount as DOE shall determine to be appropriate
to cover public liability, arising out of or in connection with the
contractual activity, provided that the costs of such financial
protection will be reimbursed to the contractor by DOE.
(c)(1) To the extent that the contractor and other persons
indemnified are not compensated by any financial protection, permitted
or required by DOE or the Nuclear Regulatory Commission (NRC), DOE will
indemnify the contractor and other persons indemnified against (i)
claims for public liability as described in subparagraph (2) of this
paragraph (c); and (ii) the reasonable cost of investigating and
settling claims and defending suits for damage for such public
liability, provided that DOE's liability, excluding such reasonable
costs, under all indemnity agreements entered into by DOE under section
170 of the Act, including this contract, shall not exceed $500 million
in the aggregate for each nuclear incident occurring within the United
States or $100 million in the aggregate for each nuclear incident
occurring outside the United States, irrespective of the number of
persons indemnified in connection with this contract.
(2) The public liability referred to in paragraph (c)(1) of this
section is public liability which (i) arises out of or in connection
with the contractual activity; and (ii) arises out of results from:
(A) A nuclear incident which takes place at a contract location; or
(B) A nuclear incident which takes place at any other location and
arises out of or in the course of the performance of contractual
activity under this contract by the contractor's employees, individual
consultants, borrowed personnel or other persons for the consequence of
whose acts or omissions the contractor is liable, provided that such
incident is not covered by any other indemnity agreement entered into by
DOE or the NRC pursuant to section 170 of the Act: or
(C) A nuclear incident which arises out of or in the course of
transportation of source, special nuclear, or by-product materials to or
from a contract location, provided such incident is not covered by any
indemnity agreement entered into by DOE with the transporting carrier,
or with a carrier's organization acting for the benefit of the
transporting carrier, or with a licensee of NRC, pursuant to section 170
of the Act; or
(D) A nuclear incident which involves items (such as equipment,
material, facilities, or design or other data) produced or delivered
under this contract, provided such incident is not covered by any other
indemnity agreement entered into by DOE or NRC pursuant to section 170
of the Act.
(d) In the event of an extraordinary nuclear occurrence which:
(1) Arises out of or results from or occurs in the course of the
construction, possesson, or operation of a production or utilization
facility, or
(2) Arises out of or results from or occurs in the course of
transportation of source material, by-product material, or special
nuclear material to or from a production or utilization faclility, or
(3) During the course of the contract activity, arises out of or
results from the possession, operation, or use by the contractor or a
subcontractor of a device utilizing special nuclear material or
by-product material. DOE and the contractor on behalf of itself and
other persons indemnified, insofar as their interests appear, each
agrees to waive:
(i) Any issue or defense as to the conduct of the claimant or fault
of persons indemnified, including, but not limited to:
(A) Negligence;
(B) Contributory negligence;
(C) Assumption of risk; or
(D) Unforeseeable intervening causes, whether involving the conduct
of a third person or an act of God.
As used herein, ''conduct of the claimant'' includes conduct of
persons through whom the claimant derives its cause of action;
(ii) Any issue or defense as to charitable or governmental immunity;
(iii) Any issue or defense based on any statute of limitations, if
suit is instituted within 3 years from the date on which the claimant
first knew, or reasonably could have know, of his injury or change and
the cause thereof, but in no event more than 20 years after the date of
the nuclear incident. The waiver of any such issue or defense shall be
effective regardless of whether such issue or defense may otherwise be
deemed jurisdictional or relating to an element in the cause of action.
The waiver shall be judicially enforceable in accordance with its terms
by the claimant against the person indemnified.
(e) The waivers set forth in paragraph (d) of this clause:
(1) Shall not preclude a defense based upon a failure to take
reasonable steps to mitigate damages;
(2) Shall not apply to injury or damage to a claimant or to a
claimant's property which is intentionally sustained by the claimant or
which results from a nuclear incident intentionally and wrongfully
caused by the claimant;
(3) Shall not apply to injury to a claimant who is employed at the
site of and in connection with the activity where the extraordinary
nuclear occurrence takes place, if benefits therefore are either payable
or required to be provided under any workmen's compensation or
occupational disease law;
(4) Shall not apply to any claim for punitive or exemplary damages,
provided, with respect to any claim for wrongful death under any State
law which provides for damages only punitive in nature, this exclusion
does not apply to the extent that the claimant has sustained actual
damages, measured by the pecuniary injuries resulting from such death
but not to exceed the maximum amount otherwise recoverable under such
law;
(5) Shall not apply to any claim resulting from a nuclear incident
occurring outside the United States;
(6) Shall be effective only with respect to those obligations set
forth in this agreement and in insurance policies, contracts or other
proof of financial protection; and
(7) Shall not apply to, or prejudice the prosecution or defense of,
any claim or portion of claim which is not within the protection
afforded under (i) the limit of liability provisions under subsection
170e of the Atomic Energy Act of 1954, as amended, and (ii) the terms of
this agreement and the terms of insurance policies, contracts, or other
proof of financial protection.
(f) The contractor shall give immediate written notice to DOE of any
known action or claim filed or made against the contractor or other
person indemnified for public liability as defined in paragraph (c)(2).
Except as otherwise directed by DOE, the contractor shall furnish
promptly to DOE, copies of all pertinent papers received by the
contractor or filed with respect to such actions or claims. When DOE
shall determine that the Government will probably be required to make
indemnity payments under the provisions of (c) above, DOE shall have the
right to, and shall collaborate with, the contractor and any other
person indemnified in the settlement or defense of any action or claim
and shall have the right (1) to require the prior approval of DOE for
the payment of any claim that DOE may be required to indemnify
hereunder, and (2) to appear through the Attorney General on behalf of
the contractor or other person indemnified in any action brought upon
any claim that DOE may be required to indemnify hereunder, take charge
of such action, and settle or defend any such action. If the settlement
or defense of any such action or claim is undertaken by DOE, the
contractor or other person indemnified shall furnish all reasonable
assistance in effecting a settlement or asserting a defense.
(g) The indemnity provided by this clause shall not apply to public
liability arising out of, or in connection with, any activity that is
performed at a licensed facility, and that is covered by a Nuclear
Regulatory Commission indemnity agreement authorized by section 170 of
the Act.
(h) The obligations of DOE under this clause shall not be affected by
any failure on the part of the contractor to fulfill its obligation
under this contract and shall be unaffected by the death, disability, or
termination of existence of the contractor, or by the completion,
termination or expiration of this contract.
(i) The parties to this contract enter into this clause upon the
condition that this clause may be amended at any time by the mutual
written agreement of DOE and the contractor, and that such amendment
may, by its express terms, provide that it will apply to any nuclear
incidents which occur thereafter.
(j) The provisions of this clause shall not be limited in any way by,
and shall be interpreted without reference to, any other clause of this
contract, including the Disputes clause provided, however, that the
following provisions of the contract: Clause entitled, Covenant Against
Contingent Fees; the clause entitled, Officials Not to Benefit; and
the clause entitled, Examination of Records by Comptroller General; and
any provisions later added to this contract which under applicable
Federal law, including statutes, executive orders and regulations, are
required to be included in agreements of the type contained in this
article, shall apply to this clause.
Alternate I: The following paragraph will be included in for those
contracts containing the indemnity clause executed under the general
contract authority of DOE.
(k) To the extent that the Contractor is compensated by any financial
protection, or is indemnified pursuant to this clause or is effectively
relieved of public liability by an order or orders limiting same,
pursuant to section 170e of the Atomic Energy of 1954, as amended, the
provisions of clause providing General Authority Indemnity, shall not
apply.
(49 FR 12042, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984)
48 CFR 952.250-71 Nuclear hazards indemnity -- product liability.
Include the following clause as prescribed by the provisions of
Subpart 950.70.
(a) This clause is incorporated into this contract pursuant to the
authority contained in section 170d of the Atomic Energy Act of 1954, as
amended (hereinafter called the Act).
(1) The definitions set out in the Act shall apply to this article.
(2) The term ''product delivered under the contract'' means any
material, equipment, device, drawing, specification, or technical data
made, prepared, or acquired by the contractor in the course of
performance of the contract and delivered to DOE or to any other persons
as directed or approved by DOE.
(b) Except as hereafter permitted or required in writing by DOE, the
contractor will not be required to provide or maintain, and will not
provide or maintain at Government expense, any form of financial
protection to cover public liability. DOE may at any time require in
writing that the contractor provide and maintain financial protection of
such a type and in such amount as DOE shall determine to be appropriate
to cover public liability against which the contractor is indemnified
hereunder, provided that the costs of such financial protection will be
reimbursed to the contractor by DOE.
(c)(1) To the extent that the contractor and other persons
indemnified are not compensated by any financial protection permitted or
required by DOE or the Nuclear Regulatory Commission, (NRC), DOE will
indemnify the contractor, and other persons indemnified, against (i)
claims for public liability as described in subparagraph (2) of this
paragraph (c); and (ii) the reasonable costs of investigating and
settling claims, and defending suits for damages for such public
liability, provided that DOE's liability, excluding such reasonable
costs, under all indemnity agreements entered into by DOE under section
170 of the Act, including this contract, shall not exceed $500 million
in the aggregate for each nuclear incident occurring within the United
States or $100 million in the aggregate for each nuclear incident
occurring outside the United States, irrespective of the number of
persons indemnified in connection with this contract.
(2) The public liability referred to in subparagraph (1) of this
section is public liability which (i) arises out of, or in connection
with, the contractual activity; and (ii) arises out of, or results
from, a product delivered under the contract, but does not include
liability for a nuclear incident which is covered by any other indemnity
agreement entered into by DOE or NRC pursuant to section 170 of the Act.
(d) The contractor shall give immediate written notice to DOE of any
known action or claim filed or made against the contractor or other
person indemnified for public liability as defined in paragraph (c)(2).
Except as otherwise directed by DOE, the contractor shall furnish
promptly to DOE copies of all pertinent papers received by the
contractor or filed with respect to such actions of claims. When DOE
shall determine that the Government will probably be required to make
indemnity payments under the provisions or (c) above; DOE shall have
the right to, and shall collaborate with, the contractor and any other
person indemnified in the settlement or defense of any action or claim
and shall have the right, (1) to require the prior approval of DOE for
payment of any claim that DOE may be required to indemnify hereunder,
and (2) to appear through the Attorney General on behalf of the
contractor or other person indemnified in any action brought upon any
claim that DOE may be required to indemnify hereunder, take charge of
such action, and settle or defend any such action. If the settlement or
defense of any such action or claim is undertaken by DOE, the contractor
or other person indemnified shall furnish all reasonable assistance in
effecting a settlement or asserting a defense.
(e) The obligations of DOE under this clause shall not be affected by
any failure on the part of the contractor to fulfill its obligations
under this contract, and shall be unaffected by the death, disability,
or termination of existence of the contractor or by the completion,
termination, or expiration of this contract.
(f) The parties to this contract enter into this article upon the
condition that this clause may be amended at any time by the mutual
written agreement of DOE and the contractor and that such amendment may,
by its express terms, provide that it will apply to any nuclear
incidents which occur thereafter.
(g) The provisions of this clause shall not be limited in any way by,
and shall be interpreted without reference to, any other clause of this
contract, including the Disputes clause, provided, however, that the
following provisions of the contract: Clause entitled, Convenant
Against Contingent Fees; Clause entitled, Officials Not to Benefit;
Clause entitled, Assignment of Claims; and Clause entitled, Examination
of Records by Comptroller General; and any provisions later added to
this contract which, under applicable Federal law, inlcuding statutes,
executive orders, and regulations, are required to be included in
agreements of this type contained in this clause, shall apply to this
clause.
Alternate I: The following section will be added for in those
contracts containing indemnity agreements executed under the general
contract authority of DOE:
(h) To the extent that the contractor is compensated by any financial
protection, or is indemnified pursuant to this clause, or is effectively
relieved of public liability by an order or orders limiting same
pursuant to section 170e of the Atomic Energy Act of 1954, as amended,
the provisions of clause providing General Authority Indemnity, shall
not apply.
(49 FR 12042, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984)
48 CFR 952.250-72 Indemnity assurance to architect-engineer or supplier
prior to operation of a production or utilization facility.
Include the following clause in accordance with the provisions of
Subpart 950.70.
(a)(1) The definitions set out in the Atomic Energy Act of 1954, as
amended (hereinafter called the Act), shall apply to this clause.
(2) The services or supplies furnished under this agreement are
intended to be used in connection with the construction and/or operation
of a production or utilization facility.
(3) DOE will use its best efforts to include in any contract for the
operation of such facility, an agreement based on the then current
approved form of indemnity agreement under section 170d of the Atomic
Energy Act of 1954, as amended, whereby DOE will indemnify all persons
indemnified, including the contractor, against public liability for
nuclear incidents arising out of or in connection with contractual
activities under the contract for the operation of said facility in
accordance with the authority provided in subsection 170d of the Act.
(4)(i) DOE will enter into an indemnity agreement in accordance with
the authority provided in subsection 170d of the Act with the
contractor, without further consideration from the contractor, at any
time all of the following circumstances are present:
(A) The services or supplies furnished under this contract are being
used in connection with any activity or situation which involves a risk
of substantial nuclear incident; and
(B) there is not in effect an indemnity agreement as described in
subparagraph (3) of this clause; and
(C) DOE's authority to enter into agreements of indemnification under
section 170(d) of the Act has not expired or been so amended as to
deprive DOE of authority to enter into such an agreement.
(b) In that agreement, DOE will indemnify the contractor and other
persons indemnified against public liability arising out of, or in
connection with, the contractual activity of this contract.
(c) Such agreement will be based on the then current approved form of
section 170d indemnity agreement used in contracts between DOE and its
contractors, and shall further include an obligation to indemnify the
contractor, and persons indemnified for such public liability arising
out of, or resulting from, nuclear incidents occurring between the time
when the services or supplies furnished under this contract are used in
connection with any activity or situation which involves risk of a
substantial nuclear incident and the time when such agreement is
executed.
(d) The indemnity provided by DOE under all indemnity agreements
entered into by DOE under section 170 of the Act, including this
agreement, shall not exceed $500 million in the aggregate for each
nuclear incident, without regard to the number of persons indemnified,
excluding the reasonable costs of investigating and settling claims and
defending suits for damages, provided, however, that with respect to
incidents occurring outside the United States, such aggregate indemnity
shall not exceed $100 million, including such reasonable costs.
48 CFR 952.251-70 Contractor employee travel discounts.
As prescribed in Subpart 951.70, the following provision/clause will
be included in all cost-reimbursable solicitations and resulting
contracts, or contract modifications, as applicable.
Consistent with contract-authorized travel requirements, contractor
employees shall make use of the travel discounts offered to Federal
travelers, through use of contracted airlines discount air fares, hotels
and motels lodging rates and car rental companies, when use of such
discounts would result in lower overall trip costs and the discounted
services are reasonably available to contractor employees performing
official Government contract business. Vendors providing these services
may require that the contractor employee traveling on Government
business be furnished with a letter of identification signed by the
authorized contracting officer.
(a) Contracted airlines. Airlines participating in travel discounts
are listed in the Federal Travel Directory (FTD), published monthly by
the General Services Administration (GSA). Regulations governing the
use of contracted airlines are contained in the Federal Property
Management Regulation (FPMR), Temporary Regulation A-30. Temporary
Regulation A-30 stipulates that cost-reimbursable contractor employees
may obtain discount air fares by use of a Government Transportation
Request (GTR), Standard Form 1169, cash or personal credit cards. When
the GTR is used, contracting officers may issue a blanket GTR for a
period of not less than two weeks nor more than one month. In unusual
circumstances, such as prolonged or international travel, the
contracting officer may extend the period for which a blanket GTR is
effective to a maximum of three months. Contractors will ensure that
their employees traveling under GTR's provide the GTR number to the
contracted airlines for entry on individual tickets and on month-end
billings to the contractor.
(b) Hotels/motels. Participating hotels and motels which extend
discounts are listed in the FTD, which shows rates, facilities, and
identifies by code those which offer reduced rates to cost-reimbursable
contractor employees while traveling on official contract business.
(c) Car rentals. The Military Traffic Management Command (MTMC)
Department of Defense, negotiates rate agreements with car rental
companies for special flat rates and unlimited mileage. Participating
car rental companies which offer these terms on to cost-reimbursable
contractor employees while traveling on official contract business are
listed in the FTD.
(d) Procedures for obtaining service. (1) Identification and method
of payment requirements for participating Federal contracted airlines
are listed in the FTR. Travel discount air fares may be ordered by the
issuance of a GTR either directly to the contractor, or to a Scheduled
Airline Travel Office (SATO) or Federal Travel Management Center (FTMC),
provided the letter of identification signed by the cognizant
contracting officer accompanies the order. In appropriate instances,
such as geographical proximity, contractors may obtain discount air
fares through a DOE office or a cooperating local travel agency when
neither a SATO or FTMC is available. Some airlines allow the purchase
of discounted air fares with cash or credit card.
(2) In the case of hotel and motel accommodations, reservations may
be made by the contractor employee directly with the hotel or motel but
the employee must display, on arrival, the letter of identification and
any other identification required by the hotel or motel proprietorship.
(3) For car rentals, generally the same procedures as in (d)(2) above
will be followed in arranging reservations and obtaining discounts.
(e) Standard letter of identification. Contractors shall prepare for
the authorizing contracting officer a letter of identification based on
the following format:
To: (Source of ticketing, accommodations or rental)
Subject: Official Travel of Government Contractor
(Full name of traveler), bearer of this letter, is an employee of
(company name) which is under contract to this agency under the
Government contract (contract number). During the period of the
contract (give dates), the employee is eligible and authorized to use
available discount rates for contract-related travel in accordance with
your contract and/or agreement with the Federal Government.
(Signature, title and telephone number of the contracting officer)
(54 FR 17737, Apr. 25, 1989; 54 FR 26045, June 21, 1989)
48 CFR 952.251-70 SUBCHAPTER I -- AGENCY SUPPLEMENTARY REGULATIONS
48 CFR 952.251-70 Pt. 970
48 CFR 952.251-70 PART 970 -- DOE MANAGEMENT AND OPERATING CONTRACTS
Sec.
970.0000 Scope of part.
970.0001 Renewal of management and operating contracts.
48 CFR 952.251-70 Subpart 970.03 -- (Reserved)
48 CFR 952.251-70 Subpart 970.04 -- Administrative Matters
970.0404 Safeguarding classified information.
970.0404-1 Definitions.
970.0404-2 General.
970.0404-3 Responsibilities of contracting officers.
970.0404-4 Contract clauses.
970.0406 Uniform reporting system.
970.0407 Record retention requirements.
48 CFR 952.251-70 Subpart 970.08 -- Required Sources of Supplies and
Services
970.0801 Excess personal property.
970.0803 Acquisition of utility services.
48 CFR 952.251-70 Subpart 970.09 -- Contractor Qualifications
970.0905 Organizational conflicts of interest.
48 CFR 952.251-70 Subpart 970.10 -- Specifications, Standards and Other
Statement of Work Descriptions
970.1001 General.
970.1002 Statement of work.
48 CFR 952.251-70 Subpart 970.15 -- Contracting by Negotiation
970.1508 Price negotiation.
970.1508-1 Cost or pricing data.
970.1509 Fees for management and operating contracts.
970.1509-1 Fee policy.
970.1509-2 Special considerations -- educational institutions.
970.1509-3 Special considerations -- nonprofit organizations (other
than educational institutions).
970.1509-4 Considerations and techniques for determining fees.
970.1509-5 Limitations.
970.1509-6 Fee base.
970.1509-7 Special equipment purchases.
970.1509-8 Special considerations -- award fee.
48 CFR 952.251-70 Subpart 970.19 -- Small Business and Small
Disadvantaged Business Concerns
970.1901 General.
48 CFR 952.251-70 Subpart 970.20 -- (Reserved)
48 CFR 952.251-70 Subpart 970.22 -- Application of Labor Policies
970.2201 Basic labor policies.
970.2206 Walsh-Healey Public Contracts Act.
970.2208 Equal employment opportunity.
970.2210 Service Contract Act.
970.2270 Unemployment compensation.
970.2271 Workers' compensation insurance.
970.2272 Conduct of employees and consultants of DOE management and
operating contractors.
970.2273 Administrative controls and criteria for application of the
Davis-Bacon Act in operational or maintenance activities.
48 CFR 952.251-70 Subpart 970.23 -- Environmental, Conservation, and
Occupational Safety Programs
970.2303 Hazardous materials identification and material safety.
970.2303-1 General.
970.2303-2 Clauses.
48 CFR 952.251-70 Subpart 970.25 -- (Reserved)
48 CFR 952.251-70 Subpart 970.27 -- Patents, Data, and Copyrights
970.2701 General.
970.2702 Procedures.
48 CFR 952.251-70 Subpart 970.28 -- Bonds and Insurance
970.2870 Indemnification.
48 CFR 952.251-70 Subpart 970.29 -- Taxes
970.2901 Exemptions from Federal excise taxes.
970.2902 State and local taxes.
970.2903 Contract clauses.
48 CFR 952.251-70 Subpart 970.30 -- Cost Accounting Standards
970.3001 General.
970.3001-1 Applicability.
970.3001-2 Limitations.
48 CFR 952.251-70 Subpart 970.31 -- Contract Cost Principles and
Procedures
970.3100 Scope and applicability of subpart.
970.3100-1 Definitions.
970.3100-2 Responsibilities.
970.3100-3 Deviation.
970.3101 General policy.
970.3101-1 Actual cost basis.
970.3101-2 Direct and indirect costs.
970.3101-3 General basis for reimbursement of costs.
970.3101-4 Cost determination based on audit.
970.3101-5 Contractor's system of accounting.
970.3101-6 Advance understandings on particular cost items.
970.3102 Application of cost principles.
970.3102-1 General and administrative expenses.
970.3102-2 Compensation for personal services.
970.3102-3 Cost of money.
970.3102-4 Depreciation.
970.3102-5 Employee morale, health, welfare, food service, and
dormitory costs.
970.3102-6 Facilities (plant and equipment).
970.3102-7 Legislative lobbying costs.
970.3102-8 Membership in trade, business and professional
organizations.
970.3102-9 Outside technical and professional consultants.
970.3102-10 Overtime, shift, and holiday premiums.
970.3102-11 Page charges in scientific journals.
970.3102-12 Plant reconversion costs.
970.3102-13 Precontract costs.
970.3102-14 Preparatory and make-ready costs.
970.3102-15 Procurement: Subcontracts, contractor-affiliated
sources, and leases.
970.3102-16 Relocation costs.
970.3102-17 Travel costs.
970.3102-18 Special funds in the construction industry.
970.3102-19 Public relations and advertising.
970.3102-20 Defense of fraud proceedings.
970.3102-21 Fines and penalties.
970.3102-22 Avoidable costs for profit making contractors.
970.3103 Contract clauses.
48 CFR 952.251-70 Subpart 970.32 -- Contract Financing
970.3201 General.
970.3202 Advance payments.
970.3270 Clauses.
970.3271 Special bank account agreement.
48 CFR 952.251-70 Subpart 970.36 -- Construction and A-E Contracts
970.3601 Special construction clause for operating contracts.
48 CFR 952.251-70 Subpart 970.49 -- Termination of Contracts
970.4901 General.
970.4902 Termination clause.
48 CFR 952.251-70 Subpart 970.51 -- Use of Government Sources by
Contractors
970.5101 Use of Government supply sources.
970.5102 Use of interagency motor pool vehicles and related services.
48 CFR 952.251-70 Subpart 970.52 -- Contract Clauses for Management and
Operating Contracts
970.5201 General policy.
970.5202 Deviations.
970.5203 Modifications and notes to FAR clauses.
970.5203-1 Covenant against contingent fees.
970.5203-2 Examination of records by Comptroller General.
970.5203-3 Buy American Act.
970.5204 Clauses to be used in addition to or in place of the
contract clauses set forth in FAR Part 52 and DEAR Part 952.
970.5204-1 Security.
970.5204-2 Safety and health (Government-owned or leased).
970.5204-3 Buy American Act -- construction materials.
970.5204-4 New Mexico Gross Receipts and Compensating Tax.
970.5204-5 Disclosure of information.
970.5204-6 Nuclear hazards indemnity.
970.5204-7 Nuclear hazards indemnity -- product liability.
970.5204-8 Indemnity assurance to architect-engineer or supplier
prior to operation of a production or utilization facility.
970.5204-9 Accounts. records, and inspection.
970.5204-10 Foreign ownership, control, or influence over contractors
(FOCI).
970.5204-11 Changes.
970.5204-12 Contractor's organization.
970.5204-13 Allowable costs and fixed-fee (Management and Operating
contracts).
970.5204-14 Allowable costs and fixed-fee (support contracts).
970.5204-15 Obligation of funds.
970.5204-16 Payments and advances.
970.5204-17 Legislative lobbying cost prohibition.
970.5204-18 Definition of nonprofit and profit making management and
operating contractors and subcontractors.
970.5204-19 Printing clause for management and operating contracts.
970.5204-20 (Reserved)
970.5204-21 Property.
970.5204-22 Contractor purchasing system.
970.5204-23 Taxes.
970.5204-24 Subcontractor cost or pricing data.
970.5204-25 Workmanship and materials.
970.5204-26 Nuclear facility safety.
970.5204-27 Consultant or other comparable employment services of
contractor employees.
970.5204-28 Assignment.
970.5204-29 Permits or licenses.
970.5204-30 Notice of labor disputes.
970.5204-31 Litigation and claims.
970.5204-32 Required bond and insurance-exclusive of Government
property.
970.5204-33 Priorities and allocations.
970.5204-34 Sensitive foreign nations control.
970.5204-35 Controls in the national interest (unclassified contracts
with educational institutions).
970.5204-36 Organizational conflicts of interest (contracts with
universities where DOE has major investments in facilities but does not
own or lease the land).
970.5204-37 Statement of work (management and operating contracts).
970.5204-38 Special clause for procurement of construction.
970.5204-39 -- 970.5204-40 (Reserved)
970.5204-41 Preservation of individual occupational radiation
exposure records.
970.5204-42 Key personnel.
970.5204-43 Other Government contractors.
970.5204-44 (Reserved)
970.5204-45 Termination.
970.5204-48 (Reserved)
970.5204-50 Cost of schedule control systems.
970.5204-51 (Reserved)
970.5204-52 Foreign travel.
970.5204-53 Contractor employee travel discounts.
970.5204-54 Basic fee and award fee.
970.5204-55 Ceiling on certain liabilities for profit making
contractors.
970.5204-56 Determining avoidable costs.
48 CFR 952.251-70 Subpart 970.70 -- Use of DOE Facilities for Work for
Others
970.7000 Mission-oriented solicitation.
48 CFR 952.251-70 Subpart 970.71 -- Management and Operating Contractor
Purchasing
970.7101 General.
970.7102 DOE responsibility.
970.7103 Policies.
970.7104 Conditions of purchasing by management and operating
contractors.
970.7104-1 Contingent fees.
970.7104-2 Record retention requirements.
970.7104-3 Acquisition of utility services.
970.7104-4 Leasing of property, plant or equipment.
970.7104-5 Leasing of motor vehicles.
970.7104-6 Strategic and critical materials.
970.7104-7 Purchase of special items.
970.7104-8 Purchasing alternative determinations.
970.7104-9 Qualifications requirements.
970.7104-10 Organizational conflicts of interest.
970.7104-11 Cost of pricing data.
970.7104-12 Small business and small disadvantaged business concerns.
970.7104-13 Labor surplus area concerns.
970.7104-14 Convict labor.
970.7104-15 Contract Work Hours and Safety Standards Act (other than
construction contracts).
970.7104-16 Labor standards for contracts involving construction.
970.7104-17 Walsh-Healey Public Contracts Act.
970.7104-18 Equal employment opportunity.
970.7104-19 Service Contract Act.
970.7104-20 Special disabled and Vietnam Era veterans.
970.7104-21 Application of environmental and occupational safety and
health programs.
970.7104-22 Buy American.
970.7104-23 Patents, data, and copyrights.
970.7104-24 Bonds and insurance.
970.7104-25 Indemnification.
970.7104-26 Taxes.
970.7104-27 Audit of subcontractors.
970.7104-28 Construction and architect-engineer (A-E) contracts.
970.7104-29 Quality assurance.
970.7104-30 Termination.
970.7104-31 Authorization for subcontractors' use of Government
supply sources.
970.7104-32 Safeguarding classified information.
970.7104-33 Cost Accounting Standards.
970.7104-34 Clean air and water.
970.7104-35 Air transportation by U.S.-flag carriers.
970.7104-36 Acquisition of real property.
970.7104-37 Management, acquisition, and use of information
resources.
970.7104-38 Privacy Act.
970.7104-39 Officials not to benefit.
970.7104-40 Subcontractor reporting systems.
970.7104-41 Employment of the handicapped.
970.7104-42 Unclassified controlled nuclear information.
970.7104-43 Government property.
970.7104-44 Foreign travel.
970.7104-45 Anti-Kickback Enforcement Act of 1986.
970.7104-46 Setoff of assigned subcontract proceeds.
970.7104-47 Additional flowdown and extension provisions.
970.7105 Purchasing from contractor-affiliated sources.
970.7106 Procedures for handling mistakes relating to management and
operating contractor purchases.
970.7107 Protest of management and operating contractor procurements.
970.7108 Review and approval.
970.7109 Advance notification.
970.7110 Nuclear material transfers.
Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C.
2201), sec. 644 of the Department of Energy Organization Act, Pub. L.
95-91 (42 U.S.C. 7254), sec. 201 of the Federal Civilian Employee and
Contractor Travel Expenses Act of 1985 (41 U.S.C. 420) and sec. 1534 of
the Department of Defense Authorization Act, 1986, Pub. L. 99-145 (42
U.S.C. 7256a), as amended.
Source: 49 FR 12063, Mar. 28, 1984, unless otherwise noted.
48 CFR 970.0000 Scope of part.
This part provides Departmental requirements and provisions regarding
award and administration of management and operating contracts as
defined at FAR Subpart 17.6 and Subpart 917.6 of this chapter. Use of a
management and operating contract must be authorized by the Secretary,
Deputy or Undersecretary. For administrative convenience, the subparts
of this part are arranged in the same numeric sequence as the parts of
the FAR. Thus, for example, requirements regarding Small Business are
found at 970.19 and guidance regarding Contract Clauses is found at
970.52. To the extent possible the same subpart section and subsection
Titles of the FAR are applied in this Part 970. There are some
difference for convenience. When there is no specific guidance of a FAR
part/ section or applicability of a FAR part/section to DOE management
and operating contracts a subpart or section will not be included.
48 CFR 970.0001 Renewal of management and operating contracts.
(a) In accordance with applicable law, rules, or regulations and FAR
17.605, competition of existing management and operating contracts will
be sought whenever it appears likely that the Government's position may
be meaningfully improved in terms of cost or performance, unless it is
determined that to change a contractor would be contrary to the best
interest of the Government. Except in those cases where the contract
specifically permits the Government to bring in a replacement
contractor, it is not practical in most instances to compete a
management and operating contract which includes major Government-owned
facilities on contractor-owned or leased sites. In such cases, the
alternatives would be to extend the contract or to allow the contract to
expire and, if the work is to be continued, place all or some part of
the work with another contractor at a different site.
(b) The following factors, as a minimum, shall effect whether an
existing management and operating contract should be completed.
(1) Overall performance of an incumbent contractor including specific
consideration of the contractor's administrative, environmental,
safeguards and security, safety, health, site planning, maintenance and
construction, facility management, energy conservation program
considerations, cost, schedule and technical performance.
(2) Potential impact of change in contractors on programmatic
activities.
(3) The likelihood that qualified industrial firms or other
organizations will compete for the contract.
48 CFR 970.0001 Subpart 970.03 -- (Reserved)
48 CFR 970.0001 Subpart 970.04 -- Administrative Matters
970.0404 Safeguarding classified information.
48 CFR 970.0404-1 Definitions.
Classified Information means any information or material that is
owned by or produced for, or is under the control of the United States
Government, and determined pursuant to provisions of Executive Order
12356, April 2, 1982 (47 FR 14874, April 6, 1982), or prior orders, or
as authorized under the Atomic Energy Act of 1954, as amended, to
require protection against unauthorized disclosure, and is so
designated.
Restricted Data means data which is defined in section II, of the
Atomic Energy Act of 1954, as amended, as ''all data concerning: (1)
Design, manufacture, or utilization of atomic weapons; (2) the
production of special nuclear material; or (3) the use of special
nuclear material in the production of energy, but shall not include data
declassified or removed from the Restricted Data category pursuant to
section 142.''
(49 FR 12063, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984)
48 CFR 970.0404-2 General.
(a) The basis of DOE's security requirements is the Atomic Energy Act
of 1954, as amended.
(b) DOE regulations concerning national security information are
codified at 10 CFR Part 1045 and Part 710. Supplemental security
material is found in the DOE Directives and Orders system. Foreign
ownership, control, or influence over contractors as it relates to
security and discussed at 904.70 also applies to management and
operating contracts. Regulations pertaining to the protection of
restricted data is found under 10 CFR Part 1016.
(c) Statutory requirements to be observed in connection with the
release of Restricted Data to foreign governments are contained in the
Atomic Energy Act of 1954, Sections 141 and 144.
(d) Section 148 of the Atomic Energy Act (42 U.S.C. 2168) prohibits
the unauthorized dissemination of unclassified nuclear information with
respect to the atomic energy defense programs pertaining to:
(1) The design of production facilities or utilization facilities;
(2) Security measures (including security plans, procedures, and
equipment) for the physical protection of: (i) Production or
utilization facilities, (ii) nuclear material contained in such
facilites, or (iii) nuclear materials in transit; or
(3) The design, manufacture, or utilization of any atomic weapon or
component if the design, manufacture, or utilization of such weapon or
component was contained in any information declassified or removed from
the Restricted Data category pursuant to section 142 of the Atomic
Energy Act.
(49 FR 12063, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984)
48 CFR 970.0404-3 Responsibilities of contracting officers.
(a) If access to Restricted Data may be required, during the
solicitation process for a management and operating contract security
clearances shall be obtained as noted in DOE Order 5631.2
(b) Management and operating contracts which may require the
processing or storage of Restricted Data or Special Nuclear Material
require application of the provisions of DOE Orders 5634.1; 5635.1;
and 5632.2.
48 CFR 970.0404-4 Contract clauses.
(a) The security clauses to be used in DOE management and operating
contracts are found at 970.5204. They are:
(1) Security and Classification, 970.5204-1. This clause is required
in management and operating contracts under section 41 (ownership and
operation of production facilities) of the Atomic Energy Act of 1954, as
amended; and all management and operating contracts which involve
classified information.
(2) (Reserved)
(3) Sensitive foreign nation controls, 970.5204-34. This clause is
required in all management and operating contracts.
(4) Foreign ownership, control, or influence, 970.5204-10. The clause
is required in all management and operating contracts.
(b) The clause at 970.5204-5, Disclosure of Information may be used
in place of the clauses entitled ''Security'' and ''Classification'' in
contracts for work that are not likely to produce classified information
or restricted data.
(c) Include the clause at 952.204-73 in a solicitation for a
management and operating contract.
(49 FR 12063, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984, as amended
at 52 FR 38426, Oct. 16, 1987)
48 CFR 970.0406 Uniform reporting system.
DOE 5700.7B, Work Authorization System, of September 24, 1986,
provides specific guidance with respect to the applicability of the
Uniform Reporting System to management and operating contracts. It
provides that the Uniform Reporting System plans and reports be used
whenever management reports on work packages or tasks are necessitated
by the nature of the work package. The specific plans and reports to be
used and their frequency are negotiated between the program manager,
through the responsible operations office, and the contractor, and will
be negotiated based on the versions of the DOE Orders cited in
904.601-71 and this subsection 970.0406 in effect at the time of
negotiation, and 5 CFR 1320.4 and 1320.6.
(52 FR 28717, Aug. 3, 1987)
48 CFR 970.0407 Record retention requirements.
The requirements of FAR Subpart 4.7 do not apply to management and
operating contractors. The contract shall include clause at 970.5204-9.
(49 FR 12063, Mar. 28, 1984, as amended at 53 FR 24231, June 27,
1988)
48 CFR 970.0407 Subpart 970.08 -- Required Sources of Supplies and Services
48 CFR 970.0801 Excess personal property.
The provisions of FAR Subpart 8.1, FPMR 41 CFR 101-43, and DOE-PMR 41
CFR 109-43 apply.
48 CFR 970.0803 Acquisition of utility services.
(a) Utility services defined at FAR 8.301 for the furnishing of
electricity, gas (natural or manufactured), steam, water, and/or
sewerage to facilities owned or leased by DOE shall be acquired directly
by DOE and not by a contractor using a subcontractor arrangement, except
as provided in (b) below.
(b) Where it is determined to be in the best interest of the
Government, a Contracting Activity may authorize a management and
operating contractor for a facility to acquire such utility service for
the facility, after requesting and receiving concurrence to make such an
authorization from the Director, Office of Project and Facilities
Management (OPFM), at Headquarters. Any request for such concurrence
should be included in the Utility Service Requirements and Options
Studies required by DOE directives in subseries 4540 (Public Services).
Alternatively, it may be made in a separate document submitted to the
Director, OPFM early in the acquisition cycle. Any request shall set
forth why it is in the best interest of the DOE to acquire utility
service(s) by subcontract, i.e., what the benefits are, such as economic
advantage.
(c) The requirements of FAR subpart 8.3, this section, and DOE
directives in subseries 4540 shall be applied to a subcontract level
acquisition for furnishing utility services to a facility owned or
leased by DOE.
(d) Requirements for Headquarters review and approval of proposed
solicitations, contracts, and subcontracts, and modifications thereto,
for the acquisition of utility services are summarized at 908.307.
(56 FR 41965, Aug. 26, 1991)
48 CFR 970.0803 Subpart 970.09 -- Contractor Qualifications
48 CFR 970.0905 Organizational conflicts of interest.
All management and operating contracts shall contain an appropriate
organizational conflict of interest clause. The disclosure or
representation requirement of 909.570-6 and an appropriate clause such
as those found at 952.209-71 and 952.209-72 shall be included in
solicitations and resulting contracts. The contracting officer shall
consider provisions which assure appropriate restraints on
intercorporate relations between the contractor's organization and
personnel operating the Department's facility and its parent corporate
body and affiliates, including personnel access to the facility,
technical transfer of information from the facility, and the
availability from the facility of other advantages flowing from
performance of the contract.
(49 FR 12063, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984, as amended
at 53 FR 24231, June 27, 1988)
48 CFR 970.0905 Subpart 970.10 -- Specifications, Standards and Other Statement of Work Descriptions
48 CFR 970.1001 General.
Department of Energy management and operation contracts provide for
the operation, maintenance, or support, on behalf of the Department,
Government-owned or controlled research, development, special production
or testing facilities established wholly for or principally devoted to
one or more major programs of the Department.
48 CFR 970.1002 Statement of work.
(a) While it is not feasible to set forth standard language which
would apply to every contract situation, language must be designed for
inclusion in a management and operating contract to describe clearly the
work being undertaken; the controls, as appropriate, to be exercised by
DOE over the performance of that work; and the relationship
contemplated between the parties.
(b) The language shall also include the following with respect to
subcontracting performance of the work described pursuant to (a) of this
section: ''The contractor shall, when directed by DOE and may, but only
when authorized by DOE, enter into subcontracts for the performance of
any part of the work under this clause''.
(c) In management and operating contracts when the contractor is
expected to perform no Davis-Bacon work with his own forces, the special
clause in 970.5204-38 shall be included in the language.
(d) The provisions required above shall be set forth in a Statement
of work clause to be included in the contract.
48 CFR 970.1002 Subpart 970.15 -- Contracting by Negotiation
48 CFR 970.1508 Price negotiation.
(a) Management and operating contract prices (fee) and DOE
obligations to support contract performance shall be governed by:
(1) The level of activity authorized and the amount of funds
appropriated for DOE approved programs by specific program legislation;
(2) Congressional budget and reporting limitations;
(3) The amount of funds apportioned to DOE;
(4) The amount of obligational authority allotted to program
officials and Approved Funding Program limitations; and
(5) The amount of funds actually available to the DOE operating
activity as determined in accordance with applicable financial
regulations and directives.
(b) Funds shall be obligated and made available by contract provision
or modification after the funds become available for obligation for
payment to support performance of DOE approved projects, tasks, work
authorizations, or services.
(c) Management and operating contracts shall contain appropriate
provisions to limit contractor expenditures to the overall amount of
funds available and obligated. The clause at 970.5204-15 shall be used
for this purpose.
48 CFR 970.1508-1 Cost or pricing data.
The certification requirements of FAR 15.804-2, are not applied to
DOE cost-reimbursement management and operating contracts.
(49 FR 12063, Mar. 28, 1984, as amended at 53 FR 24231, June 27,
1988)
970.1509 Fees for management and operating contracts.
48 CFR 970.1509-1 Fee policy.
(a) DOE mangement and operating contractors, except educational
institutions, may be paid a fee. The fee for a management and operating
contract shall be an amount commensurate with the difficulty of the work
and the level of required skills, demonstrated excellence in
performance, and where applicable, an amount which recognizes contractor
contributions or utilizations of their own facilities or other
investment capital.
(b) Fee objectives and amounts are to be determined for each
contract. Standard fees or across the board agreements will not be used
or made. Due to the nature of funding management and operating
contracts, it is anticipated that fees shall be established in
accordance with the funding cycle; however, a longer period may be
used, particulary for production efforts.
(c) Fee amounts payable on contracts for administration, management,
operation, and on-site support of Government-owned facilities shall be
established in accordance with this part. Amounts payable shall not
exceed maximum amounts derived from the appropriate fee schedule
established for this purpose. Request to pay fees in excess of the
maximum will be sent to the Procurement Executive, for review and
approval.
(d) Maximum fees for those management and operating contracts that
provide support services shall be determined using the schedule(s) most
closely related to the service(s) to be performed. This may be either
the production and/or R&D schedules (in some cases this could be both
schedules) or the maximum fee schedules for construction or construction
management cited in 915.971. If architect-engineer services are
involved, the weighted guidelines, profit-fee technique cited in 915.970
shall be applied.
(e) When a contract subject to this part requires a contractor to use
its own facilities or equipment, or other resources to make its own cost
investment for contract performance; e.g., when there is no
letter-of-credit financing, consideration will be given to approval of
fee amounts based on assigning weights to appropriate fee factors. The
weighted guidelines factors developed in 915.970 may be applied for this
purpose. However maximum fees as are discussed in 970.1509-1(c) and (d)
shall not be exceeded without the Procurement Executives approval.
48 CFR 970.1509-2 Specal considerations -- eductional institutions.
(a) DOE policy is generally not to pay fees for management and
operating contracts with educational institutions.
(b) Notwithstanding paragraph (a) of this section it may be, under
special circumstances, permissible to reimburse or pay a management
allowance to any educational institution provided such allowance can be
justified and has the approval of the Head of the Contracting Activity.
48 CFR 970.1509-3 Special consideration -- nonprofit organizations
(other than educational institutions).
(a) Unless there is reason to do otherwise, it is the general policy
of DOE to pay fees for a mangement and operating contract with a
nonprofit organization; however, it is a matter of negotiation whether
a fee will be paid in a given case.
(b) In computing the amounts to be paid, the tax status of the
nonprofit organization should be considered. It is difficult to
establish the degree to which the fee contributes to an organization's
overall net profit since the fee compensates for certain unallowable
costs and certain general and administrative expenses. It should be
assumed, however, there is an element of profit in the fees paid under
management and operating contracts.
(c) In order to assure consideration of the tax benefits of nonprofit
organizations the maximum payable fixed fee cited in the fee schedules
of this subpart should be reduced by at least 25%. However, depending
upon the circumstances and with appropriate justification, fees may be
paid between this reduced amount and the fee amount established by the
fee schedule.
48 CFR 970.1509-4 Considerations and techniques for determining fees.
(a) The intent of the fee policy stated in 970.1509-1 reflects
recognition that a fee is remuneration to contractors for the
entrepreneurial function of organizing and managing resources, the use
of contractor resources (including capital resources), and the
assumption of risk that all incurred costs (operating and capital) may
not be reimbursable.
(b) Use of a purely cost-based structured approach for determining
fee objectives and amounts for typical DOE management and operating
contracts is inappropriate considering the limited level of contractor
cost, capital goods, and operating capital outlays for performance of
such contracts. Instead of being solely cost-based, the desirable
approach calls for a structure that allows judgmental evaluation and
consideration of such significant factors, as outlined below, and the
selection of and assignment of appropriate fee values therefor:
(1) Management risk relating to performance, including: (i) The
quality and diversity of principal work tasks required to do the job,
(ii) the labor intensity of the job, (iii) the special control problems,
and (iv) the advance planning, forecasting and other such requirements;
(2) The presence or absence of financial risk, including the type and
terms of the contract;
(3) The relative difficulty of work, including consideration of
technical and administrative knowledge, skill, experience and clarity of
technical specifications;
(4) Degree and amount of contract work required to be performed by
and with the contractor's own resources, including the extent to which
the contractor contributes plant, equipment, computers, or working
capital (labor, etc.);
(5) Duration of project;
(6) Size and operation (number of locations, plants, differing
operation, etc.);
(7) Influence of alternative investment opportunities available to
the contractor (i.e., the extent to which undertaking a task for the
Government displaces a contractor's opportunity to make a profit with
the same staff and equipment in some other field of activity).
(8) The relationship of a proposed fee to fees being paid for similar
work;
(9) The extent to which the activity contemplated is fundamentally a
service being furnished to the Government or is an activity in which the
contractor has substantial independent interest, a factor especially
pertinent to research work which is closely allied to a contractor's own
program and to operations which involve furnishing research facilities
which would otherwise not be available because of their large cost;
(10) Benefits which may accrue to the contractor from gaining
experience and knowledge of how to do something, from establishing or
enhancing a reputation, or from being enabled to hold or expand a staff
whose loyalties are primarily to the contractor; and
(11) Other special considerations, including support of Government
programs such as those relating to small and minority business in
subcontracting, energy conservation, etc.
(c) The fee objective and amount for a particular negotiation is
established by judgmental considerations of the above factors, assigning
fee values as deemed appropriate for each factor, and totaling the
resulting amounts.
(d) In recognition of the complexities of this fee determination
process, and to assist in promoting a reasonable degree of consistency
and uniformity in its application, the fee schedules in 970.1509-5 set
forth the maximum amounts of fee that contracting activities are allowed
to award for a particular transaction without obtaining prior approval
of the Procurement Executive. In addition the fee amount established in
accordance with 970.1509-4 (a), (b) and (c) shall not be exceeded
without prior approval of the Procurement Executive. To facilitate
application of the schedules to a contract, the payable fee amounts
thereunder are related to the total expected level of cost expenditures
under the contract which is defined as the fee base.
48 CFR 970.1509-5 Limitations.
(a) Fee schedules representing the maximum allowable fee to be paid
under operating and management contracts have been established for the
following management and operating contract tasks or efforts.
(1) Production/Manufacturing and
(2) Research and Development
(b) The applicable schedules and maximum fees are:
(49 FR 12063, Mar. 28, 1984, as amended at 56 FR 28102, June 19,
1991)
48 CFR 970.1509-6 Fee base.
(a) The fee base is an estimate of necessary allowable costs to which
a fee factor has been applied to determine the maximum fee allowance.
It represents the cost of the production or R&D work to be performed,
exclusive of the cost of source and special nuclear materials;
estimated costs of land, buildings and facilities whether to be leased,
purchased or constructed; depreciation of Government facilities; and
any estimate of effort for which a separate fee is to be negotiated.
(b) The fee base, in addition to the above adjustments, shall
exclude:
(1) Any part of the following types of costs which are of such
magnitude or nature as to distort the technical and management effort
actually required of the contractor:
(i) Estimated cost of capital equipment (other than special
equipment) which the contractor procures by subcontract;
(ii) Estimated cost or price of subcontracts and other major
contractor procurements; and
(iii) Other simular costs.
(2) Special equipment as defined in 970.1509-7.
(3) Estimated cost of Government-furnished materials, services and
equipment;
(4) All estimates of costs not directly incurred by or reimbursed to
the operating contractor;
(5) Estimates of home office or corporate general and administrative
expenses that shall be reimbursed through the operating contract;
(6) Estimates of any independent research and development cost or bid
and proposal expenses that may be approved under the operating contract.
(c) In calculating the fee base for application of the production
schedule, the estimated cost of research and development work and of
process development work which goes beyond normal technical support
required to ensure continuity of operation shall be excluded. The
maximum fee for such R&D and process development work is calculated
separately, starting at the beginning of the R&D schedule.
(d) The schedules in this part are not intended to reflect
compensation for unusual architect-engineer or construction services
provided by the management and operating contractor. Such services are
normally covered by special agreements based on the policies applying to
architect-engineer or construction contracts. Fees paid for such
services shall be in addition to the operating fees and should be
calculated using the provisions of 915.9 relating to architect-engineer
or construction fees.
(e) The fee schedules provide the maximum fees payable within the
authority of the Head of Contracting Activity. There may be times
however, when the fee schedule does not reflect an adequate compensation
to the contractor (such as the use of its own facilities and capital).
Proposals to compensate a contractor in excess of the maximum fee
schedules shall be submitted to the Procurement Executive. Requests
should contain documentation and state specifically why the contractor
is entitled to additional fees. (See also, 970.1509-1(c)).
48 CFR 970.1509-7 Special equipment purchases.
(a) Special equipment is sometimes procured in conjunction with
management and operating contracts. When a contractor procures special
equipment, the DOE negotiating official shall determine separate fees
for the equipment and use the schedule in 915.971-5(f).
(b) In determining appropriate fees, factors such as complexity of
equipment, ratio of procurement transactions to volume of equipment to
be purchased and completeness of services should be considered. Where
possible, the reasonableness of the fees should be checked by their
relationship to actual costs of comparable procurement services.
(c) The maximum allowable fee for such services shall not exceed the
fee schedule set forth in 915.971-5(f) for such services as performed by
construction contractors. The fee is based on the estimated price of
the equipment being purchased.
(d) For purposes of this part, special equipment is equipment for
which the purchase price is of such a magnitude compared to the cost of
installation as to distort the amount of technical direction and
management effort required of the contractor. Generally, special
equipment is considered to be a capital-asset-type of equipment
(typically equipment costing more than $1,000 and having a service life
of more than two years) for which the cost of installation and handling
(including unloading, hauling and warehousing) is 5%, or less, of the
purchase price of the equipment. However, the determination of specific
items of equipment in this category requires application of judgment and
careful study of the circumstances involved in each project. This
category of equipment would generally include:
(1) Major items of prefabricated process or research equipment.
(2) Major items of preassembled equipment such as packaged boilers,
generators, machine tools, and large electrical equipment. In some
cases, it would also include special apparatus or devices such as
reactor vessels and reactor charging machines.
48 CFR 970.1509-8 Special considerations -- award fee.
(a) When a management and operating contract is to be awarded on an
award-fee basis, several special considerations are appropriate.
(b) In management and operating contracts, the basic fee portion of
the fee negotiation objective shall be established equal to what would
otherwise have been the applicable fixed fee established in accordance
with 970.1509-4. This basic fee includes a 50% base fee and a 50% ''at
risk fee.'' No variations from this objective are authorized without the
prior approval of the Procurement Executive. The basic fee shall be
paid in equal monthly installments, in accordance with the clause at
970.5204-16, Payments and Advances. However, in the event the
contractor's performance is judged by the Fee Determination Official to
fall into the performance categories of Marginal or Unsatisfactory, as
those terms are defined in subparagraph (d) of this section, the
contractor shall be required to refund to the Government up to 50% of
the basic fee paid for that evaluation period at a rate of 5% for each
performance point below 76, as shown in the table in subparagraph (d) of
this section.
(c) The award fee portion of the fee objective for a management and
operating contract shall be established for each contract using the
following formula:
Basic Fee Amount X (multiplied by the) Applicable Award Fee Factor.
The applicable award fee factor shall be established according to the
following category placements as set forth below:
Defense Facility -- A
Defense Facility -- B
Enrichment Plant
Miscellaneous
Individual DOE facilities which are operated under award fee
arrangements will be assigned to each category by the Procurement
Executive, whose designee shall distribute a list of such assignments to
all Heads of Contracting Activities (HCAs). In assigning facilities to
categories, the Procurement Executive will consider the factors listed
below, to determine the risks -- technical, management, and financial --
which the contractor will assume in fulfilling the contract
requirements. Contracts which involve higher levels of risks shall be
placed in higher categories and be eligible for higher award fees. The
Procurement Executive, or designee, shall review the category
assignments on a regular basis or upon request by the HCA for a
particular contract. Reassignments may be made based upon a change in
contract requirements or changes in any of the following factors:
(1) Placement of the facility on the EPA's National Priority List
(NPL). Facilities which are listed on the NPL shall be considered to
involve higher risks.
(2) Nature of the contractor's work at the facility. Contracts
involving the management of facilities listed on the NPL or requiring
the environmental restoration of NPL sites, shall be considered to
involve higher risks, whereas contracts involving unrelated work may be
considered of lesser risk, regardless of NPL designations.
(3) Size of the facility in relationship to the areas of risk.
Management of a large facility with a minor site designated on the NPL
would be considered a lesser risk than management of a small facility
which includes several major sites listed on the NPL.
(4) Quantity, complexity and type of Government property for which
the contractor is responsible. Contracts requiring control over large
quantities of sensitive Government property shall be considered of
higher risk than those involving relatively small quantities.
(5) Exposure to Third-Party Liability. Contract activities which
expose the contractor to the risk of third-party liability will be
considered, and such risk assessed accordingly.
(6) The extent to which the work at the facility presents health and
safety risks to the workers at the facility and the public.
In considering the above factors, any risks which are indemnified by
the Government (for example, by the Price-Anderson Act) will not be
considered as risk to the contractor. Where a single contract involves
multiple facilities falling into different categories, the basic fee
amount shall be divided into amounts applicable to the operation of each
facility before applying the award fee pool factor. The following
potential award fees shall apply in each category (percent is stated as
a percentage of the otherwise applicable maximum fixed fee amount) which
is now the basic fee:
(d) All management and operating contracts awarded on an award fee
basis shall incorporate the following performance grading and fee
conversion system into the contract, by including the system in the
Performance Evaluation Plan required by the contract clause at
970.5204-54. The performance grading and fee conversion system consists
of a set of adjectival grades defined in a narrative form, in terms of
performance points, and the percentage of available award fee earned as
follows:
Performance scores should be rounded to the nearest tenth of a point
and the percent of award fee determined accordingly (e.g., a score of
88.4 equals 46.2% of award fee earned).
48 CFR 970.1509-8 Narrative Description of Performance Adjectives
48 CFR 970.1509-8 Definitions
Significant: This term indicates a major event or sustained level of
performance which, due to its importance, has a substantial positive or
negative impact on the contractor's ability to carry out its mission.
Notable: This term indicates an event or sustained level of
performance which is of lesser importance than a ''significant'' event,
but nonetheless deserves positive or negative recognition.
(e) Prior approval of the Procurement Executive, is required for
total fee (basic plus award fee pool) exceeding the guidelines in
paragraph (d), of this section. Additionally, in the event use of the
award fee guidelines in paragraph (d), of this section, result in total
fees which exceed or are expected to exceed the statutory limitations
imposed by 10 U.S.C. 2306(d) and 41 U.S.C. 254(b), prior approval of the
Procurement Executive shall be obtained.
(f) When a management and operating contract is to be awarded on an
award-fee basis, the contract shall include the clause at 970.5204-54.
(g) Fee Determination Officials must be careful to ensure that all
important areas of contract peformance are mentioned in the Performance
Evaluation Plan, even if such areas are not assigned specific weights or
percentages of award fee.
(49 FR 12063, Mar. 28, 1984, as amended at 54 FR 48614, Nov. 24,
1989; 56 FR 28102, June 19, 1991; 56 FR 38174, Aug. 12, 1991)
48 CFR 970.1509-8 Subpart 970.19 -- Small Business and Small Disadvantaged Business Concerns
48 CFR 970.1901 General.
(a) The clause at FAR 52.219-9 as modified by 952.219-9 shall be
included in management and operating contracts.
(b) Management and operating contracts shall include a subcontracting
plan which is effective for the term of the contract. Goals for the
contract shall be negotiated annually when revised funding levels are
determined. The plan should include provisions for revising the goals
or any other sections of the plan. Such revisions shall be in writing,
approved by the contracting officer, and shall be specifically made a
material part of the contract.
(49 FR 12063, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984, as amended
at 52 FR 38426, Oct. 16, 1987; 53 FR 24231, June 27, 1988)
48 CFR 970.1901 Subpart 970.20 -- (Reserved)
48 CFR 970.1901 Subpart 970.22 -- Application of Labor Policies
48 CFR 970.2201 Basic labor policies.
(a) Contracting officers shall in appropriate circumstances, follow
the guidance in FAR Subpart 22.1 except as provided below in award and
management of management and operating contracts.
(b) The extent of Government ownership of the nation's energy plant
and materials, and the overriding concerns of national defense and
security, impose special conditions on personnel and labor relations in
the energy program, namely, continuity of vital operations at DOE
installations must be assured; DOE must retain absolute authority on
all questions of security; DOE reviews labor expenses under management
and operating contracts as a part of its responsibility for assuring
judicious expenditure of public funds. It is the intent of DOE, that
personnel and labor policies throughout the energy program should
reflect the best experience of American industry in aiming to achieve
the type of stable labor-management relations essential to the proper
development of the energy program. The following enunciates the
principles upon which the DOE policy is based:
(1) Employment standards. (i) Management and operating contractors
are expected to bring experienced, proven personnel from their private
operations to staff key positions on the contract work and to recruit
other well-qualified personnel as needed. Such personnel should be
employed and treated during employment without discrimination by reason
of race, color, religion, sex, or national origin. Contractors shall be
required to take affirmative action to achieve these objectives.
(ii) The job qualifications and suitability of prospective employees
should be established by the contractor prior to employment by careful
personnel investigations. Such personnel investigations should include,
as appropriate: A credit check; verification of high school
degree/diploma or degree/diploma granted by an institution of higher
learning within the last 5 years; contacts with listed personal
references; contacts with listed employers for the past 3 years
(excluding employment of less than 60 days duration, part-time
employments, and craft/union employments); and local law enforcement
checks when such checks are not prohibited by state or local law,
statute, or regulation, and when the individual had resided in the
jurisdiction where the contractor is located. Where a security
clearance will be required, the applicant's job qualifications and
suitability must be established before a request is made to DOE for a
security clearance. When an applicant is being hired specifically for a
position which shall require a DOE security clearance, the applicant
shall not be placed in that position prior to the security clearance
being granted by the DOE unless an exception has been obtained from the
Head of the Contracting Activity or designee.
(iii) The contractor is responsible for maintaining satisfactory
standards for employee qualifications, performance, conduct, and
business ethics under its own personnel policies.
(2) Security. On all matters of security at its installations, DOE
retains absolute authority and neither the security rules nor their
administration are matters for collective bargaining between management
and labor. Insofar as DOE security regulations affect the collective
bargaining process, the security policies and regulations will be made
known to both parties. To the fullest extent feasible, DOE will consult
with representatives of management and labor in formulating security
rules and regulations that affect the collective bargaining process.
(3) Wages, salaries, and employee benefits. (i) Wages, salaries, and
employee benefits shall be administered in a manner designated to adapt
normal industry or university practices and conditions to the contract
work and to provide for appropriate review by DOE. Area practices,
valid patterns, and well-established commerical or academic practices of
the contractors, as appropriate, form the criteria for the establishment
and adjustment of compensation schedules.
(ii) The aspects of wages, hours, and working conditions which are
the substance of collective bargaining in normal organized industries
will be left to the orderly processes of negotiation and agreement
between DOE contractor managements and employee representatives with
maximum possible freedom from Government interference.
(4) Employee relations. The handling of employee relations on
contract work, including such matters as the conduct and discipline of
the work force and the handling of employee grievances, is part of the
normal management responsibility of the contractor.
(5) Collective bargaining. (i) DOE review of collective bargaining
practices will be premised on the view that management's trusteeship for
the operation of the Government facilities includes the duty to adopt
practices which are fundamental to the friendly adjustment of disputes,
and which experience has shown promote orderly collective bargaining
relationships. Practices inconsistent with this view may be objected
to, if not found to be otherwise clearly warranted.
(ii) In line with the policy of assuring continuity of operation of
vital facilities, all collective bargaining agreements at
Government-owned energy installations should provide that grievances and
disputes involving the interpretation or application of the agreement
will be settled without resorting to strike, lockout, or other
interruption to normal operations. For this purpose, each collective
bargaining agreement should provide an effective grievance procedure
with arbitration as its final step, unless the parties mutually agree
upon some other method of assuring continuity of operations for the term
of the agreement.
(iii) DOE expects its management and operating contractors and the
unions representing contractor employees to cooperate fully with the
Federal Mediation and Conciliation Service.
(6) Personnel training. DOE encourages and supports personnel
training programs aimed at improving work efficiency or developing
needed skills which are not otherwise obtainable.
(7) Working conditions. Accident, fire, health, and occupational
hazards associated with DOE activities will be held to a practical
minimum level and controlled in the interest of maintenance of health
and prevention of accidents. To this end, contractors shall be required
to maintain comprehensive continuous preventive and protective programs
appropriate to the particular activities throughout all operations
subject to DOE control. Appropriate financial protection in case of
occupational disability must be provided employees on DOE projects.
(c) Title to payroll and associated records under certain contracts
for the management and operation of DOE facilities, and for necessary
miscellaneous construction incidental to the function of these
facilities, shall vest in the Government. Such records are to be
disposed of in accordance with DOE directions. For such contracts, the
Solicitor of Labor has granted a tolerance from the Department of Labor
Regulations to omit from the prescribed labor clauses the requirement
for the retention of payrolls and associated records for a period of
three years after completion of the contract. Under this tolerance, the
records retention requirements for all labor clauses in the contract and
the Fair Labor Standards Act is satisfied by disposal of such records in
accordance with DOE directives.
48 CFR 970.2206 Walsh-Healey Public Contracts Act.
Because DOE has safety and health standards compatible with those of
41 CFR Part 50-204, the Department of Labor has agreed to accept DOE's
program for inspection and evaluation of compliance, in lieu of
establishing its own program of inspection and evaluation to the extent
the Walsh-Healey safety and health standards are applicable to
operations conducted for DOE at Government-owned and/or controlled sites
and facilities.
(49 FR 12063, Mar. 28, 1984, as amended at 53 FR 24231, June 27,
1988)
48 CFR 970.2208 Equal employment opportunity.
The equal employment opportunity provisions of FAR Subpart 22.8 and
Subpart 922.8 of this chapter, including E.O. 11246 and 41 CFR Part 60,
are applicable to DOE management and operating contracts.
(49 FR 12063, Mar. 28, 1984, as amended at 53 FR 24231, June 27,
1988)
48 CFR 970.2210 Service Contract Act.
The Service Contract Act of 1965 is not applicable to contracts for
the management and operation of DOE facilities.
(49 FR 12063, Mar. 28, 1984, as amended at 53 FR 24231, June 27,
1988)
48 CFR 970.2270 Unemployment compensation.
(a) Each state has its own unemployment compensation system to
provide payments to workers who become unemployed involuntarily and
through no fault of their own. Funds are provided for unemployment
compensation benefits through a payroll tax on employers. Most DOE
contractors are subject to the unemployment compensation tax laws of the
states in which they are located. It is the policy to assure, both in
the negotiation and administration of cost-reimbursement type contracts,
that economical and practical arrangements are made and practiced with
respect to unemployment compensation.
(b) Contract exempt from state laws. (1) Some contractors are exempt
from state unemployment compensation laws, usually on grounds that they
are nonprofit organizations or subdivisions of State governments. Most
states, however, permit such employers to elect unemployment
compensation coverage on a voluntary basis. Under such circumstances,
all existing or prospective cost-reimbursement contractors shall be
encouraged to provide unemployment compensation coverage or equivalent
substitutes.
(2) It is also DOE policy that, prior to the award or extension of a
management and operating contract, exempt contractors or prospective
contractors shall be required to submit to the contracting officer a
statement that they will either elect coverage or provide equivalent
substitutes for unemployment compensation, or in the alternative, submit
evidence that it is impractical to do so. If any exempt contractor or
prospective contractor submits that it is impractical to elect coverage
or to provide an equivalent substitute, appropriate Headquarters Labor
Relations staff shall review that position prior to recommending an
award or extension of the contract. If there are substantial reasons
for not electing coverage or for not providing equivalent substitutes, a
contract may be awarded or extended. Headquarters' staff review and
recommendation shall be based on such factors as:
(i) The specific provisions of the unemployment compensation law of
the State;
(ii) The extent to which the establishment of special conditions on
DOE work may have an adverse effect on the contractor's general policies
and operating costs in its private operations;
(iii) The numerical relationship between the contractor's private
work force and its employees performing only work for DOE;
(iv) The contractor's record with respect to work force stability and
the general outlook with respect to future work force stability;
(v) In a replacement contractor situation, whether or not the prior
contractor had coverage or suitable substitutes; and
(vi) The particular labor relations implications involved.
48 CFR 970.2271 Workers' compensation insurance.
(a) Policies and requirements -- (1) Workers' compensation insurance
protects employers against liability imposed by workers' compensation
laws for injury or death to employees arising out of, or in the course
of, their employment. This type of insurance is required by state laws
unless employers have acceptable programs of self-insurance.
(2) Special requirements. Certain workers' compensation laws contain
provisions which result in limiting the protection afforded persons
subject to such laws. The policy with respect to these limitations as
they affect persons employed by, management and operating contractors is
set forth below:
(i) Elective provisions. Some worker's compensation laws permit an
employer to elect not to be subject to its provisions. It is DOE policy
to require these contractors to be subject to workers' compensation laws
in jurisdictions permitting election.
(ii) Statutory immunity. Under the provisions of some workers'
compensation laws, certain types of employers; e.g., nonprofit
educational institutions, are relieved from liability. If a contractor
has a statutory option to accept liability, it is DOE policy to require
the contractor to do so.
(iii) Limited medical benefits. Some workers' compensation laws
limit the liability of the employer for medical care to a maximum dollar
amount or to a specified period of time. In such cases, a contractor's
workers' compensation insurance policy should contain a standard
extrastatutory medical coverage endorsement.
(iv) Limits on occupational disease coverage; and employers'
liability. Some workers' compensation laws do not provide coverage for
all occupational diseases. In such situations, a contractor's workers'
compensation insurance policy should contain voluntary coverage for all
occupational diseases.
(3) Contractor ''employees' benefit plan'' -- self-insurers. The
policies and requirements set forth in paragraph (2) apply where
management and operating contractors purchase workers' compensation
insurance. With respect to self-insured contractors, the objectives
specified in paragraph (a)(2) also shall be met through primary or
excess workers' compensation and employers' liability insurance
policy(ies) or an approved combination thereof. ''Employees' benefit
plans'' which were established in prior years may be continued to
contrast termination at existing benefit levels.
(b) Assignment of responsibilities. (1) Headquarters' Labor
Relations and other officials and Heads of Contracting Activities,
consistent with their delegations of responsibility, shall assure
management and operating contracts are consistent with the policies and
requirements of paragraph (a), above.
(2) In discharging assigned responsibility, Heads of Contracting
Activities shall:
(i) Periodically review workers' compensation insurance programs of
management and operating contractors in the light of applicable workers'
compensation statutes to assure conformance with the requirements of
paragraph (a), above;
(ii) Evaluate the adequacy of coverage of ''self-insured'' workers'
compensation programs;
(iii) Provide arrangements for the administration of any existing
''employees' benefit plans until such plans'' are terminated; and
(iv) Submit to the Office of Industrial Relations, Headquarters, all
proposals for the modification of existing ''employees' benefit plans.''
(3) The Office of Industrial Relations, Headquarters, is responsible
for approving management and operating contractor ''employees' benefit
plans.''
48 CFR 970.2272 Conduct of employees and consultants of DOE management
and operating contractors.
(a) Scope of subsection. This subsection establishes the policies
for maintaining satisfactory standards of conduct on the part of
employees and consultants employed on DOE contract work by its
management and operating contractors. Contracts with colleges and
universities, which have adopted conflict-of-interest policies
consistent with ACE-AAUP standards and do not involve the operation of
Government-owned facilities on Government-owned or Government-leased
land, are governed by the ''Policy of the Federal Council for Science
and Technology Relating to Conflicts of Interest by Staff Members of
Colleges and Universities'' (adopted March 29, 1966), and are not
subject to this subsection.
(b) Applicability. (1) These policies are applicable to DOE
management and operating contractors to the extent that their contracts
with DOE contain provisions making this subsection applicable; or
instructions have been issued under appropriate provisions of their
contracts with DOE directing compliance with this subpart.
(2) The contract clause contained in 970.5204-12 requiring the
contractor to establish such procedures as are necessary to effectively
implement the provisions of this subsection, subject to the approval of
the Contracting Officer, shall be included in all new DOE management and
operating contracts.
(3) The contract clause contained in 970.5204-27(a) concerning
necessary approvals to be obtained by contractor employees before
performing consultant or similar services for another DOE contractor
shall be included in:
(i) All new DOE management and operating contracts except those
identified in paragraph (b)(4) of this section; and
(ii) Major modifications (involving change in scope or other
significant substantive changes) or extensions of existing contracts
within the foregoing category.
(4) The contract clause contained in 970.5204-27(b) concerning
necessary approvals to be obtained by contractor employees before
performing consultant or similar services for another DOE contractor, or
in the energy field for another organization, shall be included in:
(i) All new DOE management and operating contracts for research or
operations of DOE program work where a substantial portion of the land
or buildings used for such research or in such operations is owned or
controlled by the Government; and
(ii) Major modifications (involving change in scope or other
significant substantive changes) or extensions of existing contracts
within the foregoing category.
(5) Exceptions to the requirements of paragraphs (b)(2), (3), and (4)
will be permitted only with the approval of the Procurement Executive.
(c) Gratuities. A management and operating contractor or its
employees or consultants shall not, under circumstances which might
reasonably be interpreted as an attempt to influence the recipients in
the conduct of their duties, accept any gratuity or special favor from
individuals or organizations with whom the contractor is doing business,
or proposing to do business, in accomplishing the work under the
contract. Reference should be made to the provisions of 41 U.S.C.
51-54.
(d) Use of privileged information. Employees and consultants of a
management and operating contractor shall not use for personal gain or
make other improper use of privileged information which is acquired in
connection with their employment on contract work. In this connection,
the term ''Privileged information'' includes but is not limited to,
unpublished information relating to technological and scientific
developments; medical, personnel, or security records of individuals;
anticipated materials' requirements or pricing action; possible new
sites for DOE program operations; and knowledge of selections of
contractors or subcontractors in advance of official announcement.
(e) Outside employment of contractor employees. Employees of a
management and operating contractor are entitled to the same rights and
privileges with respect to outside employment as other citizens.
Therefore, there is no general prohibition against employees having
outside employment. However, no employee of a contractor performing
work on a full-time basis under a DOE management and operating contract
may engage in employment outside official hours of duty or while on
leave if such employment will:
(1) In any manner interfere with the proper and effective performance
of the duties of the position;
(2) Appear to create a conflict-of-interest situation, or
(3) Appear to subject DOE or the contractor to public criticism or
embarrassment.
(f) Information statement concerning consultant or other employment
service. If a consultant or other outside employment service of the
employee involves the use of information in the area of the employee's
contract employment, the contractor will be responsible for requiring
that the employee file with the contractor, an information statement
containing such information concerning the outside employment as the
contractor may prescribe. As a minimum, the information statement shall
include a description of any patent agreements that may be involved and
the following acknowledgement:
I acknowledge that I have read and am familiar with the published
policy of the DOE contained in:
(a) Subpart 970.2272 ''Conduct of employees and consultants of DOE
management and operating contractors;'' and
(b) DOE publication entitled, ''Reporting Results of Scientific and
Technical Work Funded by DOE,'' which states in part that significant
new results produced in DOE-funded scientific and technical work agree
not to withhold or delay reporting information acquired through my
employment with ------ in favor of ------ with whom I have made or am
contemplating making a consulting agreement. I have also read and am
familiar with the requirements of my employer's contract with DOE
relating to patents. To the best of my knowledge or belief, the
activities to be performed under this consulting agreement will not
conflict with the policy set forth in 970.5204-27, the patent provisions
of my employer's contract with DOE, or with the responsibility of my
employer to report fully and promptly to DOE all significant research
and development information. If in the course of my activities under
this consulting agreement, it appears that such a conflict may arise, I
will promptly notify and consult with my primary employer ------
concerning such possible conflict.
(g) Incompatibility between regular duties and private interests.
Employees and consultants of a management and operating contractor shall
not be permitted to make or influence any decisions on behalf of the
contractor which directly or indirectly affect the interest of the
Government, if the employee's or consultant's personal concern in the
matter may be incompatible with the interest of the Government. For
example: (1) An employee or consultant of a contractor will not
negotiate, or influence the award of, a subcontract with a company in
which the individual has an employment relationship or significant
financial interest; and (2) an employee or consultant of a contractor
will not be assigned the preparation of an evaluation for DOE or for any
DOE contractor of some technical aspect of the work of another
organization with which the individual has an employment relationship,
or significant financial interest, or which is a competitor of an
organization (other than the contractor who is the individual's regular
employer) in which the individual has an employment relationship or
significant financial interest. The contractor shall be responsible for
informing employees and consultants that they are expected to disclose
any incompatibilities between duties performed for the contractor and
their private interests and to refer undecided questions to the
contractor.
(49 FR 12063, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984)
48 CFR 970.2273 Administrative controls and criteria for application of
the Davis-Bacon Act in operational or maintenance activities.
(a) Particular work items falling within one or more of the following
criteria normally will be classified as noncovered by the Davis-Bacon
Act.
(1) Individual work items estimated to cost $2,000 or less. The
total dollar amount of the operating contract is not a factor to be
considered and bears no relation to individual work items classified as
construction, alteration and/or repair, including painting and
decorating. However, no item of work, the cost of which is estimated to
be in excess of $2,000, shall be artificially divided into portions less
than $2,000 for the purpose of avoiding the application of the Act.
(2) Work and services that are a part of operational and maintenance
activities or which, being very closely and directly involved therewith,
are more in the nature of operational activities than construction,
alteration, and/or repair work. This includes work and services which
would involve a material risk to continuity of operations, to life or
property, or to DOE operating requirements, if performed by persons
other than the operating contractor's regular production and maintenance
forces. However, any decision that contracts or work items are
noncovered for these reasons must be made by the Head of the Contracting
Activity and the authority to make such a decision cannot be
redelegated.
(3) Assembly, modification, setup, installation, replacement,
removal, rearrangement, connection, testing, adjustment, and calibration
of machinery and equipment. It should be noted, however, that these
activities are covered if they are part of or would be a logical part of
the construction of a facility, or if construction type work, other than
defined as ''incidental'' in 922.470(e) is involved.
(4) Experimental development of equipment, processes, or devices
including assembly, fitting, installation, testing, reworking, and
disassembly. This refers to equipment, processes and devices which are
assembled for the purpose of conducting a test or experiment. The
design may be only conceptual in character, and professional personnel
responsible for the experiment participate in the assembly.
Specifically excluded from the category of experimental development are
buildings and building utility services -- as distinguished from
temporary connections thereto. Also specifically excluded from this
category is equipment to be used for continuous testing, e.g., a machine
to be continuously used for testing the tensile strength of structural
members. (See 922.403-7302(g) and 920.2273(c)).
(5) Experimental work in connection with peaceful uses of nuclear
energy. This refers to equipment, processes and devices which are
assembled and/or set in place and interconnected for the purpose of
conducting a test or experiment. The nature of the test or experiment
is such that professional personnel responsible for the test or
experiment and/or data to be derived therefrom necessarily must
participate in the assembly and interconnections. Specifically excluded
from experimental work are buildings, building utility services,
structural changes, drilling, tunneling, excavation, and back-filling
work which can be performed according to customary drawings and
specifications, and utility services of modifications to utility
services -- as distinguished from temporary connections thereto. Work
in this category may be performed in mines or in other locations
specifically constructed for tests or experiments. (See 922.403-7302(g)
and 920.2273(c).)
(6) Emergency work to combat the effects of fire, flood, earthquake,
equipment failure, accident or other casualties, and to restart the
operational activity following the casualty. Work which is not directly
related to restarting the activity or which involves rebuilding or
replacement of structure or structural components or equipment is
excluded from this category. (See 922.403-7302(g) and 920.2273(c).)
(7) Decontamination. including washing, scrubbing, and scraping to
remove contamination; removal of contaminated soil or other material;
and painting or other resurfacing, provided that such painting or
resurfacing is an intergral part of the decontamination activity and
performed by the employees of the contractors performing the
decontamination.
(8) Burial of contaminated soil waste or contained liquid; however,
initial preparatory work readying the burial ground for use (for exmple,
any grading or excavating that is a part of initial site preparation,
fencing, drilling wells for continued monitoring of contamination,
construction of guard or other office space) is covered. Likewise, work
subsequent to burial which involves the placement of concrete or other
like activity is covered.
(b) The classification of a contract as a contract for operational or
maintenance activities does not necessarily mean that all work and
activities at the contract location are classifiable as outside
Davis-Bacon Act coverage, since it may be necessary to separate out work
which should be classified as covered. Therefore, Heads of Contracting
Activities shall establish and maintain controls for the careful
scrutiny of proposed work assignments under such a contract to assure
that:
(1) Contractors whose contracts do not contemplate the performance of
covered work with the contractor's own forces are neither asked nor
authorized to perform work within the scope of the Davis-Bacon Act. If
the actual work assignments do involve covered work, the contract should
be modified to include applicable provisions of the Davis-Bacon Act.
(2) Where covered work is performed by a contractor whose contract
contains provisions required by the Davis-Bacon Act, such work is
performed as required by law and the contract. After such contractor
has been informed, as provided in paragraph (b)(3) of this section, that
certain work is covered work, the Head of the Contracting Activity's
responsibility to assure compliance is the same as it would be if the
work were being performed under a separate construction contract.
(3) Controls provided for above include consideration by the Head of
the Contracting Activity and the contractor, before work is begun or
contracted out, of the relation of the Davis-Bacon Act to (i) the annual
programming of work, (ii) the contractor's work orders, and (iii) work
contracted out in excess of $2,000. The Head of the Contracting
Activity may, if he concludes that it is consistent with DOE's
responsibilities as described in this section, prescribe from time to
time classes of work as to which applicability or nonapplicability of
the Davis-Bacon Act is clear, for which he will require no further DOE
determination on coverage in advance of the work. For all work,
controls to be established by the Head of the Contractng Activity should
provide for notification to the contractor before work is begun as to
whether such work is covered.
The Head of the Contracting Activity is responsible for submitting to
the Wage and Hours Division, Employment Standards Administration,
Department of Labor, Washington, D.C. 20210, all DOE requests for
project area or installation wage determinations, or individual
determinations, or extensions or modification thereto. Requests for
such determinations shall be made on Standard Form 308, at least 30
calendar days before they are required for use in advertising for bids
or requests for proposals.
(c) Experimental installations. Within DOE programs, a variety of
experiments are conducted involving materials, fuels, coolants,
processes equipment. Certain types of situations where tests and
experiments have sometimes presented coverage questions are described
below.
(1) Set-ups of device and/or processes. The proving out of
investigative findings and theories of a scientific and technical nature
may require the set-up of various devices and/or processes at an early,
pre-prototype stage of development. These may range from laboratory
bench size to much larger set-ups. As a rule, these set-ups are made
within established facilities (normally laboratories); required utility
connections are made to services provided as a part of the basic
facilities; and the activity as a whole falls within the functional
purpose of the facility. Such set-ups are generally not covered.
However, the erection of structures which are public works is covered if
construction type work, other than an ''incidental amount'' as defined
in 922.470(e) is involved. Preparatory work for the set-up requiring
structural changes or modifications of basic utility services -- as
distinguished from connections thereto -- is covered. Following are
illustrations of noncovered set-ups of devices and/or processes:
(i) Assembly of piping and equipment within existing ''hot cell''
facilities for proving out a conceptual design of a chemical processing
unit;
(ii) Assembly of equipment, including adaptation and modification
thereof, in existing ''hot cell'' facilities to prove out a conceptual
design for remotely controlled machining equipment;
(iii) Assembly of the first graphite pile in a stadium at Stagg Field
in Chicago;
(iv) Assemby of materials and equipment for particular aspects of the
direct current thermonuclear experiments to explore feasibility and to
study other ramifications of the concept of high energy injection and to
collect data thereon.
(2) Loops. Many experiments are carried on in equipment assemblies
called loops in which liquids or gases are circulated under monitored
and controlled conditions. For purposes of determining Davis-Bacon
coverage, loops may be classed as loop facilities or as loop set-ups.
Both of these classes of loops can include in-reactor loops and
out-of-reactor loops. In differentiating between clearly indentified
loop set-ups and loop facilities, an area exists in which there have
been some questions of coverage, such as certain loops at the Material
Test Reactor and at Engineering Test Reactor and the Idaho National
Engineering Laboratory site. Upon clarification of this area, further
illustrations will be added. In the meantime, the differentiation
between loop set-ups and loop facilities must be made on a case-by-case
basis, taking into account the total criteria set forth in this subpart.
(i) Loop set-ups. The assembly, erection, modification, and
disassembly of a loop set-up is noncovered. A noncontroversial example
of a loop set-up is one which is assembled in a laboratory, e.g., Oak
Ridge National Laboratory, Argonne National Laboratory, or Lawrence
Livermore National Laboratory, for a particular test and thereafter
disassembled. However, preparatory work for a loop set-up requiring
structural changes or modifications of basic utility services -- as
distinguished from connections thereto -- is covered, as are material
and equipment that are installed for a loop set-up which is a permanent
part of the facility or which is use for a succession of experimental
programs.
(ii) Loop facilities. A loop facility differs from a loop set-up in
that it is of a more permanent character. It is usually, but not
always, of greater size. It normally involves the building or
modification of a structure. Sometimes it is installed as a part of
construction of the facility. It may be designed for use in a
succession of experimental programs over a longer period of time.
Examples of loop facilities are the in-reactor ''K'' loops at Hanford
and the large Aircraft Nuclear Propulsion loop at the Idaho National
Engineering Laboratory site. The on-site assembly and erection of such
loop facilities are covered. However, once a loop facility is completed
and becomes operational, the criteria set forth above for operational
and maintenance activities apply.
(3) Reactor component experiments. Other experiments are carried on
by insertion of experimental components within reactor systems without
the use of a loop assembly. An example of reactor facilities erected
for such experimental purposes are the special power excursion test
reactors (SPETRs) at the National Reactor Test Site which are designed
for studying reactor behavior and performance characteristics of certain
reactor components. Such a facility may consist of a reactor vessel,
pressurizing tank, coolant loops, pumps, heat exchangers, and other
auxiliary equipment as needed. The facility also may include sufficient
shielding to permit work on the reactor to proceed following a short
period of power interruption, and buildings as needed to house the
reactor and its auxiliary equipment. The erection and on-site assembly
of such a reactor facility is covered, but the components whose
characteristics are under study are excluded from coverage. To
illustrate, one of the SPETRs planned for studies of nuclear reactor
safety is designed to accommodate various internal fuel and control
assemblies. The internal structure of the pressure vessel is designed
so that cores of different shapes and sizes may be placed in the vessel
for investigation, or the entire internal structure may be easily
removed and replaced by a structure which will accept a different core
design. Similarly, the control rod assembly is arranged to provide for
flexibility in the removal of instrument leads and experimental
assemblies from within the core.
(4) Tests or experiments in peaceful uses of nuclear energy. These
tests or experiments are varied in nature and some are only in a
planning stage. They consist of one or more nuclear or nonnuclear
detonations for the purposes of acquiring data. The data can include
seismic effects, radiation effects, amount of heat generated, amount of
material moved and so forth. Some of these tests are conducted in
existing mines, while others are conducted in facilities specifically
constructed for the tests or experiments. In general, all work which
can be performed in accordance with customary drawings and
specifications, as well as other work in connection with preparation of
facilities is treated as covered work. Such work includes tunneling,
drilling, excavation and back-filling, erection of buildings or other
structures, and installation of utilities. The installation of the
nonnuclear material or nuclear device to be detonated, and the
instrumentation and connection between such material or device and the
instrumentation are treated as noncovered work.
(5) Tests or experiments in military uses of nuclear energy. As in
970.2273(c)(4), these tests or experiments can be varied in nature.
However, under this category it is intended to include only detonation
of nonnuclear material or nuclear devices. The material or devices can
be detonated either underground, at ground level, or above the ground.
These tests or experiments have been conducted in, on, or in connection
with facilities specifically constructed for such tests or experiments.
As in tests or experiments in peaceful uses of nuclear energy, all work
which can be performed in accord with customary drawings and
specifications, as well as other work in connection with preparation of
facilities are treated as covered work. Such work includes building
towers or similar structures, tunneling, drilling, excavation and
backfilling, erection of buildings or other structures, and installation
of utilities. The installation of the nonnuclear material or nuclear
devices and instrumentation are treated as noncovered work.
(d) Construction site contiguous to an established manufacturing
facility. As DOE-owned property sometimes enbraces several thousand
acres of real estate, a number of separate facilities may be located in
areas contiguous to each other on the same property. These facilities
may be built over a period of years, and established manufacturing
activities may be regularly carried on at one site at the same time that
construction of another facility is underway at another site. On
occasion, the regular manufacturing activities of the operating
contractor at the first site may include the manufacture, assembly, and
reconditioning of components and equipment which in other industries
would normally be done in established conmmercial plants. While the
manufacture of components and equipment in the manufacturing plant is
noncovered, the installation of any such manufactured items on a
construction job is covered.
(49 FR 12063, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984)
48 CFR 970.2273 Subpart 970.23 -- Environmental, Conservation, and
Occupational Safety Programs
970.2303 Hazardous materials identification and material safety.
48 CFR 970.2303-1 General.
(a) The Department of Energy regulates the nuclear safety of its
major facilities under its own statutory authority derived from the
Atomic Energy Act and other legislation. The Department also regulates,
under certain specific conditions, the use by its contractors of
radioactive materials and ionizing radiation producing machines.
(b) The inclusion of environmental, safety and health clauses in DOE
contracts shall be made by the contracting officer in consultation with
appropriate environmental, safety and health program management
personnel.
48 CFR 970.2303-2 Clauses.
(a) When work under management and operating contracts and
subcontracts thereunder is to be performed at a facility where DOE will
exercise its statutory authority to enforce occupational safety and
health standards applicable to the working conditions of the contractor
and subcontractor employees at such facility, the clause at 970.5204-2
shall be used in such contract or subcontract and made applicable to the
work if conditions (a)(1) through (3), are satisfied:
(1) DOE work is segregated from the contractor's or subcontractor's
other work;
(2) The operation is of sufficient size to support its own safety and
health services; and
(3) The facility is government-owned, or leased by or for the account
of the government.
(b) The clause set forth in 952.223-72 shall be included in those
contracts or subcontracts for, and be made applicable to, work to be
performed at a facility where DOE does not elect to assert its statutory
authority to enforce occupational safety and health standards applicable
to the working conditions of contractor and subcontractor employees, but
does need to enforce radiological safety and health standards pursuant
to provisions of the contract or subcontract rather than by reliance
upon Nuclear Regulatory Commission licensing requirements (including
agreements with states under section 274 of the Atomic Energy Act).
(c) The clause set forth at 970.5204-26 shall be included in all
contracts and subcontracts for, and be made applicable to, work to be
performed at or involving the construction, startup, operation, and
decommissioning of DOE-owned nuclear facilities deemed to be exempt from
Nuclear Regulatory Commission licensing requirements. Any deviation in
substance affecting the meaning, intent, or basic principles of this
clause must be referred to the Procurement Executive, for approval.
(d) The clause at 970.5204-41 shall be included in all contracts
containing the DOE standard clause entitled ''Safety and Health'' at
970.5204-2 or ''Radiation Protection and Nuclear Criticality'' at
952.223-72 or Nuclear Facility Safety Applicability at 970.5204-26.
(49 FR 12063, Mar. 28, 1984; 49 FR 38952, Oct. 2, 1984)
48 CFR 970.2303-2 Subpart 970.25 -- (Reserved)
48 CFR 970.2303-2 Subpart 970.27 -- Patents, Data, and Copyrights
48 CFR 970.2701 General.
(a) The provisions of 41 CFR 9-9.1 remain in effect for the
management and operation of Government-owned research or production
facilities.
(b) A management and operating contractor's obligations for
protection of information and data received from DOE and other
contractors or subcontractors, and for the contractor's private use of
contract data first produced in the performance of the contract, are set
forth in paragraph (b)(2) of each Rights in Technical Data clause in
952.227. This subparagraph provides that the contractor may, subject to
patent, security, or other provisions of the contract, use for its
private purposes, contract data it first produces in the performance of
the contract, provided that the contractor has met its data requirements
(e.g., delivery of data in the form of progress or status reports
specified to be delivered) as of the date of private use of such data.
It is not necessary that a ''Final Report'' be submitted in order to
privately use data if all required progress and interim reports and
other technical data than due have been delivered. Paragraph (b)(2)
further provides that technical or other data received by the contractor
in the performance of the contract must be held in confidence by the
contractor in accordance with restrictions accompanying the data.
(c) Contractors should be aware that technical information which is
reported to DOE by DOE contractors may be disseminated by DOE to others,
subject to the restrictions included in the ''Rights to Technical Data''
clause.
(d) Employees of contractors operating DOE facilities may not be used
to assist in the preparation of a proposal or bid for the performance of
private commercial services similar or related to those being performed
under the DOE contract unless such employee has been separated, with DOE
approval, from performance of work under the DOE contract for such
period as the Head of the Contracting Activity or designee shall direct
consistent with the purpose of this section.
(e) Contractors operating DOE facilities and performing services as a
part of their contract work for other Government agencies or private
organizations should not be permitted to utilize information which is
furnished by such customers for their own private activities unless it
is generally available to others, or unless the customer authorizes such
use.
48 CFR 970.2702 Procedures.
(a) General. It is essential that DOE maintain continuity in its
programs which are implemented by contracts for the operation of
Government-owned facilities. Contract data first produced or
specifically used in the performance of such contracts must be
considered as integral to and remaining with the facility or plant after
termination of such contracts and thus available to DOE and its future
contractors for the continued use of the facility or plant. However, it
is recognized that these contracts by their nature cannot always be
subject to one set of prescribed contract provisions which will always
apply. Accordingly, the Rights in Technical Data-Facility clause set
forth in 952.227-78 is to be used as a basic or minimal clause which may
be modified or expanded with the concurrence of patent counsel to meet
particular contract situations.
Whenever a contract has as a purpose the operation of a
Government-owned research or production facility, the clause set forth
at 952.227-78 shall normally be included in the contract. Inasmuch as
this clause secures to the Government ownership, access to, and, if
requested, delivery of all technical data first produced in the
performance of the contract and access to and delivery of technical data
which are specifically used in the performance of the contract, there is
no need to include the Additional Technical Data Requirements Clause of
952.227-73.
(b) Subcontracting. Unless otherwise directed by the contracting
officer, the contractor shall be required to follow the policy and
procedures of 927.402-1, 927.402-2, and 927.402-3 and shall employ the
provisions of the Additional Technical Data Requirements Clause of
952.227-73 and the Rights in Technical Data (Long Form) clause of
952.227-75, where appropriate, except in subcontracts for the design of
special production plants or facilities or specially designed equipment
for facilities or plants, in which instances contractors shall include
the provisions of the Rights in Technical Data -- Facility Clause of
952.227-78.
(c) Optional clause -- Limited rights in proprietary data. In
contracts where it is determined that delivery of proprietary data is
necessary with limited rights in the Government, the Rights in Technical
Data clause of this section shall be supplemented by the additional
paragraph (e), set forth in 952.227-79. Paragraph (e) provides that
technical data may be specified in the contract as being excluded from
the delivery requirements thereof. Alternatively, paragraph (e) may be
limited or made applicable to only those classes of proprietary data
determined as being necessary for delivery with limited rights. In
addition, when furnishing proprietary data with the limited rights
legend, paragraphs (a), (b) and (c) thereunder may be modified as
follows. When proprietary data is to be furnished only for evaluation,
paragraph (a) of the limited rights legend shall be used, and paragraphs
(b) and (c), if otherwise inapplicable, may be deleted. When there is a
programmatic requirement that proprietary data be disclosed to other DOE
contractors only for information or use in connection with work
performed under their contracts, paragraph (b) of the limited rights
legend shall be used, and paragraphs (a) and (c) may be deleted if
otherwise inapplicable. In either of the foregoing examples, the
contractor may, if it can show the possibility of a conflict of interest
because of disclosure of such data to certain contractors or evaluators,
exclude contractors or evaluators from paragraph (a) or (b). If the
data is required solely for emergency repair or overhaul, paragraph (c)
of the limited rights legend shall be retained, and paragraphs (a) and
(b) may, unless otherwise applicable, be deleted. In the event that it
is determined that all of the paragraphs (a), (b) and (c) of the limited
rights legend are to be deleted, the word ''none'' shall be inserted in
the legend after the colon (:).
(d) For contracts involving access to certain categories of DOE-owned
restricted data, as set forth in 10 CFR Part 725, see 927.402-1(h).
48 CFR 970.2702 Subpart 970.28 -- Bonds and Insurance
48 CFR 970.2870 Indemnification.
(a) DOE policies provide for indemnification of DOE management and
operating contractors against public liability for a nuclear incident
arising out of or in connection with operation of production or
utilization facilities, and work which entails the risk of public
liability for a substantial nuclear incident.
(b) Details of these policies are discussed at 950.70 Indemnification
of DOE contractors.
(c) Section 170d of the Atomic Energy Act of 1954, as amended,
authorizes DOE ''to enter into agreements of indemnification with its
management and operating contractors for the construction or operation
of production or utilization facilities or other activities under
contracts for the benefit of the United States involving activities
under the risk of public liability for a substantial nuclear incident.''
(d) Heads of Contracting Activities are authorized to negotiate
statutory indemnity agreements with management and operating contractors
following the procedures at 950.70. They may enter into a statutory
indemnity agreement whenever it has been determined that a contractor
that is engaged in activities involving the risk of public liability for
a substantial nuclear incident.
(e) The contract clause contained in 970.5204-6 shall be incorporated
in management and operating contracts in which a statutory indemnity
agreements is to be included upon a determination that the contractor is
under risk of public liability for the occurrence of a substantial
nuclear incident in the course of performance of the contract work. The
contract clause contained in 970.5204-7 shall be incorporated in
management and operating contracts in which a statutory indemnity
agreement is to be included upon a determination that the contractor is
under risk of public liability for a substantial nuclear incident caused
by a product delivered to or for DOE under the contract where such
product is expected to be used in connection with a facility or device
not covered by a statutory indemnity agreement.
(f) A DOE contractor with whom a statutory indemnity agreement has
been executed in the form contained in 970.5204-6 may include in any of
its subcontracts and purchase orders a representation that the work
under the prime contract is covered by a statutory indemnity agreement
with the DOE, and that this indemnity covers all persons who may be
liable for public liability for any nuclear incident arising out of or
in connection with the activity under the prime contract. A suggested
form of ''representation'' that may be provided to the contractor
follows:
The contractor represents that there is included in its prime
contract with DOE an indemnity agreement, entered into by DOE under the
authority of section 170 of the Atomic Energy Act of 1954, as amended by
Pub. L. 95-256 (the ''Price-Anderson Act''), a copy of which may be
obtained from the contractor (or is attached hereto); that, under said
agreement, DOE has agreed to indemnify the contractor and other persons
indemnified, including the subcontractor, against claims for public
liability (as defined in said Act) arising out of or in connection with
the contractual activity; that the indemnity applies to covered nuclear
incidents which (1) take place at a ''contract location'' (which term,
as defined in the indemnity agreement, does not include the location of
the subcontractor's plant and facilities); or (2) arise out of or in
the course of transportation of source, special nuclear or by-product
material to or from a ''contract location;'' or (3) involve items
produced or delivered under the prime contract. The obligation of DOE
to indemnify is subject to the conditions stated in the indemnity
agreement.
(g) DOE shall not approve the inclusion, in the subcontracts and
purchase orders of an indemnified management and operating contractor,
of any provision whereby the management and operating contractor
indemnifies the subcontractor or supplier against public liability for a
nuclear incident because any such liability will be covered by the
statutory indemnity agreement of the prime contractor.
(h) Management and operating contractors with whom statutory
indemnity agreements under the authority of section 170d of the Atomic
Energy Act of 1954, as amended, are executed will not normally be
required or permitted to furnish financial protection by purchase of
insurance to cover public liability for nuclear incidents, except (1)
that DOE contractors now covered by insurance against such liability,
with the approval of the DOE, may continue to carry such insurance; and
(2) with the approval of the Office of Industrial Relations, contractors
engaged in the operation of DOE facilities may be required or permitted
to furnish financial protection in an amount not to exceed $1 million.
48 CFR 970.2870 Subpart 970.29 -- Taxes
48 CFR 970.2901 Exemptions from Federal excise taxes.
(a) The exemption respecting taxes on communication services or
facilities has been held to extend to such services when furnished to
DOE management and operating contractors who pay for such services or
facilities from advances made to them by DOE under their contracts.
(b) Where it is considered that a request for an additional exemption
in the performance of a management and operating contract would be
justified, a recommendation that such a request be made should be
forwarded to the Controller.
(c) Where tax exemption certificates are required in connection with
the foregoing taxes, the Head of the Contracting Activity will supply
standard Government forms (SF 1094, U.S. Tax Exemption Certificate) on
request.
48 CFR 970.2902 State and local taxes.
It is DOE policy to secure those immunities or exemptions from state
and local taxes to which it is entitled under the Federal Constitution
or state laws. In carrying out this policy, Heads of Contracting
Activities shall:
(a) Take all necessary steps to preclude payment of any taxes for
which any of the foregoing immunities or exemptions are available.
Advice of Counsel should be sought as to the availability of such
immunities or exemptions;
(b) Acquire directly and furnish to contractors as Government
furnished property, equipment, material, or services when, in the
opinion of the Head of the Contracting Activity:
(1) Such direct acquisition will result in substantial savings to the
Government, taking into consideration any additional administrative
costs;
(2) Such direct acquisition will not have a substantial adverse
effect on the relationship between DOE and its contractor; and
(3) Such direct acquisition will not have a substantial adverse
effect on the DOE program or schedules.
48 CFR 970.2903 Contract clauses.
Contracting officers shall include an appropriate clause in
management and operating contracts.
(49 FR 12063, Mar. 28, 1984, as amended at 53 FR 24231, June 27,
1988)
48 CFR 970.2903 Subpart 970.30 -- Cost Accounting Standards
48 CFR 970.3001 General.
48 CFR 970.3001-1 Applicability.
The provisions of FAR Part 30 shall be followed for management and
operating contracts.
48 CFR 970.3001-2 Limitations.
Cost of money as an element of the cost of facilities capital (CAS
414) and as an element of the cost of capital assets under construction
(CAS 417) is not recognized as an allowable cost under contracts subject
to 970 (See 970.3102-10).
48 CFR 970.3001-2 Subpart 970.31 -- Contract Costs Principles and Procedures
48 CFR 970.3100 Scope and applicability of subpart.
The cost principles, procedures and general policy for the
determination of reimbursable costs applicable to the administration of
management and operating contracts are set for in this subpart. The
terms ''reimbursement'' and ''reimbursable'' are used interchangeably in
relation to ''allowable costs'' as a matter of editorial convenience.
No ''reimbursement'' is actually involved in those situations where the
cost-type contractor makes payments for ''allowable cost'' from
Government funds advanced to him by the DOE.
48 CFR 970.3100-1 Definitions.
Off-site work is contract required work (under a contract covered by
FAR Subpart 17.6) performed in contractor-owned facilities, such as a
central or branch office.
On-site work (under a contract covered by FAR Subpart 17.6) is work
performed at the Government-site.
Direct costs of a management and operating contract are defined as
follows:
(a) With respect to on-site work, ''direct costs'' technically
include all performance costs; that is, such costs are identified
specifically for, or account of, the contract. However, in some
circumstances it may be desirable or necessary because of the
requirements of the contract to distinguish between direct and indirect
types of costs. ''Direct costs,'' when the foregoing circumstances
apply, are those which are identified as having been incurred
specifically for, or on account of a designated cost objective, such as
a particular product (or groups of similar products), work order, job,
project, program or contract. Materials, labors or expenses which
relate specifically and solely to the manufacture of a particular
product or to the performance of a distinct job or work are broad
examples of direct costs. Direct costs are not limited to items
incorporated in an end product.
(b) With respect to ''off-site'' work, ''direct costs'' are as
defined in FAR 31.202 and discussed in other sections of this subpart.
''Indirect costs'' of a management and operating contract are defined
as follows:
(a) With respect to ''on-site'' work, when it is desirable or
necessary to distinguish them from direct costs, ''indirect costs'' are
those items of material, labor, and expenses not directly identified
with a single final cost accumulation point, but identified with
applicability to two or more objectives or with at least one
intermediate cost objective.
(b) With respect to ''off-site'' work, ''indirect cost'' are as
defined in FAR 31.203 and discussed in other sections of this subpart.
48 CFR 970.3100-2 Responsibilities.
(a) The Procurement Executive is responsible for developing and
revising the policy and procedures for the determination of allowable
costs reimbursable under a management and operating contract, and for
seeing that they are properly coordinated with other Headquarters'
offices having joint interests.
(b) The Head of the Contracting Activity is responsible for following
the policy, principles and standards set forth herein in establishing
the compensation provisions of contracts and subcontracts and for
submission of deviations for Headquarters consideration.
48 CFR 970.3100-3 Deviation.
Deviations from the policy and principles set forth in this subpart
shall not be made unless such action is authorized by the Procurement
Executive, on the basis of a written justification stating clearly the
special circumstances involved. Where appropriate, any approved
deviation shall be reflected in the compensation provisions of the
contract.
48 CFR 970.3101 General policy.
The cost policies of the DOE regarding management and operating
contracting are as discussed in this section:
48 CFR 970.3101-1 Actual cost basis.
(a) DOE shall reimburse its contractors for costs incurred in the
performance of a management and operating contract in accordance with
its terms and the provisions of this subpart. Such costs are those
allowable costs provided for in the contract to the extent that they are
necessary or incident, and either directly attributable or equitably
allocable to the work under the contract. This broad expression of the
DOE's cost-reimbursement policy is further developed and elaborated upon
throughout this subpart.
(b) DOE uses retrospective or after-the-fact determination, usually
called the actual cost basis, to establish the amount reimbursable.
This general policy precludes the use of predetermined fixed percentage
rates except for provisional payments.
(c) When a fixed compensation for any otherwise allowable cost is
separately negotiated, the items of such costs covered by the fixed
amount shall be identified with maximum clarity and set forth in an
appropriate appendices to the contract as an amount otherwise excludable
from other reimbursable costs (this is done in order to distinguish
between those allowable costs subject to reimbursement and those costs
which are covered by the negotiated fixed amount).
48 CFR 970.3101-2 Direct and indirect costs.
(a) Direct costs identified specifically with a management and
operating contract are direct cost of performing that contract and are
to be charged directly thereto. All costs specifically identified with
other final cost objectives of the management and operating contractor
are direct cost of those cost objectives and are not to be charged to
the contract directly or indirectly. For reasons of practicality, any
direct cost of minor dollar amount may be treated as an indirect cost if
the accounting treatment --
(1) Is consistently applied; and
(2) Produces substantially the same results as treating the cost as a
direct cost.
(b) Indirect cost are not subject to treatment as a direct cost and
thus directly chargeable to a contract. After direct costs have been
determined and charged directly to the contract or other work, indirect
costs are those remaining to be allocated from an appropriate indirect
cost accumulation account. The following principles and procedures
shall apply to indirect costs to the extent that they are incurred under
management and operating contracts.
(1) Indirect costs to the extent required to be or otherwise incurred
in the accounting system of the operating contractor shall be
accumulated by logical cost groupings with due consideration of the
reasons for incurring such costs. Each grouping should be determined so
as to permit distribution of the grouping on the basis of the benefits
accruing to the cost objectives to which it is to be allocated.
Generally, overhead and general and administrative (G&A) expenses are
separately grouped. Similarly, the particular case may require
subdivision of these groupings; e.g., building occupancy costs might be
separable from those of personnel administration within a specific
overhead group such as manufactoring overhead. This necessitates
selecting a distribution base common to all cost objectives to which the
grouping is to be allocated. The base should be selected so as to
permit allocation of the grouping on the basis of the benefits accruing
to the cost objectives. The number and composition of cost groupings
should be governed by practical considerations and should not unduly
complicate the allocation.
(2) Once an appropriate base for distributing indirect costs has been
accepted, it shall not be fragmented by removing individual elements.
For example, when a cost input base is used for the distribution of G&A
costs, all items that would properly be part of the costs input base,
whether allowable or unallowable, shall be included in the base and bear
their pro rata share or G&A costs.
(3) The method of allocating indirect costs shall be in accordance
with generally accepted accounting principles which are consistently
applied.
(4) A base period for allocating indirect costs is the cost
accounting period during which such costs are incurred and accumulated
for distribution to work performed in that period.
48 CFR 970.3101-3 General basis for reimbursement of costs.
(a) The total reimbursable cost of a DOE management and operating
contract is the sum of the allowable direct costs necessary or incident
to the performance of the contract, plus any properly allocable portion
of allowable indirect costs, (including corporate or home office G&A
expense, or branch office indirect expenses), if any, less applicable
income and other credits. In determining allowability and
reimbursability of costs, the following shall be considered:
(1) Reasonableness, including the exercise of prudent business
judgment;
(2) Allocability of a cost to management and operating contract. A
cost is allocable if it is assignable or chargeable for work and
performance of the contract in accordance with the relative benefits
received or other equitable relationship;
(3) Application of generally accepted accounting principles and
practices appropriate to identifying and measuring costs of performing
the contract in accordance with this subpart;
(4) All exclusions of and limitations of types and amounts of items
of cost set forth in the contract;
(5) Approvals by the contracting officer required under the contract
terms; and
(6) Cost accounting standards if applicable.
48 CFR 970.3101-4 Cost determination based on audit.
The amount reimbursable under management and operating contracts
shall be determined in accordance with the principles set forth in this
subpart and in accordance with the terms of the respective contract on
the basis of audit. In the event that the contractual terms differ, or
are inconsistent with (see 970.3100-3 for approval of deviations) the
principles stated herein, the contractual terms control. It is expected
however, contractual terms to be based on the principles therein. The
audit may be performed directly by DOE (or by the cognizant Federal
agency pursuant to arrangements made by the DOE).
(49 FR 12063, Mar. 28, 1984, as amended at 53 FR 24231, June 27,
1988)
48 CFR 970.3101-5 Contractor's system of accounting.
(a) Careful DOE study of a management and operating contractor's
usual accounting procedures shall be made prior to arriving at an
understanding with the contractor as to the accounting system to be
employed by the contractor during the period of contract performance.
(b) A contractor's customary accounting practices are usually
accepted for management and operating contracts if they conform to
generally accepted accounting principles, produce equitable results, are
consistently applied, are not in conflict with the provisions of this
subpart, are conducive to accurate costing of the contract work, and
produce reports required by the DOE.
48 CFR 970.3101-6 Advance understandings on particular cost items.
(a) It is important that agreement between DOE and its management and
operating contractors be reached in advance of the incurrence of costs
in categories where reasonableness as to amounts or allocability to the
management and operating contract are difficult to determine in order to
avoid possible subsequent disallowance or dispute. Any such agreement
should be incorporated in the contract. But the absence of such
agreement on any element of cost will not, in itself, serve to make the
element either allowable or unallowable. Examples of costs on which
advance agreements may be particularly important are:
(1) Deferred maintenance costs;
(2) Precontract costs;
(3) Professional or technical consulting services;
(4) Reconversion costs;
(5) Research and development costs;
(6) Royalties;
(7) Selling and distribution costs;
(8) Unemployment insurance experience ratings;
(9) Employee compensation, including amounts of money or percentage
of payment authorized to be expended annually for groups of employees
for all types of wage and salary increases, travel, relocation expenses
and other personnel costs.
(10) Lobbying costs;
(11) Public relations and advertising; and
(12) Travel and relocation costs as related to special or mass
personnel movements and as related to travel via contractor-owned
leased, or chartered aircraft.
(b) DOE generally utilizes two basic methods of achieving and
recording understandings with contractors as to the allowability of
employee compensation, travel, relocation, and other personnel costs:
(1) Negotiation of a personnel appendix to the contract, which sets
forth the policies, programs, and schedules which are accepted as the
basis for determining the allowability of costs; or (2) reviewing and
reaching agreements on established policies, programs, and schedules
(and any changes thereto during the contract term) applicable to
contractor's private operations which are acceptable for contract work
and which will be consistently followed throughout the contractor's
organization. A personnel appendix to the contract setting forth
advance understandings covering compensation for personal services shall
be utilized in management and operating contracts (as defined in FAR
17.601) when one or more of the following circumstances exist: when
policies, programs, and schedules are established specifically for
contract work; when the contractor's work is predominantly or
exclusively made up of negotiated Government contract work; when
contract work is so different from the organization's private work that
existing established policies, programs, and schedules cannot reasonably
be extended to and consistently applied on contract work; or, when
established policies, programs, and schedules proposed for contract work
are not sufficiently definitive to permit a clear advance mutual
understanding of allowable costs and to provide a basis for audit. The
Head of the Contracting Activity is authorized to select the alternative
method of achieving and recording advance understanding that they find
most appropriate, after considering the facts of the particular contract
situation. As used in this paragraph:
(c) With regard to the costs at (a)(9) of this section:
(1) Compensation for personal services includes wages and salaries,
bonuses and incentives, premium payments, pay for time not worked, and
supplementary compensation and benefits, such as pension and retirement,
group insurance, severance pay plans, and other forms of compensation
covered by 970.3102-2.
(2) Employee travel costs include transportation expenses incurred
while on official business, within the U.S. or outside the U.S. as
necessary. Travel of executive officers is covered in 970.3102-17.
Contractor travel policies must be acceptable to the Department, and
result in reasonable cost necessary for contract performance. To avoid
disputes and to clearly state the treatment that applies to travel cost,
advance understandings should be reached with the management and
operating contractor. They should be sufficiently definitive to
evidence the contractor's responsibility to minimize costs consistent
with contract performance. The allowability to certain travel costs,
such as air travel, are specifically limited by Department policy. For
example, the added cost of first class air travel is prohibited as a
reimbursable cost, except under stringent conditions, which must be
justified in writing. Contractually enforceable understandings
concerning the allowability and reimbursement of other potentially
significant travel costs (such as the use of Government-furnished
automobiles or Government-contract provided rental automobiles) should
be reached with the contractor. A reasonable basis for such
understandings is the Federal travel policy applicable to Government and
directly paid contractor employees.
(3) Other personnel costs include:
(i) Morale, health, welfare, food service and dormitory costs covered
in 970.3102-5;
(ii) Training and education costs covered in 970.5204-13 and
970.5204-14;
(iii) Relocation costs for relocating employees as discussed in
970.3102-16; and special or mass personnel movement covered in
970.3102-2(i).
(49 FR 12063, Mar. 28, 1984, as amended at 52 FR 1607, Jan. 14, 1987)
48 CFR 970.3102 Application of cost principles.
The incurred costs of performing management and operating contracts
shall be reimbursed to the extent they are reasonable, allocable, and
determined to be allowable under the provisions of this subpart and the
terms of the contract. The DOE principles on allowability of selected
items or classification of cost or situations expected to be associated
with the performance of contract work as stated in this section.
48 CFR 970.3102-1 General and administrative expenses.
(a) For on-site work, the DOE considers that its fee allowance for
management and operating contracts provides for the recognition of
appropriate compensation for home or corporate office general and
administrative expenses incurred in the general management of the
contractor's business as a whole.
(b) The above policy is intended to preclude the payment of general
and administrative expenses merely because they are incurred or
accounted for at or by a contractor's home or corporate office and not
the operating site. The DOE recognizes some benefit of such cost to the
DOE program. The basis of recognition through fee allowance is
associated with the difficulty of determining and assessing the dollar
value of such expenses that might be applicable to or have benefit to a
management and operating contract. Conventional allocation techniques;
i.e., total operating costs, labor dollars or hours, etc., are generally
not considered appropriate because they normally distribute such
expenses over a base representative or contractor investment (in terms
of its own resources, including labor, material, overhead, etc.).
Contractor investments and home office contributions are minimal under
DOE's operating and management contracts in as much as they are totally
financed and supported by DOE advance payments under the
letter-of-credit method and by DOE's provision of government-owned and
project-exclusive facilities, property, and other needed resources.
(c) Notwithstanding the concept in (a) above, it is recognized that
from time to time the fee amounts established for a management and
operating contract, to meet the purpose cited in 970.1509-1 and
consideration of the factors in 970.1509-4, may be considered
insufficient to adquately recognize a contractor's general and
administrative expenses incurred in general management and
administration of the contractor's business as a whole and which appear
to have a directly benefiting relationship to the DOE program. Such
recognitions may be the basis of requesting fee amounts in excess of the
limitations set forth in 970.1509-5 or alternatively, in any particular
case, the contractor may be compensated on the basis of cost in
accordance with 970.3101-1 if the Head of the Contracting Activity or
other approving contract official authorizes or approves the procedure
and a fair and reasonable amount can be agreed upon. Such amount shall
normally be in addition to the applicable fee amounts.
(d) The DOE allows company general and administrative expenses under
off-site architect-engineer, supply and research contracts with
commercial contractors performing the work in their own facilities.
Contractor's general and administrative expenses, may, however, be
included for reimbursement under such DOE off-site architect-engineer,
supply and research contracts, only to the extent that they are
established, after careful examination, to be allowable in nature an
properly allocable to the work. Work performed in a contractor's own
facilities under a management and operating or construction contract may
likewise be allowed to bear the properly allocable portion of allowable
company general and administrative expense.
48 CFR 970.3102-2 Compensation for personal services.
(a) General. Compensation for personal services includes all
remuneration paid currently or accrued, in whatever form and whether
paid immediately or deferred, for services rendered by employees to the
contractor during the period of contract performance (except as
otherwise provided for severance pay costs in paragraph (b)(4)(i) of
this section and for pension cost in paragraph (b)(1) of this section).
It includes, but is not limited to, salaries; wages; directors' and
executive committee members' fees; bonuses (including stock bonuses);
incentive awards; employee stock options, stock appreciation rights,
and stock ownership plans; employee insurance; fringe benefits;
contributions to pension, annuity, and management employee incentive
compensation plans; and allowances for off-site pay, incentive pay,
location allowances, hardship pay, severance pay, and cost of living
differential.
(b) Allowability. Reimbursable costs for compensation for personal
services are to be set forth in a personnel appendix in the contract as
discussed at 970.3101-6. This personnel appendix shall be negotiated
using the principles and policies of this 970.3102-2, and other
pertinent parts of the DEAR. However, costs that are unallowable
pursuant to other paragraphs of 970.3102 or contract terms shall not be
allowable under this 970.3102-2 on the basis they constitute
compensation for personnel services. Costs of compensation for personal
services are reimbursable to the extent that:
(1) The compensation is for personal services work performed by the
employee in the current year and must not represent a retroactive
adjustment of prior year's salaries or wages (but see 970.3102-2 (i),
(j), (l), (m), and (n));
(2) The compensation in total is reasonable for the work performed;
however, specific restrictions on individual compensation elements must
be observed where they are prescribed;
(3) The compensation is based upon and conforms to the terms and
conditions of the contractor's established compensation plan or practice
followed so consistently as to imply, in effect, an agreement to make
the payment;
(4) Any approvals prescribed by this 970.3102-2 are obtained. No
assumption of allowability will exist where the contractor introduces
major revisions of existing compensation plans or new plans and the
contractor --
(i) Has not notified the cognizant contracting officer of the changes
either before their implementation, or within a reasonable period after
their implementation, and
(ii) Has not provided the Government, either before implementation or
within a reasonable period after it, an opportunity to review the
allowability of the changes.
(5) Costs that are unallowable under the contract terms or other
paragraphs of this 970.3102 shall not be allowable under this 970.3102-2
solely on the basis that they constitute compensation for personal
services.
(c) Reasonableness. Subject to 970.3102-2(d) of this section
compensation for personal services will be considered reasonable if the
total compensation conforms generally to compensation paid by other
firms of the same size, in the same industry, or in the same geographic
area for similar services or work performed. This does not preclude the
Government from challenging the reasonableness of an individual element
of compensation where costs are excessive in comparison with
compensation paid by other firms of the same size, same industry, or in
the same geographic area for similar services. In administering this
principle, it is recognized that not every compensation case need be
subjected in detail to the above tests. The tests need be applied only
when a general review reveals amounts or types of compensation that
appear unreasonable or unjustified. In questionable cases, the
contractor has responsibility to support the reasonableness of
compensation in relation to the effort performed. Compensation costs
under certain conditions give rise to the need for special
consideration. Among such conditions are the following:
(1) Compensation to (i) owners of closely held corporations,
partners, sole proprietors, or members of their immediate families, or
(ii) persons who are contractually committed to acquire a substantial
financial interest in the contractor's enterprise. Determination should
be made that salaries are reasonable for the personal services rendered
rather than being a distribution of profits. Compensation in lieu of
salary for services rendered by partners and sole proprietors will be
allowed to the extent that it is reasonable and does not constitute a
distribution of profits. For closely held corporations, compensation
costs covered by this subparagraph shall not be recognized in amounts
exceeding those costs that are deductible as compensation under the
Internal Revenue Code and its regulations.
(2) Any change in a contractor's compensation policy that results in
a substantial increase in the contractor's level of compensation,
particularly when it was concurrent with an increase in the ratio of
Government contracts to other business, or any change in the treatment
of allowability of specific types of compensation due to changes in the
treatment of allowability of specific types of compensation due to
changes in Government policy. No presumption of reasonableness will
exist where major revisions of existing compensation plans or new plans
are introduced by the contractor; and the contractor --
(i) Has not notified the cognizant contracting officer of the change
either before their implementation or within a reasonable period after
their implementation; and
(ii) Has not provided the Government, either before implementation or
within a reasonable period after it, an opportunity to review the
reasonableness of the changes.
(3) The contractor's business is such that its compensation levels
are not subject to the restraints that normally occur in the conduct of
competitive business.
(4) The contractor incurs costs for compensation in excess of the
amounts which are deductible under the Internal Revenue Code and its
regulations.
(d) DOE review and approval of compensation paid individual
employees. In determining the reasonableness of compensation, the
compensation of each individual contractor employee normally need not be
subjected to review and approval. Generally, the compensation paid
individual employees should be left to the judgment of contractors
subject to the limitations of DOE-approved compensation policies,
programs, classification systems, and schedules, and amounts of money
authorized for wage and salary increases for groups of employees.
However, all compensation due an individual of $80,000 or more shall
require the contracting officer's or designee's review and approval. In
addition, it will often be necessary that employee compensation be
subjected to review and approval on an individual basis at a level below
$80,000, when the contracting officer finds it appropriate for the
particular situation. The contract shall specifically provide for the
approval by the contracting officer of the cost of compensating an
individual contractor employee above the level determined by the
contracting officer, if a total of 50 percent or more of such
compensation is reimbursed under DOE cost-type contracts. For purposes
of determining the level for individual review and approval, total
compensation as used in this paragraph includes only the employee's
salary and bonus or incentive compensation. As in the case of other
personnel and compensation costs, it is intended that contracting
officer review and approval of individual compensation normally will be
prior to incurrence of costs.
(e) Labor-management agreements. Notwithstanding any other DOE
requirements, costs of compensation are not allowable to the extent that
they result from provisions of labor-management agreements that, as
applied to work in performing Government contracts, are determined to be
unreasonable because they are either unwarranted by the character and
circumstances of the work or discriminatory against the Government. The
application of the provisions of a labor-management agreement designed
to apply to a given set of circumstances and conditions of employment
(e.g., work involving extremely hazardous activities or work not
requiring recurrent use of overtime) is unwarranted when applied to a
Government contract involving significantly different circumstances and
conditions of employment (e.g., work involving less hazardous activities
or work continually requiring use of overtime). It is discriminatory
against the Government if it results in employee compensation (in
whatever form or name) in excess of that being paid for similar
non-Government work under comparable circumstances. Disallowance of
costs will not be made under this paragraph (e) unless --
(1) The contractor has been permitted an opportunity to justify the
costs; and
(2) Due consideration has been given to whether unusual conditions
pertain to Government contract work, imposing burdens, hardships, or
hazards on the contractor's employees, for which compensation that might
otherwise appear unreasonable is required to attract and hold necessary
personnel.
(f) Salaries and wages. Salaries and wages for current services
include gross compensation paid to employees in the form of cash, stock
(see paragraph (h)(2) of this section regarding valuation), products, or
services, and are allowable.
(g) Domestic and foreign differential pay. (1) When personal
services are performed in a foreign country, compensation may also
include a differential that may properly consider all expenses
associated with foreign employment such as housing, cost of living
adjustments, transportation, bonuses, additional Federal, state, local
or foreign income taxes resulting from foreign assignment, and other
related expenses.
(h) Bonuses and incentive compensation. Incentive compensation and
cash bonuses based on production, cost reduction or efficient
performance, suggestion awards, and safety awards are to be treated as
allowable, to the extent that the contractor's overall compensation plan
is determined to be reasonable and such costs are paid or accrued,
pursuant to an agreement entered into in good faith between the
contractor and the employees before the services were rendered, or
pursuant to an established plan followed by the contractor so
consistently as to imply, in effect, an agreement to make such payment
(see 970.3101-6). In determining reasonableness, it will be necessary to
take into account, not only bonuses and incentive compensation payments
charged directly to the contract, but also payments charged indirectly
to the contract through overhead. Bonuses, awards, and incentive
compensation, when any of them are deferred, are to be treated as
allowable to the extent provided in paragraph (m) of this section.
(1) Bonuses and incentive compensation paid to employees other than
those whose pay is directly reimbursed will not be made allowable in
on-site construction and management and operating contracts, where home
office general and administrative expense is unallowable.
(2) When the costs of bonuses and incentive compensation are paid in
the stock of the contractor or of an affiliate, the following additional
restrictions apply:
(i) Valuation placed on the stock shall be the fair market value on
the measurement date (i.e., the first date the number of shares awarded
is known) determined upon the most objective basis available; and
(ii) Accruals for the cost of stock before issuing the stock to the
employees shall be subject to adjustment according to the possibilities
that the employees will not receive the stock and that their interest in
the accruals will be forefeited.
(3) When the bonus and incentive compensation payments are deferred,
the costs are subject to the requirements of paragraph (h)(1) of this
section and of paragraph (m) of this section.
(i) Severance pay. (1) Severance pay, also commonly referred to as
dismissal wages, is a payment in addition to regular salaries and wages
by contractors to workers whose employment is being involuntarily
terminated. Payments for early retirement incentive plans are covered
in paragraph (l)(6) of this section.
(2) Severance pay to be allowable must meet the general allowability
criteria in paragraph (i)(2)(i) of this section, and, depending upon
whether the severance is normal or abnormal, criteria in paragraph
(i)(2)(ii) of this section for normal severance pay or paragraph
(i)(2)(iii) of this section for abnormal severance pay also apply.
(i) Severance pay is allowable only to the extent that, in each case,
it is required by (A) law, (B) employer-employee agreement, (C)
established policy that constitutes, in effect, an implied agreement on
the contractor's part, or (D) circumstances of the particular
employment. Payments made in the event of employment with a replacement
contractor where continuity of employment with credit for prior length
of service is preserved under substantially equal conditions of
employment, or continued employment by the contractor at another
facility, subsidiary, affiliate, or parent company of the contractor are
not severance pay and are unallowable.
(ii) Actual normal turnover severance payments shall be allocated to
all work performed in the contractor's plant, or where the contractor
provides for accrual of pay for normal severances, that method will be
acceptable if the amount of the accrual is reasonable in light of
payments actually made for normal severances over a representative past
period and if amounts accrued are allocated to all work performed at the
facility.
(iii) Abnormal or mass severance pay is of such a conjectural nature
that measurement of costs by means of an accrual will not achieve equity
to both parties. Thus, accruals for this purpose are not allowable.
However, the Government recognizes its obligation to participate, to the
extent of its fair share, in any specific payment. Thus, allowability
will be considered on a case-by-case basis.
(3) Subject to paragraph (a) of this section, the following standards
apply in determining allowability of costs for severance pay plans of
management and operating contractors:
(i) Payments should be made only upon involuntary termination by
reduction in force (RIF) of an employee which results in a permanent
separation from the employment of the contractor. However, payments may
also be made upon voluntary separation of an employee within a RIF
grouping, but not otherwise scheduled for termination, which thereby
eliminates the need for terminating another employee involuntarily.
(ii) Payments should be not provided for in the event of temporary
layoffs; employment or offer of employment with a replacement
contractor (employer) where continuity of employment with credit for
prior length of service is preserved under substantially equal
conditions of employment; early or normal retirement; or continued
employment by the contractor at another facility, subsidiary, affiliate,
or parent company of the contractor. Contractor employees should not
have the option of refusing employment to receive severance pay.
(j) Backpay -- (1) Backpay resulting from violations of Federal labor
laws or the Civil Rights Act of 1964. Backpay may result from a
negotiated settlement, order, or court decree that resolves a violation
of Federal labor laws or the Civil Rights Act of 1964. Such backpay
falls into two categories: one requiring the contractor to pay
employees additional compensation for work performed for which they were
underpaid, and the other resulting from other violations, such as when
the employee was improperly discharged, discriminated against, or other
circumstances for which the backpay was not additional compensation for
work performed. Backpay resulting from underpaid work is compensation
for the work performed and is allowable. All other backpay resulting
from willful violation of Federal labor laws or the Civil Rights Act of
1964 is unallowable.
(2) Other backpay. Backpay may also result from payments to union
employees (union and non-union) for the difference in their past and
current wage rates for working without a contract or labor agreement
during labor management negotiations. Such backpay is allowable.
Backpay to nonunion employee based upon results of union agreement
negotiations is allowable only if (i) a formal agreement or
understanding exists between management and the employees concerning
these payments, or (ii) an established policy or practice exists and is
followed by the contractor so consistently as to imply, in effect, an
agreement to make such payment.
(k) Stock options, stock appreciation rights, and phantom stock
plans. (1) The cost of stock options awarded to employees to purchase
stock of the contractor or of an affiliate will be treated as deferred
compensation and must comply with the requirements of paragraph (m) of
this section and with the allowability criteria contained in paragraph
(k)(2) of this section. The allowable cost of stock appreciation
rights, whether offered separately or combined with stock options, will
be determined in the same manner as stock options.
(2) The allowable costs of stock options and stock appreciation
rights will be limited to the difference between the option price or
stock-appreciation-right price and the market price of the stock on the
measurement date (i.e., the first date on which both the number of
shares and the option or stock-appreciation-right price are known).
Accordingly, when the option or stock-appreciation-right price is equal
to or greater than the market price on the measurement date, then no
costs are allowed for contract costing purposes.
(3) In phantom-stock-type plans, contractors assign or attribute
contingent shares of stock to employees as if the employees own the
stock, even though the employees neither purchase the stock nor receive
title to it. Under these plans, an employee's account may be increased
by the equivalent of dividends issued and any appreciation in the market
price of the stock over the price of the stock on the measurement date
(i.e., the first date the number of shares awarded is known). Such
increases in employee accounts for dividend equivalents and market price
appreciation are unallowable.
(l) Pension costs. (1) A pension plan is a deferred compensation
plan that is established and maintained by one or more employers to
provide systematically for paying benefits to plan participants after
their retirement, provided that the benefits are paid for life or are
payable for life at the option of the employee. Additional benefits
such as permanent and total disability and death payments and
survivorship payments to beneficiaries of deceased employees may be
treated as pension costs, provided the benefits are an integral part of
the pension plan and meet all the criteria pertaining to pension costs.
(2) Pension plans are normally segregated into two types of plans:
defined benefit or defined contribution pension plans. Except as
provided by other DOE directives, the cost of all defined benefit
pension plans shall be measured, allocated, and accounted for in
compliance with the provisions of CAS 412, Composition and Measurement
of Pension Costs, and CAS 413, Adjustment and Allocation of Pension
Cost. The costs of all defined contribution pension plans shall be
measured, allocated, and accounted for in accordance with the provisions
of CAS 412. Pension costs are allowable subject to directives issued by
the Office of Labor Relations, Headquarters, the referenced standards
and the cost limitations and exclusions set forth below in this
paragraph and in paragraphs (l)(3), (4), (5), (6), and (7) below.
(i) To be allowable in the current year, pension costs must be funded
by the time set for filing the Federal income tax return or any
extension thereof. Pension costs assigned to the current year, but not
funded by the tax return time, shall not be allowable in any subsequent
year.
(ii) Pension payments must be reasonable in amount and be paid
pursuant to (A) an agreement entered into in good faith between the
contractor and employees before the work or services are performed and
(B) the terms and conditions of the established plan. The cost of
changes in pension plans which are discriminatory to the Government or
are not intended to be applied consistently for all employees under
similar circumstances in the future are not allowable.
(iii) Except as provided for early retirement benefits in paragraph
(l)(6) below, one-time-only pension supplements not available to all
participants of the basic plan are not allowable as pension costs unless
the supplemental benefits represent a separate pension plan and the
benefits are payable for life at the option of the employee.
(iv) Increases in payments to previously retired plan participants
covering cost-of-living adjustments are allowable if paid in acordance
with a policy or practice consistently followed.
(3) Defined benefit pension plans. This paragraph covers pension
plans in which the benefits to be paid or the basis for determining such
benefits are established in advance and the contributions are intended
to provide the stated benefits. The cost limitations and exclusions
pertaining to defined benefit plans are as follows:
(i) Normal costs of pension plans not funded in the year incurred,
and all other components of pension costs (see CAS 412.40(a)(1))
assignable to the current accounting period but not funded during it,
shall not be allowable in subsequent years (except that a payment made
to a fund by the time set for filing the Federal income tax return or
any extension thereof is considered to have been made during such
taxable year). However, any part of a pension cost that is computed for
a cost accounting period that is deferred pursuant to a waiver granted
under the provisions of the Employee's Retirement Income Security Act of
1974 (ERISA) (see CAS 412.50(c)(3)), will be allowable in those future
accounting periods in which the funding does occur. The allowability of
these deferred contributions will be limited to the amounts that would
have been allowed had the funding occurred in the year the costs would
have been assigned except for the waiver.
(ii) Any amount paid or funded before the time it becomes assignable
and allowable shall be applied to future years, in order of time, as if
actually paid and deductible in those years. The interest earned on
such premature funding, based on the valuation rate of return, may be
excluded from future years' computations of pension costs in accordance
with CAS 412.50(a)(7).
(iii) Increased pension costs caused by delay in funding beyond 30
days after each quarter of the year to which they are assignable are
unallowable. If a composite rate is used for allocating pension costs
between the segments of a company and if, because of differences in the
timing of the funding by the segments, an inequity exists, allowable
pension costs for each segment will be limited to that particular
segment's calculation of pension costs as provided for in CAS
413.50(c)(5). Determination of unallowable costs shall be made in
accordance with the actuarial method used in calculating pension costs.
(iv) Allowability of the cost of indemnifying the Pension Benefit
Guaranty Corporation (PBGC) under ERISA section 4062 or 4064 arising
from terminating an employee deferred compensation plan will be
considered on a case-by-case basis; provided that if insurance was
required by the PBGC under ERISA section 4023, it was so obtained and
the indemnification payment is not recoverable under the insurance.
Consideration under the foregoing circumstances will be primarily for
the purpose of appraising the extent to which the indemnification
payment is allocable to Government work. If a beneficial or other
equitable relationship exists, the Government will participate in the
indemnification payment to the extent of its fair share.
(4) Defined contribution pension plans. This paragraph covers those
pension plans in which the contributions to be made are established in
advance and the level of benefits is determined by the contributions
made. It also covers profit sharing, savings plans, and other such
plans provided the plans fall within the definition of a pension plan in
paragraph (l)(1) of this section.
(i) The pension cost assignable to a cost accounting period is the
net contribution required to be made for that period after taking into
account dividends and other credits, where applicable. However, any
portion of pension cost computed for a cost accounting period that is
deferred pursuant to a waiver granted under the provisions of ERISA (see
CAS 412.50(c)(3)) will be allowable in those future accounting periods
when the funding does occur. The allowability of these deferred
contributions will be limited to the amounts that would have been
allowed had the funding been made in the year the costs would have been
assigned except for the waiver.
(ii) Any amount paid or funded to the trust before the time it
becomes assignable and allowable shall be applied to future years, in
order of time, as if actually paid and deductible in such years.
(iii) The provisions of paragraph (l)(3)(vi) of this section
concerning payments to PBGC apply to defined contribution plans.
(5) Pension plans using pay-as-you-go methods. A pension plan using
pay-as-you-go methods is a plan in which the contractor recognizes
pension cost only when benefits are paid to retired employees or their
beneficiaries. Regardless of whether the payment of pension benefits
contribution can or cannot be compelled, allowable costs for these types
of plans shall not exceed an amount computed as follows:
(i) Compute, by using an actuarial cost method, the plan's actuarial
liability for benefits earned by plan participants. This entire
liability is always unfunded for a pay-as-you-go plan.
(ii) Compute a level amount which, including an interest equivalent,
would amortize the unfunded actuarial liability over a period of no less
than 10 or more than 40 years from the inception of the liability.
(iii) Compute, by using an actuarial cost method, a normal cost for
the period.
(iv) The sum of paragraphs (l)(5) (i), (ii), and (iii) of this
section represents the amount of pension costs assignable to the current
period. This amount, however, is limited to the amount paid in the
year.
(v) For purposes of determining contract cost where a pay-as-you-go
plan is initiated as either a supplemental plan or an additional but
separate plan to a basic funded plan, the plans will be treated as one
plan; e.g., the actuarial cost method, past service amortization
period, etc., of the basic plan will be used on the supplemental or
additional pay-as-you-go plan in determining the proper costs assignable
to the current period. Any costs in excess of those determined by using
the actuarial cost method and assumptions of the basic plan are
unallowable. However, where assumption for salary progressions,
mortality rates of the participants, and so forth are significantly
different, the assumptions used for the basic and supplemental plan may
be different.
(vi) The requirements of paragraphs (l)(3) (i) through (iv) of this
section are also applicable to pay-as-you-go plans.
(6) Early retirement incentive plans. An early retirement incentive
plan is a plan under which employees receive a bonus or incentive, over
and above the requirement of the basic pension plan, to retire early.
These plans normally are not applicable to all participants of the basic
plan and do not represent life income settlements, and as such would not
qualify as pension costs. However, for contract costing purposes, early
retirement incentive payments are allowable subject to pension criteria
contained in paragraphs (l)(3)(i) through (iv) provided --
(i) The costs are accounted for and allocated in accordance with the
contractor's system of accounting for pension costs (see paragraph
(l)(5)(v) of this section for supplemental pension benefits);
(ii) The payments are made in accordance with the terms and
conditions of the contractor's plan;
(iii) The plan is applied only to active employees. The cost of
extending the plan to employees who retired or were terminated before
the adoption of the plan is unallowable; and
(vi) The total of the incentive payments to any employee may not
exceed the amount of the employee's annual salary for the previous
fiscal year before the employee's retirement.
(7) Employee stock ownerhip plans (ESOP). (i) An ESOP is an
individual stock bonus plan designed specifically to invest in the stock
of the employer corporation. The contractor's contributions to an
Employee Stock Ownership Trust (ESOT) may be in the form of cash, stock,
or property. Costs of ESOP's are allowable subject to the following
conditions:
(A) Contributions by the contractor in any one year may not exceed 15
percent (25 percent when a money purchase plan is included) of salaries
and wages of employees partcipating in the plan in any particular year.
(B) The contribution rate (ratio of contribution to salaries and
wages of participating employees) may not exceed the last approved
contribution rate except when approved by the contracting officer based
upon justification provided by the contractor. When no contribution was
made in the previous year for an existing ESOP, or when a new ESOP is
first established, and the contractor proposes to make a contribution in
the current year, the contribution rate shall be subject to the
contracting officer's approval.
(C) When a plan or agreement exists wherein the liability for the
contribution can be compelled for a specific year, the expense
associated with that liability is assignable only to that period. Any
portion of the contribution not funded by the time set for filing of the
Federal income tax return for that year or any extension thereof shall
not be allowable in subsequent years.
(D) When a plan or agreement exists wherein the liability for the
contribution cannot be compelled, the amount contributed for any year is
assignable to that year provided the amount is funded by the time set
for filing of the Federal income tax return for that year.
(E) When the contribution is in the form of stock, the value of the
stock contribution shall be limited to the fair market value of the
stock on the date that title is effectively transferred to the trust.
Cash contributions shall be allowable only when the contractor furnishes
evidence satisfactory to the contracting officer demonstrating that
stock purchases by the ESOT are or will be at a fair market price;
e.g., makes arrangements with the trust permitting the contracting
officer to examine purchases of stock by the trust to determine that
prices paid are at fair market value. When excessive prices are paid,
the amount of the excess will be credited to the same indirect cost
pools that were charged for the ESOP contributions in the year in which
the stock purchase occurs. However, when the trust purchases the stock
with borrowed funds which will be repaid over a period of years by cash
contributions from the contractor to the trust, the excess price over
fair market value shall be credited to the indirect cost pools pro rata
over the period of years during which the contractor contributes the
cash used by the trust to repay the loan. When the fair market value of
unissued stock or stock of a closely held corporation is not readily
determinable, the valuation will be made on a case-by-case basis taking
into consideration the guidelines for valuation used by the IRS.
(ii) Amounts contributed to an ESOP arising from either (A) an
additional investment tax credit (see 1975 Tax Reduction Act-TRASOP's);
or (B) a payroll-based tax credit (see Economic Recovery Tax Act of
1981) are unallowable.
(iii) The requirements of paragraphs (l)(3)(ii) of this section are
applicable to Employee Stock Ownership Plans.
(m) Deferred compensation. (1) Deferred compensation is an award
given by an employer to compensate an employee in a future cost
accounting period or periods for services rendered in one or more cost
accounting periods before the date of receipt of compensation by the
employee. Deferred compensation does not include the amount of year-end
accruals for salaries, wages, or bonuses that are paid within a
reasonable period of time after the end of a cost accounting period.
Subject to 970.3102-2(a), deferred awards are allowable when they are
based on current or future services. Awards made in periods subsequent
to the period when the work being remunerated was performed are not
allowable.
(2) The costs of deferred awards shall be measured, allocated, and
accounted for in compliance with the provisions of CAS 415, Accounting
for the Cost of Deferred Compensation.
(3) Deferred compensation payments to employees under awards made
before the effective date of CAS 415 are allowable to the extent they
would have been allowable under prior acquisition regulations.
(n) Fringe benefits. Fringe benefits are allowances and services
provided by the contractor to its employees, as compensation, in
addition to regular wages and salaries. Subject to the determination
that total compensation is reasonable in accordance with this
970.3102-2, costs of fringe benefits such as pay for vacations,
holidays, sick leave, military leave, employee insurance, pension,
retirement plans, and supplemental unemployment benefit plans are to be
treated as allowable, provided such fringe benefits meet the following
conditions;
(1) The benefits contribute to the performance of contract work and
are appropriate for reimbursement from public funds;
(2) Such benefit plans as exist in the contractor's private
operations that are inconsistent with DOE published requirements are
appropriately modified or disallowed;
(3) Employee benefit plans especially established to meet the
particular needs of the contract are in conformity with published DOE
policy and standards;
(4) Appropriate controls under the contract are established to assure
that employees on contract work are treated no more or no less favorably
than employees in the contractor's private operation, except to the
extent that paragraphs (n)(2) and (3) of this section apply;
(5) To the fullest extent possible, definite limitations or terminal
points are established for each of the various benefit plans, so that
DOE's full liability with respect thereto is established under the
contract; and
(6) DOE has access to all information necessary to complete
understanding of the means of computing or determining the cost of the
benefits afforded contract employees and their dependents under the
benefit plans.
(o) Training and education expenses. See 970.5204-13 and
970.5204-14.
(49 FR 12063, Mar. 28, 1984, as amended at 49 FR 26744, June 29,
1984; 49 FR 32953, Oct. 2, 1984; 55 FR 5462, Feb. 15, 1990; 56 FR
41965, Aug. 26, 1991)
48 CFR 970.3102-3 Cost of money.
Cost of money as an element of the (a) cost of facilities capital
(CAS 414) and (b) cost of capital assets under construction (CAS 417) is
not an allowable cost under DOE management and operating contracts.
Under the provisions of CAS 414 and CAS 417, cost of money is an imputed
cost applicable to contractor owned and financed tangible capital assets
employed in contract performance or being constructed, fabricated, or
developed for ultimate employment in contract performance. Cost of
money is not applicable to DOE management and operating contracts since
the Government provides for assets used, or under construction for use
in performance of its contracts (such as through Government furnished or
contractor-acquired Government property contract provisions and/or
through granting cash advances, including letters-of-credit.)
48 CFR 970.3102-4 Depreciation.
(a) Depreciation is allowable subject to the following:
(1) The charge represents normal depreciation on a contractor's plant
and equipment used in performance of management and operating work.
(2) The charge to current operations is a distribution of the cost of
acquisition of a tangible capital asset, less estimated residual value,
over the estimated useful life of the asset, in a systematic and logical
manner.
(3) Any generally accepted accounting method consistently applied to
assets concerned having the approval of the Internal Revenue Service for
Federal income tax purposes, if subject to the Internal Revenue Code of
1954, as amended, may be used including:
(i) The straight-line method;
(ii) The declining balance method, using a rate not exceeding twice
the rate which would have been used had the annual allowance been
computed under the method described in paragraph (a)(3)(i) of this
section;
(iii) The sum-of-the-years digits method;
(iv) Any other consistent method productive of an annual allowance
which, when added to all allowances for the period commencing with the
use of the property and including the current year, does not, during the
first two-thirds of the useful life of the property, exceed the total of
such allowances which would have been used, had such allowances been
computed under the method described in paragraph (a)(3)(ii) of this
section.
(4) If a nonprofit or tax-exempt organization, the method shall be
such that it could have had the approval of the Internal Revenue
Service, had the organization been subject to the Internal Revenue Code
of 1954, as amended.
(5) The contractor must use the same approved method of depreciation
for costing its contract work as for costing its other work at the same
facility.
(6) The method of depreciation shall produce equitable and reasonable
results.
(b) Depreciation of the following is unallowable:
(1) Idle or excess facilities (machinery and equipment), other than
reasonable standby facilities;
(2) Assets fully amortized or depreciated on the contractor's books;
(3) Unrealized appreciation of values of assets; and
(4) Accelerated amortization under Certificates of Necessity or other
system in excess of normal depreciation, as computed under paragraph (a)
of this section.
(c) In entering into contracts involving the use of ''special
facilities'' under section 161 of the Atomic Energy Act of 1954, as
amended (section 7 of Pub. L. 85-681 approved Aug. 19, 1958), the
percentage of the total cost of such special facilities devoted to
contract performance and chargeable to the DOE should not exceed the
ratio between the period of contract deliveries and the anticipated
useful life of such facilities.
48 CFR 970.3102-5 Employee morale, health, welfare, food service, and
dormitory costs.
(a) Employee morale, health, and welfare activites are those services
or benefits provided by the contractor to its employees to improve
working conditions, employer-employee relations, employee morale, and
employee performance. These activities include such items as house or
employee publications, health or first-aid clinics, recreation, employee
counseling services and, for the purpose of this section, food service
and dormitory costs. However, these activities do not include, and
should be differentiated from compensation for personal services as
defined in 970.3102-2. Food and dormitory services include operating or
furnishing facilities for cafeterias, dining rooms, canteens, lunch
wagons, vending machines, living accommodations, or similar types of
services for the contractor's employees at or near the contractor's
facilities or site of the contract work.
(b) Except as limited by paragraph (c) of this section, the aggregate
of costs incurred on account of all activities mentioned in paragraph
(a) of this section, less income generated by all such activities, is
allowable to the extent that the net aggregate cost of all such
activities, as well as the net cost of each individual activity, is
reasonable and allocable to the contract work. Additionally, advance
understandings with respect to the costs mentioned in paragraph (a) of
this section are to be reached prior to the incurrence of these costs as
required in 970.3101-6.
(c) Losses from the operation of food or dormitory services may be
included as costs incurred under paragraph (b) of this section, only if
the contractor's objective is to operate such services at least on a
break-even basis. Losses sustained because food services or lodging
accommodations are furnished without charge or at prices or rates which
obviously would not be conducive to accomplishment of the above
objective, are not allowable, except in those instances where the
contractor can demonstrate that unusual circumstances exist, such that,
even with efficient management, operation of the services on a
break-even basis would require charging inordinately high prices, or
prices or rates higher than those charged by commercial establishments
offering the same services in the same geographical areas. Typical
examples of such unusual circumstances are: (1) Where the contractor
must provide food or dormitory services at remote locations where
adequate commercial facilities are not reasonably available, or (2)
where it is necessary to operate a facility at a lower volume than the
facility could economically support. Cost of food and dormitory
services shall include an allocable share of indirect expenses
pertaining to these activities.
(d) In those situations where the contractor has an arrangement
authorizing an employee association to provide or operate a service such
as vending machines in the contractor's plant, and retain the profits
derived therefrom, such profits shall be treated in the same manner as
if the contractor were providing the service (but see paragraph (e) of
this section).
(e) Contributions by the contractor to an employee organization,
including funds set over from vending machines receipts or similar
sources, may be included as cost incurred under paragraph (b) of this
section, only to the extent that the contractor demonstrates that an
equivalent amount of the costs incurred by the employee organization
would be allowable, if incurred by the contractor directly.
48 CFR 970.3102-6 Facilities (plant and equipment).
(a) Use of Government-owned facilities. If the Government furnishes
to the contractor, or the contractor acquires at Government expense,
Government-owned equipment with which to do all or a significant amount
of the work under the DOE contract, on which equipment the Government is
bearing the expenses of depreciation, maintenance, insurance, and taxes,
appropriate procedures must be established to avoid apportioning to DOE
work performed with DOE-owned equipment, a share of the expenses of
depreciation, maintenance, insurance and taxes on the contractor's
equipment not used to perform such work. If the Government-owned
equipment is placed in a segregated area, that area should be accounted
for as a separate department. If the Government-owned equipment is not
placed at the separate area, other steps must be taken to avoid what
would amount to a double equipment burden on work performed with the
Government-owned facilities. Such work shall be so accounted for as to
be relieved of charges for expenses related to contractor's equipment
not used in its performance.
(b) Contractor's costs covering plant and equipment. Charges
relating to contractor-owned plant and equipment shall be restricted to
the applicable costs, such as depreciation, maintenance, insurance, and
taxes, and shall not be on a rental basis. (Compensation in excess of
costs is covered by the fixed fee.) Rentals of plant or equipment owned
by third parties are normally allowable, if the rates are reasonable in
the light of the type, value, condition of the property involved, and
option and other provisions of the lease agreement. However, where the
plant and equipment used by the contractor is rented by the contractor
under a sale and lease-back agreement, only the normal costs (such as
depreciation, maintenance, insurance, and taxes) that would have been
incurred if the contractor had retained title to the facilities, should
be allowed. Allowances for plant and equipment rented under agreements
that are not arms-length transactions should be similarly restrictive.
48 CFR 970.3102-7 Legislative lobbying costs.
Contractor costs incurred to influence (directly or indirectly)
legislative action on any matter pending before Congress or a State
legislature are not allowable contract costs and shall not be reimbursed
by DOE. This statutory based cost prohibition (See 42 U.S.C. 7256a, as
amended) is specified in the applicable cost principles clauses at
970.5204-13(e)(31) or 970.5204-14(e)(29). Definitive cost principle
criteria for determining the types of legislative liaison activity costs
which are not reimbursable under M&O contracts are set forth in the
contract clause at 970.5204-17. The referenced clauses are effective,
retroactively, as of January 14, 1987, and any change made to the cost
principle criteria specified therein constitutes a deviation requiring
Procurement Executive approval pursuant to 970.3100-3.
(53 FR 21648, June 9, 1988)
48 CFR 970.3102-8 Membership in trade, business and professional
organizations.
(a) The costs of memberships in trade, business and technical
organizations are unallowable, except as approved by the contracting
officer.
(b) In considering approval of membership dues, the contracting
officer shall:
(1) Ensure that dues payments to an organization are clearly
justified and provide necessary and specific agency benefit;
(2) Do not constitute payments for, or in support of partisan and
political activity; and,
(3) Are solely for purposes of enhancing trade, business, or
technical knowledge necessary for, and related to, performance of DOE
contracts.
48 CFR 970.3102-9 Outside technical and professional consultants.
Technical and professional consultants, as used here, refer to
private individuals acting in their own behalf, who make their services
available on a fee or per diem basis. It does not refer to employees of
firms acting in the firm's behalf whose services may be made available
by the firm on, for example, a fixed rate basis. Consultant
arrangements may permit bringing to contract work, the services of
outstanding specialists who would not be available on a full-time basis,
or whose employment on a full-time basis would not be economically
feasible. Costs of such outside consultant services are normally
allowable (however, see 970.5204-13 and 970.5204-14 regarding
compensation of an individual who is employed by another contractor and
concurrently performing work on a full-time annual basis under a DOE
cost-type contract), provided that the servies are essential to, and
will make a material contribution to, the performance of contract work;
the services may be performed more economically or more successfully by
a consultant than by the contractor's regular personnel; the fee or per
diem charged is reasonable; and, when approved by the contracting
officer. If the cost of such services is charged directly to the DOE
contract, the cost of like items properly chargeable only to other work
of the contractor must be eliminated from indirect costs allocable to
the DOE contract (see 970.3101-2).
(49 FR 12063, Mar. 28, 1984; 49 FR 38953, Oct. 2, 1984)
48 CFR 970.3102-10 Overtime, shift, and holiday premiums.
(a) Overtime, shift, and holiday premiums are allowable only to the
extent provided in the contract or approved by the contracting officer.
The amount of such premiums charged to a management and operating
contract shall be equitable in relation to the amount of such costs
charged to other work currently performed in the contractor's plant and
the factors which necessitate incurrence of the costs. When the
necessity for overtime, shift, and holiday work arises from inadequacy
of the contractor's plant or department to perform its total workload on
a purely straight-time basis, inclusions in overhead for apportionment
to all work of the plant or department, as the case may be, appears
appropriate. When particular work, DOE or other, is being specially
expedited to a point that its fair share of the contractor's purely
straight-time efforts on a single-shift basis will not get the
particular job completed within the time desired, direct charging of the
related premiums appears appropriate.
(b) When premiums for overtime, shift, and holiday work are charged
direct to the work concerned, if the operating overhead of the plant or
related department is distributed on the basis of direct labor (cost or
hours), the premiums should be excluded from the direct labor base for
purposes of overhead distribution. That is, the direct labor base
should be, as appropriate, direct labor straight-time cost or direct
labor hours actually worked. While the premiums for authorized
overtime, shift, and holiday work are acceptable as reimbursable costs,
it is generally recognized that direct labor hours worked on an
overtime, shift, or holiday basis should participate in indirect costs
to the same extent as hours worked on a straight-time basis.
48 CFR 970.3102-11 Page charges in scientific journals.
It is a policy of the DOE to permit DOE contractors to budget for and
pay page charges for scientific journal publication, as a necessary part
of research costs, in all cases where:
(a) The research papers report work supported by the Government.
(b) The charges are levied impartially on all research papers
published by the journal, whether by non-Government or by Government
authors.
(c) Payment of such charges is in no sense a condition for acceptance
of manuscripts by the journal.
(d) The journals involved are not operated for profit.
(e) The author does not receive an emolument from the journal for the
research paper.
48 CFR 970.3102-12 Plant reconversion costs.
Plant reconversion costs are those incurred in the restoration of the
contractor's facilities to approximately the same condition existing
immediately prior to the commencement of the contract work, fair wear
and tear excepted.
48 CFR 970.3102-13 Precontract costs.
Precontract costs are those incurred prior to the effective date of
the contract directly pursuant to the negotiation and in anticipation of
the award of the contract, where such incurrence is necessary to comply
with the proposed contract delivery schedule. Such costs are allowable
to the extent that they would have been allowable if incurred after
effective the date of the contract. They do not include costs of
preparing bids or of participation in the negotiation. The allowability
of precontract costs is dependent upon appropriate coverage in the
contract.
48 CFR 970.3102-14 Preparatory and make-ready costs.
Since indirect costs are usually apportioned to individual jobs
wholly or substantially on the basis of the direct labor applied to the
particular job, a contract will absorb no overhead by apportionment
prior to the inception of the actual performance of direct work on the
contract. The effort of the contractor's overhead organization in
preparing for one job and in getting it underway, will thus be absorbed
by jobs previously commenced and still being performed; later, the job,
which in its initial stages of preparation and make-ready was relieved
of expenses that were actually applicable to it, will partially absorb,
through their apportionment as overhead, similar costs equally
applicable in fact to other, subsequently undertaken jobs. This
procedure is in accordance with generally accepted accounting practices
and normally is reasonably equitable in its results. The initial
advantages and subsequent disadvantages to the individual contract that
result from consistent application of the procedure tend to offset each
other and balance out. It is quite appropriate, however, to employ the
direct charge method in connection with overhead costs in preparing for
actual performance by segregating such preparatory and make-ready costs
and identifying them specifically with the contract to which the effort
actually pertains. However, if preparatory and make ready costs are
charged direct to a DOE contract, care must be taken, as performance of
the DOE contract work proceeds toward completion, to segregate
subsequent indirect expenses similarly applicable to the preparation
for, and commencement of, other jobs and to account for them as direct
charges to those other jobs.
48 CFR 970.3102-15 Procurement: Subcontracts, contractor-affiliated
sources, and leases.
(a) Subcontracts. Award and management policies for subcontracts
placed under operating contracts when necessary to the performance of
the required services and work efforts of the management and operating
contractor are set forth in 970.71. The cost of performing such
subcontracts shall be allowable under the DOE contract when (1) the
award/approval is otherwise in accord with the contract terms and
conditions and the provisions of 970.71 and (2) the reimbursement of
subcontractor costs of the management and operating contractor is in
accordance with the provisions of the DOE cost principles set forth in
FAR 31, as appropriate to the type of subcontractor being selected;
i.e., commercial, educational, state/local government, or nonprofit
organization.
(b) Procurement or transfer from contractor-affiliated sources (See
970.7105). Allowance for all equipment, materials, supplies, and
services which are sold or transferred between any division, subsidiary,
or affiliate of a management and operating contractor under a common
control shall be on the basis of cost incurred in accordance with the
terms of the contract; except, when it is the established practice of
the transferring organization to price inter-organization transfers of
equipment, materials, supplies, and services at other than cost for
commercial work of the contractor or any division, subsidiary, or
affiliate of the contractor under a common control, allowance may be at
a price when:
(1) It is based on an ''established catalog or market price of
commercial items sold in substantial quantities to the general public''
in accordance with FAR 15.8 or
(2) It is the result of ''adequate price competition'' in accordance
with FAR 15.8 and is the price at which an award was made to the
affiliated organization, after obtaining quotations of an equal basis
from such organization and one or more outside sources which normally
produce the item or its equivalent in significant quantity, provided
that in either case:
(i) The price is not in excess of the transferor's current sales
price to its most favored customer (including any division, subsidiary,
or affiliate of the contractor under a common control) for a like
quantity under comparable conditions, and
(ii) The price is not determined to be unreasonable by the
contracting officer, provided, however, that if the price is determined
unreasonable, such determination must be supported by an enumeration of
facts on which it is based and approved at a level above the contracting
officer. The price determined in accordance with paragraph (a) of this
section should be adjusted, when appropriate, to reflect the quantities
being procured and may be adjusted upward or downward to reflect the
actual cost of any modifications necessary because of contract
requirements.
(c) Leases. Contractor lease payments will be considered an
allowable cost when a leasing arrangement is not prohibited by the
contract terms (e.g., see 970.5204-22). If a lease for property, plant
or equipment (land and/or depreciable assets) is required to be
classified as a capital lease under generally accepted accounting
principles (GAAP), imputed interest costs determined in accordance with
GAAP for any such contractor lease shall be an allowable contract charge
if the following are met:
(1) The specific decision to enter into a capital leasing arrangement
is authorized by DOE in accordance with applicable DOE procedures, prior
to execution of the lease,
(2) The lease is accounted for in accordance with GAAP, and
(3) The imputed interest costs are separately accounted for in
special DOE accounts established for the recordation of such costs.
(49 FR 12063, Mar. 28, 1984, as amended at 53 FR 24231, June 27,
1988; 55 FR 41540, Oct. 12, 1990)
48 CFR 970.3102-16 Relocation costs.
(a) Relocation costs are costs incident to the permanent change of
duty assignment (for an indefinite period or for a stated period of not
less than 12 months) of an existing employee or upon recruitment of a
new employee. The following types of costs are allowable as noted,
subject to provisions of paragraphs (b), (c), and (d) of this section.
(1) Costs of travel of the employee and members of his/her immediate
family and transportation of household and personal effects to the new
location.
(2) Costs of finding a new home, such as advance trips by employees
and spouses to locate living quarters, and temporary lodging during the
transition periods, not exceeding separate cumulative totals of 60 days
for employees and 45 days for spouses and dependents, including advance
trip time.
(3) Closing costs (i.e., brokerage fees, legal fees, appraisal fees,
points, finance charges, etc.) incident to the disposition of actual
residence owned by the employee when notified of transfer; Provided
that closing costs when added to the continuing costs described in
(a)(6) of this section shall not exceed 14% of the sales price of the
property sold.
(4) Other necessary and reasonable miscellaneous expenses incident to
relocation, such as disconnection and connecting household appliances;
automobile registration; drivers license and use taxes; cutting and
fitting rugs, draperies, and curtains; forfeited utility fees and
deposits; and purchase of insurance against damage to or loss of
personal property while in transit.
(5) Costs incident to the acquisition of a home in a new location,
except that these costs will not be allowable for existing employees or
newly recruited employees who prior to the relocation were not
homeowners and the total costs shall not exceed 5% of the purchase price
of the new home.
(6) Continuing costs of ownership of the vacant former actual
residence being sold, such as maintenance of building and grounds
(exclusive of fixing up expenses), utilities, taxes, property insurance,
mortgage interest, etc., after settlement date or lease date of new
permanent residence; Provided that when added to the closing costs
described in (a)(3) of this section, the costs shall not exceed 14% of
the sales price of the property sold.
(7) Mortgage interest differential payments, except that these costs
are not allowable for existing or newly recruited employees who prior to
the relocation were not homeowners, and the total payments are limited
to an amount determined as follows:
(i) Difference between the mortgage interest rates of the old and new
residence times the current balance of the old mortgage times 3 years;
and
(ii) When mortgage differential payments are made on a lump sum basis
and the employee leaves or is transferred again in less than 3 years,
the amount initially recognized shall be proportionately adjusted to
reflect payments only for the actual time of the relocation.
(8) Rental differential payments covering situations where relocated
employees retain ownership of a vacated home in the old location and
rent at the new location. The rented quarters at the new location must
be comparable to those vacated, and the allowable differential payment
may not exceed the actual rental costs for the new home, less the fair
market rent for the vacated home times 3 years.
(9) Cost of canceling an unexpired lease.
(b) The costs described in (a) of this section must also meet the
following criteria to be considered allowable.
(1) The move is for the benefit of the Government.
(2) Reimbursement must be in accordance with an established policy or
practice and program that is consistently followed and is designed to
motivate employees to relocate promptly and economically.
(3) Amounts to be reimbursed do not exceed the employee's actual
expenses, except that for miscellaneous costs of the type discussed in
(a)(4) of this section, a flat amount, not to exceed $1,000, may be paid
in lieu of actual costs.
(c) The following types of costs are not allowable:
(1) Loss on sale of a home.
(2) Continuing mortgage principle payments on residence being sold.
(3) Cost incident to the acquisition of a home in a new location as
follows:
(i) Real estate brokers fees and commissions;
(ii) Costs of litigation;
(iii) Real and personal property insurance against damage or loss of
property;
(iv) Mortgage life insurance;
(v) Owner's title policy insurance when such insurance was not
previously carried by the employees on the old residence (however, costs
of a mortgage title policy is allowable) and;
(vi) Property taxes and operating or maintenance costs.
(4) Payments for employee's income taxes or FICA (social security
taxes) incident to reimbursed relocation costs.
(5) Costs incident to furnishing equity or nonequity loans to
employees or making arrangements with lenders for employees to obtain
lower-than-market rate mortgage loans.
(d) If relocation costs for an employee have been allowed and the
employee resigns within 12 months for reasons within the employee's
control, it is expected the contractor shall refund or credit the
relocation costs to the Government.
(e) Contractor payments to an independent relocation assistance firm
handling acquisitions and sales of houses of transferred employees are
allowable in amounts which otherwise represent payment for itemized cost
which are allowable in accordance with the provisions of this section.
(49 FR 12063, Mar. 28, 1984, as amended at 54 FR 27649, June 30,
1989)
48 CFR 970.3102-17 Travel costs.
(a)(1) Commercial air travel. It is the policy of the DOE to require
management and operating contractors to use the lowest commercial
airfare accommodations for all necessary travel under the contract,
except when such accommodations are not reasonably available. Airfare
costs in excess of the lesser of the lowest available commercial
discount airfare, Government contract airfare, or customary standard
(coach or equivalent) airfare, shall be disallowed except where the use
of such accommodations would: Require circuitous routing; require
travel during unreasonable hours; excessively prolong travel; result
in increased cost that would offset transportation savings; would offer
accommodations not reasonably adequate for the physical or medical needs
of the traveler; or are not reasonably available to meet necessary
mission requirements. The contractor shall be required to establish
appropriate airfare travel policies and procedures requiring the use of
the lowest available commercial airfare consistent with the foregoing
and prudent travel management. Where a contractor can reasonably
demonstrate to the Contracting Officer, or designee, the nonavailability
of discount airfare or Government contract airfare for a particular trip
or, on an overall basis, that it is the contractor's practice to make
routine use of such airfare, specific contractor determinations of
nonavailability should generally not be questioned, unless a pattern of
avoidance is detected. However, in order for airfare costs in excess of
the customary standard commercial airfare to be allowable; e.g., use of
first-class airfare, the contractor must be able to justify and document
on a case-by-case basis the applicable condition(s) set forth above.
(2) Air travel by other than commercial carrier. ''Cost of travel by
contractor-owned, -leased, or -chartered aircraft,'' as used in this
paragraph, includes the cost of lease, charter, operation (including
personnel costs), maintenance, depreciation, insurance and other related
costs. Costs of travel via contractor-owned, -leased, and -chartered
aircraft shall not exceed the cost of commercial air travel
accommodations, unless the management and operating contractor can
demonstrate that costs in excess of such amounts are necessary for
contract performance and that the increase in cost, if any, in
comparison with alternative means of transportation is commensurate with
the advantage gained.
(b) Government-owned or commercial rental vechicles. Commercial
rental automobile costs in excess of the cost of a Government-furnished
automobile or, when a Government-furnished automobile is not available,
the cost of a Government-contract rental automobile available under a
GSA Federal Supply Schedule contract, is unallowable unless:
(1) A Government-furnished or a Government contract rental automobile
is not reasonably available to the traveler, or
(2) The traveler's use and the cost of a commercial rental automobile
are justified and authorized as more advantageous to the Government.
(c) Lodging, meals and incidental expenses. (1) Costs for lodging,
meals, and incidental expenses incurred by management and operating
contractor personnel traveling on official business in the performance
of contract work are allowable costs but subject to the limitations set
forth in this subsection. Payments for lodging, meals, and incidental
expenses may be based on per diem, actual expenses, or a combination
thereof, provided the method used results in a reasonable cost to DOE.
(2) Except as provided in paragraph (c)(3) of this section,
management and operating contractor payments for lodging, meals, and
incidental expenses (as defined in the regulations cited in paragraphs
(c)(2) (i) through (iii) of this section) shall be considered to be
reasonable and allowable cost only to the extent that they do not
exceed, on a daily basis, the maximum per diem rates in effect at the
time of travel as set forth in the:
(i) Federal Travel Regulations, prescribed by the General Services
Administration, for travel in the conterminous 48 United States;
(ii) Joint Travel Regulations, Volume 2, DOD Civilian Personnel,
Appendix A. prescribed by the Department of Defense, for travel in
Alaska, Hawaii, the Commonwealth of Puerto Rico, and territories and
possessions of the United States; or
(iii) Standardized Regulations (Government Civilians, Foreign Areas),
section 925, ''Maximum Travel Per Diem Allowances for Foreign Areas,''
prescribed by the Department of State, for travel in areas not covered
in paragraphs (c)(2) (i) and (ii) of this section.
(3) In special or unusual situations, management and operating
contractor personnel may be paid for actual expenses in excess of the
above-referenced maximum per diem rates provided such payments do not
exceed the higher amounts authorized for Federal civilians employees as
permitted in the regulations referenced in paragraph (c)(2) (i), (ii) or
(iii) of this section and all of the following conditions are met:
(i) One of the conditions warranting approval of the actual expense
method, as set forth in the regulations referenced in paragraph
(c)(2)(i), (ii) or (iii) of this section exist.
(ii) A written justification for payment of the higher amounts is
approved by an officer or appropriate official of the management and
operating contractor's organization.
(iii) Documentation exists to support the payment of actual expenses
incurred and each employee expenditure in excess of $25.00 is supported
by a receipt. The approved justification required by paragraph
(c)(3)(ii) and, if applicable, DOE advance approvals required under
paragraph (c)(5) of this section must also be retained.
(4) Paragraphs (c)(2) and (c)(3) of this section do not incorporate
the regulations cited in paragraphs (c)(2) (i), (ii) and (iii) of this
section in their entirety. Only the coverage in the referenced
regulations dealing with special or unusual situations, the maximum per
diem rates and the definitions of lodging, meals and incidental expenses
are to be applied to management and operating contractors.
(5) An advance agreement with respect to compliance with paragraphs
(c)(2) and (c)(3) of this section will be established in the personnel
appendix of the contract. The management and operating contractor shall
also be required to obtain advance approval from DOE, if it becomes
necessary for the contractor to exercise the authority to make payments
based in the higher actual expense method repetitively or on a
continuing basis in a particular area. It is not intended that
individual contractor authorizations to pay actual expenses in excess of
applicable maximum per diem rates be approved in advance by DOE. Such
before the fact, case-by-case approvals should only be invoked when the
management and operating contractor does not have acceptable travel cost
policies, procedures or practices in effect.
(49 FR 12063, Mar. 28, 1984 and 51 FR 43926, Dec. 5, 1986, as amended
at 52 FR 1608, Jan. 14, 1987)
48 CFR 970.3102-18 Special funds in the construction industry.
Costs of special ''funds,'' financed by employer contributions, in
the construction industry for such purposes as methods and materials
research, public and industry relations, market development, disaster
relief, etc., are unallowable, execept as specifically authorized by the
contracting officer and provided for in the contract.
48 CFR 970.3102-19 Public relations and advertising.
(a) ''Public relations'' means all functions and activities dedicated
to:
(1) Maintaining, protection, and enhancing the image of a concern or
its products; or
(2) Maintaining or promoting reciprocal understanding and favorable
relations with the public at large, or any segment of the public. The
term ''public relations'' includes activities associated with areas such
as advertising, customer relations, community service, etc.
(b) ''Advertising'' means the use of media to promote the sale of
products or services and to accomplish the activities referred to in
paragraph (d) of this section regardless of the medium employed, when
the advertiser has control over the form and content of what will
appear, the media in which it will appear, and when it will appear.
Advertising media include but are not limited to conventions, exhibits,
free goods, samples, magazines, trade papers, direct mail, dealer cards,
window displays, outdoor advertising, radio, and television.
(c) Public relations and advertising costs include the costs of media
time and space, purchased services performed by outside organizations,
as well as the applicable portion of salaries, travel, and fringe
benefits of employees engaged in the functions and activities identified
in paragraphs (a) and (b) of this section.
(d) The only advertising costs that are allowable are those
specifically required by contract, approved in advance by the
Contracting Officer, or that arise from requirements of the contract and
that are exclusively for:
(1) Recruiting personnel required for contract performance;
(2) Acquiring scarce items for contract performance;
(3) Disposing of scrap or surplus materials acquired for contract
performance;
(4) The transfer of federally owned or originated technology to State
and local governments and to the private sector; or
(5) Obtaining supplies and services including contract-required
equipment, leases, banking services, etc.
Costs of this nature are allowable to the extent that they are
determined by the Contracting Officer to be reasonable, necessary, and
incident to contract performance.
(e) Allowable public relations costs include the following:
(1) Costs specifically required by contract, or approved in advance
by the Contracting Officer.
(2) Costs of --
(i) Responding to inquiries on company policies and activities.
(ii) Communicating with the public, press, stockholders creditors,
local communities, and customers, including responses to inquiries from
and initiation of press releases and other communications with the news
media.
(iii) Conducting general liaison with news media and government
public relations officers, to the extent that such activities are
limited to communication and liaison necessary to keep the public
informed on matters of public concern such as notice of contract awards,
plant closings or openings, employee layoffs or rehires, financial
information environmental impact of plant operations, etc.
(3) Costs of participation in community service activities (e.g.,
blood bank drives, charity drives, savings bond drives, disaster
assistance, outreach programs, etc.), exclusive of contractor cash
contributions and donations which are unallowable. The contractor's
cost of services or contractor-owned property provided to support
community service activities (e.g., the contractor's cost of making
payroll deductions for employee contributions to a charity, cost of
employee services provided to community organizations, or other similar,
nominal in-kind participation) is allowable.
(4) Costs of plant tours, visitors centers, and open houses (but see
paragraph (f)(5) of this section).
(f) Unallowable public relations and advertising costs include the
following activities except when the principal purpose of the activity
or event is to disseminate technical information or stimulate production
in accordance with contract requirements:
(1) All advertising costs other than those specified in paragraph (d)
of this section.
(2) Costs of air shows and other special events, such as conventions
and trade shows including:
(i) Costs of displays, demonstrations and exhibits;
(ii) Costs of meeting rooms, hospitality suites, and other special
facilities used in conjunction with shows and other special events; and
(iii) Salaries and wages of employees engaged in setting up and
displaying exhibits, making demonstrations, and providing briefings.
(3) Costs of sponsoring meetings, symposia, seminars, and other
special events.
(4) Costs of ceremonies such as corporate celebrations and new
product announcements.
(5) Costs of promotional material, motion pictures, videotapes,
brochures, handouts, magazines, and other media that are designed to
benefit the contractor's organization by calling favorable public
attention to contractor activities.
(g) Unallowable public relations and advertising costs include the
following:
(1) Costs of souvenirs, models, imprinted clothing, buttons, and
other mementos provided to customers or the public.
(2) Cost of memberships in civic and community organizations.
(3) All advertising and public relations costs, other than as
specified in paragraphs (d), (e) and (f) of this section, whose primary
purpose is to benefit the contractor's organization by promoting the
sale of products or services by stimulating interest in a product or
product line or by disseminating messages calling favorable attention to
the contractor for purposes of enhancing the company image to sell the
company's products or services unless such sales activities are required
under the management and operating contract to support the DOE mission.
Nothing in this paragraph (g)(3) modifies the express unallowability of
costs listed in paragraphs (f), (g)(1) and (g)(2) of this section. The
purpose of this paragraph is to provide criteria for determining whether
advertising and public relations costs not specifically identified
should be unallowable.
(52 FR 1608, Jan. 14, 1987)
48 CFR 970.3102-20 Defense of fraud proceedings.
(a) Definitions.
(1) ''Costs,'' as used in this section, include, but are not limited
to, administrative and clerical expenses; the cost of legal services,
whether performed by in-house or private counsel; the costs of the
services of accountants, consultants, or others retained by the
contractor to assist it; the salaries and wages of employees, officers,
and directors; and any of the foregoing costs incurred before
commencing the formal judicial or administrative proceedings which bear
a direct relationship to the proceedings.
(2) ''Fraud,'' as used in this section, means (i) acts of fraud or
corruption or attempts to defraud the Government or to corrupt its
agents, (ii) acts specified under 10 CFR 1035.5(a)(1) which constitute a
cause for debarment or suspension (see 10 CFR 1035.5 (a) and (b)) and
(iii) acts which violate the False Claims Act, 31 U.S.C. sections
3729-3731, or the Anti-Kickback Act, 41 U.S.C., sections 51 and 54.
(b) Costs incurred in connection with defense of any (1) criminal or
civil investigation, grand jury proceeding, or prosecution, (2) civil
litigation, or (3) administrative proceedings such as debarment or
suspension proceedings for acts specified under 10 CFR 1035.5(a)(1), or
any combination of the foregoing, brought by the Government against a
contractor, its agents or employees, are unallowable when the charges,
which are the subject of the investigation, proceedings, or prosecution,
involve fraud or similar offenses (including filing of a false
certification) on the part of the contractor, its agents or employees,
and result in conviction (including conviction entered on a plea of nolo
contendere), judgment against the contractor, its agents or employees,
or decision to debar or suspend, or are resolved by consent or
compromise.
(c) In circumstances where the charges of fraud are resolved by
consent or compromise, the parties may agree as to the extent of
allowability of such costs as a part of such resolution.
(d) Costs which may be unallowable under this section, including
directly associated costs, shall be differentiated and accounted for by
the contractor so as to be separately identifiable. During the pendency
of any proceeding or investigation covered by paragraph (b) of this
section, the Contracting Officer should generally withhold payment of
such costs. However, the Contracting Officer may, in appropriate
circumstances, provide for conditional payment upon provision of
adequate security, or other adequate assurance, and agreements by the
contractor to repay all unallowable costs, plus interest, if a
conviction or judgment is rendered against it.
(52 FR 1609, Jan. 14, 1987)
48 CFR 970.3102-21 Fines and penalties.
(a) It is DOE policy to reimburse nonprofit management and operating
contractors for fines and penalties that are incurred in the performance
of their contracts. Any such reimbursement for fines and penalties
incurred under the contract will be made as long as such fines and
penalties are not the result of the willful misconduct or lack of good
faith on the part of the contractor's officers, directors or supervising
representatives.
(b)(1) It is DOE policy not to reimburse profit making management and
operating contractors for fines and penalties that are incurred in the
performance of their contracts where such fines or penalties are
incurred as a result of contractor negligence or willful misconduct
where the breach of the contractor's legal duty giving rise to such a
fine or penalty involves an area of responsibility clearly placed on the
contractor.
(2) For purposes of this section the phrase ''fines and penalties''
means a sum of money the payment of which Federal or state law or
regulation exacts as punishment for or deterrence against doing some act
which is prohibited, or not doing some act which is required by law or
regulation. The assessment is imposed by statute or regulation as a
consequence of the commission of an offense or act of omission, and the
payment is intended as a punishment or deterrent. The fine or penalty
may be imposed in a civil enforcement action or result from a criminal
conviction. A fine or penalty shall not be construed as an assessment
which is imposed as damages on the basis of civil litigation or which is
imposed on the basis of strict liability, that is, without regard to the
fault or negligence of the party involved.
(3) In assessing any claim for payment by the contractor for a fine
or penalty as an allowable cost under the contract the Contracting
Officer shall, among other factors, consider the following:
(i) Whether the act which resulted in the fine or penalty was a
result of negligence, willful misconduct, or strict liability on the
part of personnel of the contractor or a subcontractor, at any tier or
level; and
(ii) All of the factors specified at 970.3102-22.
These are only some of the factors to be considered and do not
represent all factors which may be pertinent in each case. Criminal
fines and penalties which represent the judicial determination beyond a
reasonable doubt that the contractor acted wrongfully are generally not
considered to be an allowable cost and will not be considered by the
Contracting Officer for reimbursement except under extraordinary
circumstances. Any final decision to reimburse a criminal fine or
penalty shall be made by the Procurement Executive and shall only be
made with the concurrence of the General Counsel.
(c) It is DOE's policy not to reimburse any profit making contractor
for civil or criminal penalties assessed under the Price-Anderson
Amendments Act of 1988, Public Law 100-408, 42 U.S.C. 2273, 2282, and
for the costs of litigation relating to such assessments, except as may
be specifically provided in regulations implementing those civil and
criminal penalties provisions.
(56 FR 28104, June 19, 1991)
48 CFR 970.3102-22 Avoidable Costs for Profit Making Contractors.
In determining whether a cost is an ''Avoidable Cost'' for profit
making contractors as specified in 970.5204-13 (e)(12) and (e)(17)(iv),
970.5204-14 (e)(10) and (e)(15)(iv), 970.5204-21(j) and 970.5204-31, the
Contracting Officer, shall, among other factors, consider:
(a) Whether the contractor's conduct resulted from compliance with
written direction from the Contracting Officer.
(b) Whether the contractor's conduct occurred after specific
instances of noncompliance were reported by the contractor to the
Contracting Officer and necessary funding or authorization to correct
the conditions were unavailable.
(c) Whether the act or failure to act resulted from a violation of a
formal DOE regulation or order. The Contracting Officer will also
assess the completeness, efficiency and effectiveness of the
contractor's internal control systems and procedures (e.g., operational,
maintenance, security), as well as determine whether, in the case of
damage to, destruction of, or loss of Government property, the
contractor has faithfully implemented the DOE-approved property
management system, whether proper training and instruction were provided
to employees, whether all reasonable precautions were taken, whether
problems were promptly identified and reported to DOE and whether
adequate corrective actions were taken to preclude future occurrences.
(d) Whether the contractor voluntarily informed the Contracting
Officer in a timely good faith manner of the condition or activity which
later resulted in the incurrence of Avoidable Costs. The period of time
that the contractor was aware or should have been aware of the problem
prior to reporting it is also pertinent.
(e) Whether the contractor was newly selected to manage the facility
and whether it had sufficient time to discern the problem and report it
prior to the incurrence of Avoidable Costs.
These considerations will also be used to determine whether all or a
portion of the Avoidable Cost, which would otherwise be totally
nonreimbursable, may be reimbursed because of the presence of the
mitigating factors described above. This decision will be made by the
Contracting Officer.
(56 FR 28104, June 19, 1991)
48 CFR 970.3103 Contract clauses.
(a) The appropriate cost principles clause at 970.5204-13 or
970.5204-14 shall be included in a management and operating contract.
(b) The legislative lobbying cost prohibition clause at 970.5204-17
shall be included in all M&O contracts.
(49 FR 12090, Mar. 28, 1984. Correctly designated at 52 FR 1610, Jan.
14, 1987, and amended at 53 FR 21648, June 9, 1988)
48 CFR 970.3103 Subpart 970.32 -- Contract Financing
48 CFR 970.3201 General.
It is the policy of the DOE to finance management and operating
contracts through advance payments and use of Special Bank Accounts.
Appropriate procedures for properly managing and controlling funds for
obligation and expenditure under a management and operating contract are
maintained by the Office of Controller.
48 CFR 970.3202 Advance payments.
(a) The Head of the Contracting Activity, shall authorize advance
payments without interest; and approve the findings, determinations and
the contract terms and conditions concerning advance payments in
accordance with the procedures set forth in FAR Subpart 32.4, Advance
Payments, as amended by Subpart 932.4.
(b) Advance payments shall be made under a letter-of-credit
arrangement for deposit in a special bank account.
(c) Prior to providing any advance payments, the contracting officer
shall enter into an agreement with the contractor and a financial
institution, regarding a special bank account where the advanced funds
are to be deposited by the Government. Such agreement shall (1) provide
that DOE shall retain title to the unexpended balance of funds in the
special bank account including revenues if any, deposited by the
contractor; and that such title shall be superior to any claim or lien
of the bank of deposit and (2) incorporate as necessary or appropriate,
additional financial provisions required by Treasury or Departmental
financial regulations.
(d) Deviations from these specified requirements cited in paragraph
(c) above shall be considered a deviation requiring approval of the Head
of the Contracting Activity.
(e) Letter-of-Credit arrangements shall be prepared in accordance
with FAR 32.406, Letters of Credit, and shall be coordinated between the
procurement and finance organizations.
48 CFR 970.3270 Clauses.
The clauses at 970.5204-16 shall be included in management and
operating contracts when advances of funds are to be placed in a special
bank account. They may be appropriately modified to incorporate any
additional provisions that may be required by governing financial
regulations of the Treasury Department or the Department.
48 CFR 970.3271 Special bank account agreement.
Note: The following agreement shall be used with special bank
accounts in accordance with 970.3202(c).
Agreement entered into this ---- day of ------ , 19 -- , between the
United States of America (hereinafter called the Government) represented
herein by the Department of Energy (hereinafter called the ''DOE''), and
-------- (hereinafter called the ''Contractor,'' a corporation under the
laws of the State of -------- , and -------- , (hereinafter called the
''Bank,'') a banking corporation under the laws of -------- , located at
-------- .
(a) On the date of ------ , 19 -- , DOE and the Contractor entered
into Contract(s) No. -------- , or a supplemental agreement thereto,
providing for the making of advances of Government funds to the
contractor a copy of such advance provisions has been furnished to the
Bank.
(b) DOE requires that amounts advanced to the Contractor under said
contract or supplemental agreement be deposited in a Special Bank
Account or accounts with a bank designated by the Treasury Department as
depositary and financial agent of the Government (Section 10 of the Act
of June 11, 1942, 56 Stat. 356; 12 U.S.C. 265), separate from any of
the Contractor's general or other funds; and, the Bank being such a
bank, the parties are agreeable to so depositing said amounts with the
Bank.
(c) This Special Bank Account shall be designated '' -------- (Name
of Contractor), ------ (Contract Number), Department of Energy Special
Bank Account.''
In consideration of the foregoing, and for other good and valuable
considerations, it is agreed that,
(1) The Government shall have title to the credit balance in said
account to secure the return of all advances made to the contractor,
which title shall be superior to any lien or claim of the Bank or others
with respect to such account.
(2) The Bank will be bound by the provisions of said contract or
contracts relating to the deposit and withdrawal of funds in the above
Special Bank Account, but shall not be responsible for the application
of funds properly withdrawn from said account. After receipt by the
Bank of written directions from the Contracting Officer, or from the
duly authorized representative of the Contracting Officer, the Bank
shall act thereon and shall be under no liability to any party hereto
for any action taken in accordance with the said written directions.
(3) The Government, or its authorized representatives, shall have
access to the books and records maintained by the Bank with respect to
such Special Bank Account at all reasonable times and for all reasonable
purposes, including, without limitation, the inspection or copying of
such books and records and any and all memoranda, checks,
correspondence, or documents pertaining thereto. Except as agreed upon
by the Government and the Bank, all books and records pertaining to the
Special Bank Account in the possession of the Bank relating to the
Special Bank Account agreement shall be preserved by the Bank for a
period of three (3) years after final payment under the contract to
which the Special Bank Account agreement pertains or otherwise disposed
of in such manners as may be agreed upon by the Government and the Bank.
(4) In the event of the services of any writ of attachment, levy of
execution, or commencement of garnishment proceedings with respect to
the Special Bank Account, the Bank will promptly notify the Head of
Contracting Activity, DOE.
In witness whereof the parties hereto have caused this Agreement to
be executed, as of the day and year first above written.
(Signatures and Official Titles)
48 CFR 970.3271
48 CFR 970.3271 Subpart 970.36 -- Construction and A-E Contracts
48 CFR 970.3601 Special construction clause for operating contracts.
The clause in 970.5204-38 shall be used in management and operating
contracts when the contractor will not perform covered work with its own
forces but may procure construction by subcontract.
(49 FR 12063, Mar. 28, 1984. Redesignated at 53 FR 24231, June 27,
1988)
48 CFR 970.3601 Subpart 970.49 -- Termination of Contracts
48 CFR 970.4901 General.
All management and operating contracts, regardless of whether they
are for production, research and development, or services, shall contain
appropriate termination provisions.
(49 FR 12063, Mar. 28, 1984, as amended at 53 FR 24231, June 27,
1988)
48 CFR 970.4902 Termination clause.
The clause at 970.5204-45 shall be inserted into management and
operating contracts.
48 CFR 970.4902 Subpart 970.51 -- Use of Government Sources by Contractors
48 CFR 970.5101 Use of Government supply sources.
(a) Management and operating contractors should meet their
acquisition requirements from Government sources of supply, when these
sources are made available to them and if it is economically
advantageous or otherwise in the best interest of the Government.
(b) Contracting officers may authorize management and operating
contractors and their subcontractors with cost-reimbursement type
subcontracts, where all higher-tier subcontracts are cost-reimbursement
types, to acquire materials and services directly from such Government
sources of supply in accordance with the requirements of this subpart or
the consent of agencies involved.
(c) Materials, supplies, and equipment procured from Government
sources of supply under the procedures described herein must be used
exclusively in connection with management and operating contract work,
except as otherwise authorized by Heads of Contracting Activities.
(d) Many supply facilities and contracts of the Department of Defense
are made available to DOE and its management and operating contractors.
Accordingly:
(1) Requisitions or purchase orders shall be submitted directly to
these sources, unless otherwise specified. Field offices will be
notified by the Procurement Executive, or designee, when such contracts
and facilities are made available. Inquiries in connection with these
sources may be directed to the Procurement Executive.
(2) Contractor requisitions submitted to Defense Logistics Centers
should include the following statement. ''The consignee of the supplies
and materials requisitioned herein is acting in behalf of and as agent
for the Department of Energy with respect to the expenditure of
Government funds.'' Orders submitted directly to DOD contractors shall
be accompanied by an authorization substantially similar to that in FAR
51.103.
(e) Contracting officers, when reviewing the procurement systems and
methods of contractors that have been authorized to use Government
sources of supply, shall assure that provision is made for documenting
the justification of procurements from commercial sources of items
available from Government sources of supply.
(f) Direct procurement by DOE, rather than by a management and
operating contractor, shall be required where deemed necessary by the
Head of the Contracting Activity in order to carry out special
requirements of appropriation acts or other applicable laws relating to
particular items.
(g) The Procurement Executive shall be informed of instances in which
Government sources of supply are not used because of the quality of the
items available or when a Federal Supply Schedule contractor refuses to
honor an order.
(49 FR 12063, Mar. 28, 1984; 49 FR 38953, Oct. 2, 1984)
48 CFR 970.5102 Use of interagency motor pool vehicles and related
services.
The provisions of FAR subpart 51.2, FPMR 41 CFR 101-39, and DOE-PMR
41 CFR 109-39 apply.
48 CFR 970.5102 Subpart 970.52 -- Contract Clauses for Management and Operating Contracts
48 CFR 970.5201 General policy.
Many of the clauses set forth in subparts of FAR Part 52 and Part 952
of this chapter apply to management and operating contracts. The
clauses in this subpart are to be used in addition to or in place of the
FAR or the DEAR counterpart contract clauses where appropriate. Further
modifications and notes to certain FAR clauses are also prescribed, in
addition to those set forth in Part 952.
48 CFR 970.5202 Deviations.
Deviations from the standard contract clauses and modifications to
FAR clauses set forth herein, as well as from the standard contract
clauses prescribed in FAR Part 52 and Part 952 of this Chapter, shall be
made only in accordance with the deviation procedures of Subpart 901.4.
Minor changes in wording which may become necessary in the course of
negotiations are not considered deviations, provided Counsel determines
that the change is not prohibited by statue, executive order, or
administrative regulation and does not alter the meaning, intent, or
basic principles expressed in these clauses.
48 CFR 970.5203 Modifications and notes to FAR clauses.
48 CFR 970.5203-1 Covenant against contingent fees.
See FAR 52.203-5.
Note: Modify this clause by adding the following paragraph:
(c) Subcontracts and purchase orders. Unless otherwise authorized by
the Contracting Officer in writing, the contractor shall cause
provisions similar to the foregoing to be inserted in all subcontracts
and purchase orders entered into under this contract.
48 CFR 970.5203-2 Examination of records by Comptroller General.
See FAR 52.215-1.
Note: The following paragraph (e) should be included in management
and operating contracts when the clause at FAR 52.215-1 is required. It
may be omitted only with the approval of the Procurement Executive, upon
a specific determination, based on consultation with the Office of the
Controller and the Office of the General Counsel, that nothing in the
contract purports to preclude an audit by the General Accounting Office
of any transaction thereunder.
(e) Nothing in this contract shall be deemed to preclude an audit by
the General Accounting Office of any transaction under this contract.
48 CFR 970.5203-3 Buy American Act.
See FAR 52.225-3.
Note: Substitute ''use'' for ''deliver'' in paragraph (b).
(49 FR 12063, Mar. 28, 1984, as amended at 56 FR 41965, Aug. 26,
1991)
970.5204 Clauses to be used in addition to or in place of the
contract clauses set forth in FAR 52 and DEAR 952.
48 CFR 970.5204-1 Security.
Use the clauses at 952.204-2, Security and 952.204-70,
Classification.
48 CFR 970.5204-2 Safety and health (Government-owned or leased).
The contractor shall take all reasonable precautions in the
performance of the work under this contract to protect the safety and
health of employees and of members of the public and shall comply with
all applicable safety and health regulations and requirements (including
reporting requirements) of DOE. The contracting officer shall notify
the contractor, in writing, of any noncompliance with the provisions of
the clause and the corrective action to be taken. After receipt of such
notice, the contractor shall immediately take corrective action. The
contractor shall submit a management program and implementation plan to
the contracting officer for review and approval within 30 days after the
date of award of this contract. In the event that the contractor fails
to comply with said regulations or requirements of DOE, the contracting
officer may, without prejudice to any other legal or contractual rights
of DOE, issue an order stopping all or any part of the work;
thereafter, a start order for resumption of the work may be issued at
the discretion of the contracting officer. The contractor shall make no
claim for an extension of time or for compensation or damages by reason
of, or in connection with, such work stoppage.
48 CFR 970.5204-3 Buy American Act -- Construction materials.
Include the clause at FAR 52.225-5 when the contract contains
construction.
48 CFR 970.5204-4 New Mexico Gross Receipts and Compensating Tax.
See FAR 52.229-10.
Note. -- In small paragraph (b) of this clause, replace the phrase
''Allowable Cost and Payment clause'' with ''Allowable Costs and Fixed
Free Clause'' or, if it is different, the title of the clause addressing
allowable costs.
(55 FR 5462, Feb. 15, 1990)
48 CFR 970.5204-5 Disclosure of information.
Clause located at 952.204-72 use as prescribed at 970.0404-4.
48 CFR 970.5204-6 Nuclear hazards indemnity.
See 952.250-70.
48 CFR 970.5204-7 Nuclear hazards indemnity -- product liability.
See 952.250-71.
48 CFR 970.5204-8 Indemnity assurance to architect-engineer or supplier
prior to operation of a production or utilization facility.
See 952.250-72.
48 CFR 970.5204-9 Accounts, records, and inspection.
(a) Accounts. The contractor shall maintain a separate and distinct
set of accounts, records, documents, and other evidence showing and
supporting all allowable costs incurred, revenues or other applicable
credits, fixed-fee accruals, and the receipt, use, and disposition of
all Government property coming into the possession of the contractor
under this contract. The system of accounts employed by the contractor
shall be satisfactory to DOE and in accordance with generally accepted
accounting principles consistently applied.
Note: If the contract includes the clause for ''Price Reduction for
Defective Cost or Pricing Data'' set forth at FAR 52.215-22, paragraph
(a) above should be modified by adding the words ''or anticipated to be
incurred'' after the words ''allowable costs incurred.''
(b) Inspection and audit of accounts and records. All books of
account and records relating to this contract shall be subject to
inspection and audit by DOE at all reasonable times, before and during
the period of retention provided for in (d) below, and the contractor
shall afford DOE proper facilities for such inspection and audit.
(c) Audit of subcontractors' records. The contractor also agrees,
with respect to any subcontracts (including fixed-price or unit-price
subcontracts or purchase orders) where, under the terms of the
subcontract, costs incurred are a factor in determining the amount
payable to the subcontractor of any tier, to either conduct an audit of
the subcontractor's costs or arrange for such an audit to be performed
by the cognizant government audit agency through the contracting
officer.
(d) Disposition of records. Except as agreed upon by the Government
and the contractor, all financial and cost reports, books of account and
supporting documents, and other data evidencing costs allowable,
revenues, and other applicable credits under this contract, shall be the
property of the Government, and shall be delivered to the Government or
otherwise disposed of by the contractor either as the contracting
officer may from time to time direct during the progress of the work or,
in any event, as the contracting officer shall direct upon completion or
termination of this contract and final audit of accounts hereunder.
Except as provided in this contract, all other records in the possession
of the contractor relating to this contract shall be preserved by the
contractor for a period of three years after final payment under this
contract or otherwise disposed of in such manner as may be agreed upon
by the Government and the contractor.
(e) Reports. The contractor shall furnish such progress reports and
schedules, financial and cost reports, and other reports concerning the
work under this contract as the contracting officer may from time to
time require.
(f) Inspections. The DOE shall have the right to inspect the work
and activities of the contractor under this contract at such time in
such manner as it shall deem appropriate.
(g) Subcontracts. The contractor further agrees to require the
inclusion of provisions similar to those in paragraphs (a) through this
paragraph (g) of this clause in all subcontracts (including fixed-price
of unit-piece subcontracts or purchase orders) of any tier entered into
hereunder where, under the terms of the subcontract, costs incurred are
a factor in determining the amount payable to the subcontractor.
Note: If the prime contract contains a ''Defective Cost or Pricing
Data'' clause, this paragraph (g) shall be modified by adding the
following:
The contractor further agrees to include an audit clause, the
substance of which is the ''Audit'' clause set forth at FAR 52.215-22,
in each subcontract which does not include provisions similar to those
in paragraph (a) through this paragraph (g) of this clause, but which
contains a ''defective cost or pricing data'' clause.
(h) Internal audit. The contractor agrees to conduct an internal
audit and examination satisfactory to DOE of the records, operations,
expenses, and the transactions with respect to costs claimed to be
allowable under this contract annually and at such other times as may be
mutually agreed upon. The results of such audit, including the working
papers, shall be submitted or made available to the contracting officer.
Note: This paragraph (h) shall be included in (a) all cost-type
contracts (or subcontracts) involving an estimated cost exceeding $5
million and expected to run more than 2 years, and (b) any other
cost-type contract (or subcontract) where deemed advisable by the Head
of the Contracting Activity advisable by the Head of the Contracting
Activity and when the contactor (or subcontractor) already has an
established internal audit organization.
48 CFR 970.5204-10 Foreign ownership, control, or influence over
contractors (FOCI).
(a) Insert the clause at 952.204-73 in a solicitation for a
management and operating contract.
(b) Insert the clause at 952.204-74 in management and operating
contracts as prescribed at 970.0404-4.
(49 FR 12063, Mar. 28, 1984, as amended at 56 FR 41965, Aug. 26,
1991)
48 CFR 970.5204-11 Changes.
(a) Changes and adjustment of fee. The contracting officer may at
any time and without notice to the sureties, if any, issue written
directions within the general scope of this contract requiring
additional work or directing the omission of, or variation in, work
covered by this contract. If any such direction results in a material
change in the amount or character of the work described in the
''Statement of Work,'' an equitable adjustment of the fee, if any, shall
be made in accordance with the agreement of the parties and the contract
shall be modified in writing accordingly. Any claim by the contractor
for an adjustment under this clause must be asserted in writing within
30 days from the date of receipt by the contractor of the notification
of change; provided, however, that the contracting officer, if he
decides that the facts justify such action, may receive and act upon any
such claim asserted at any time prior to final payment under this
contract. A failure to agree on an equitable adjustment under this
clause shall be deemed to be a dispute within the meaning of the clause
entitled ''Disputes.''
(b) Work to continue. Nothing contained in this clause shall excuse
the contractor from proceeding with the prosecution of the work in
accordance with the requirements of any direction hereunder.
48 CFR 970.5204-12 Contractor's organization.
(a) Organization chart. As promptly as possible after the execution
of this Contract, the contractor shall furnish to the contracting
officer a chart showing the names, duties, and organization of key
personnel to be employed in connection with the work, and shall furnish
from time to time supplementary information reflecting changes therein.
(b) Supervisory representative of contractor. Unless otherwise
directed by the contracting officer, a competent full-time resident
supervisory representative of the contractor satisfactory to the
contracting officer shall be in charge of the work at the site at all
times. This also applies to off-site work.
(c) Control of employees. The contractor shall be responsible for
maintaining satisfactory standards of employee competency, conduct, and
integrity and shall be responsible for taking such disciplinary action
with respect to his employees as may be necessary. In the event the
contractor fails to remove any employee from the contract work whom DOE
deems incompetent, careless, or insubordinate, or whose continued
employment on the work is deemed by DOE to be contrary to the public
interest, the Government reserves the right to require the contractor to
remove the employee.
Note: In contracts identified in 970.2272, the following paragraph
shall be substituted for (c) above:
(c) The contractor shall be responsible for maintaining satisfactory
standards of employee competency, conduct, and integrity and shall be
responsible for taking such disciplinary action with respect to its
employees as may be necessary. The contractor shall establish such
standards and procedures as are necessary to implement effectively the
provisions set forth in 970.2272, and such standards and procedures
shall be subject to the approval of the contracting officer.
(49 FR 12063, Mar. 28, 1984; 49 FR 38953, Oct. 2, 1984, as amended
at 56 FR 41965, Aug. 26, 1991)
48 CFR 970.5204-13 Allowable costs and fixed-fee (Management and
Operating contracts).
(a) Compensation for contractor's services. Payment for the
allowable costs as hereinafter defined, and of the fixed-fee, if any, as
hereinafter provided, shall constitute full and complete compensation
for the performance of the work under this contract.
(b) Fixed-fee. The fixed-fee payable to the contractor for the
performance of the work under this contract is $ ------ . There shall
be no adjustment in the amount of the contractor's fixed-fee by reason
of differences between any estimate of cost for performance of the work
under this contract and the actual costs for performance of that work.
Note: This provision to this paragraph may be appropriately changed
to cover situations where the fee is for a period of time or different
fees are allowed for various phases of the work.
(c) Allowable costs. The allowable cost of performing the work under
this contract shall be the costs and expenses that are actually incurred
by the contractor in the performance of the contract work in accordance
with its terms, that are necessary or incident thereto, and are
determined to be allowable pursuant to this paragraph (c). The
determination of the allowability of cost hereunder shall be based on:
(1) Reasonableness, including the exercise of prudent business judgment;
(2) consistent application of generally accepted accounting principles
and practices that result in equitable charges to the contract work;
and (3) recognition of all exclusions and limitations set forth in this
clause or elsewhere in this contract as to types or amounts of items of
cost. Allowable costs shall not include the cost of any item described
as unallowable in paragraph (e) of this clause except as indicated
therein. Failure to mention an item of cost specifically in paragraph
(d) or paragraph (e) shall not imply either that it is allowable or that
it is unallowable.
(d) Items of allowable cost. Subject to the other provisions of this
clause, the following items of cost of work done under this contract
shall be allowable to the extent indicated:
(1) Bonds and insurance, including self-insurance, as provided in the
clause entitled ''Required Bonds and Insurance -- Exclusive of
Government Property.''
(2) Communication costs, including telephone services, local and
long-distance calls, telegrams, cablegrams, postage, and similar items.
(3) Consulting services (including legal and accounting), and related
expenses, as approved by the contracting officer, except as made
unallowable by paragraphs (e)(16) and (e)(26).
(4) Litigation expenses, including reasonable Counsel fees, incurred
in accordance with the clause of this contract entitled ''Litigation and
Claims.''
(5) Losses and expenses (including settlements made with the consent
of the contracting officer) sustained by the contractor in the
performance of this contract and certified in writing by the contracting
officer to be reasonable, except the losses and expenses expressly made
unallowable under other provisions of this contract.
(6) Materials, supplies, and equipment, including freight
transportation, material handling, inspection, storage, salvage, and
other usual expenses incident to the procurement, use and disposition
thereof, subject to approvals required under other provisions of this
contract.
(7) Patents, purchased design, and royalty payments to the extent
expressly provided for under other provisions in this contract or as
approved by the contracting officer, and preparation of invention
disclosures, reports and related documents, and searching the art to the
extent necessary to make such invention disclosures in accordance with
any ''Patent Rights'' clause of this contract.
(8) Personnel costs and related expenses incurred in accordance with
the personnel appendix which is hereby incorporated by reference and
made a part of this contract. It is specifically understood and agreed
that said personnel appendix sets forth in detail personnel costs and
related expenses to be allowable under this contract and is intended to
document those personnel policies, practices and plans which have been
found acceptable by the contracting officer. It is further understood
and agreed that the contractor will advise DOE of any proposed changes
in any matters covered by said policies, practices or plans which relate
to this item of cost, and that the personnel appendix may be modified
from time to time in writing by mutual agreement of the contractor and
DOE without execution of an amendment to this contract for the purpose
of effectuating any such changes in, or additions to, said personnel
appendix as may be agreed upon by the parties. Such modifications shall
be evidenced by execution of written numbered approval letters from the
contracting officer or his representative. Types of personnel costs and
related expenses to be incorporated into the personnel appendix, or
amendments thereto, are as follows:
(i) Salaries and wages; bonuses and incentive compensation;
overtime, shift differential, holiday, and other premium pay for time
worked; nonwork time, including vacations, holidays, sick, funeral,
military, jury, witness, and voting leave; salaries and wages to
employees in their capacity as union stewards and committeemen for time
spent in handling grievances, or serving on labor management
(contractor) committees, provided, however, that the contracting
officer's approval is required in each instance of total compensation to
an individual employee at an annual rate of $ ------ (see 970.3102-2) or
more, when it is proposed that a total of 50 percent or more of such
compensation be reimbursed under DOE cost-type contracts. Total
compensation, as used here, includes only the employee's base salary,
bonus, and incentive compensation payments;
(ii) Legally required contributions to old-age and survivors'
insurance, unemployment compensation plans, and workers compensation
plans, (whether or not covered by insurance); voluntary or agree-upon
plans providing benefits for retirement, separation, life insurance,
hospitalization, medical-surgical and unemployment (whether or not such
plans are covered by insurance);
(iii) Travel (except foreign travel, which requires specific approval
by the contracting officer on a case-by-case basis); incidental
subsistence and other allowances of contractor employees, in connection
with performance of work under this contract (including new employees
reporting for work and transfer of employees, the transfer of their
household goods and effects and the travel and subsistence of their
dependents);
(iv) Employee relations, welfare, morale, etc.; programs including
incentive or suggestion awards; employee counseling services, health or
first-aid clinics; house or employee publications;
(v) Personnel training (except special education and training courses
and research assignments calling for attendance at educational
institutions which require specific approval by the Contracting Officer
on a case-by-case basis); including apprenticeship training programs
designed to improve efficiency and productivity of contract operations,
to develop needed skills, and to develop scientific and technical
personnel in specialized fields required in the contract work;
(vi) Recruitment of personnel (including help-wanted advertisement),
including service of employment agencies at rates not in excess of
standard commercial rates, employment office, travel of prospective
employees at the request of the contractor for employment interviews;
and
(vii) Net cost of operating plant-site cafeteria, dining rooms, and
canteens attributable to the performance of the contract.
Note: In appropriate circumstances, the lead sentence in
subparagraph (d)(8) may be changed to read as follows:
''Personnel costs and related expenses incurred in accordance with
established policies, programs, and schedules, and any changes thereto
during the contract term, applicable to the contractor's private
operations and consistently followed throughout his organization, as
approved by the contracting officer, such as''.
(9) Repairs, maintenance, inspection, replacement, and disposal of
Government-owned property and the restoration or clean-up of site and
facilities to the extent directed or approved by the contracting
officer.
(10) Subcontracts and purchase orders, including procurements from
contractor-controlled sources, subject to approvals required by other
provisions of this contract.
(11) Subscriptions to trade, business, technical, and professional
periodicals, as approved by the contracting officer.
(12) Taxes, fees, and charges levied by public agencies which the
contractor is required by law to pay, except those which are expressly
made unallowable under other provisions of this contract.
(13) Utility services, including electricity, gas, water, and
sewerage.
(14) Indemnification of the Pension Benefit Guaranty Corporation,
pursuant to the Employee Retirement Income Security Act of 1974, in
accordance with FAR 31.205-6(j)(3)(iv).
(15) Establishment and maintenance of bank accounts in connection
with the work hereunder, including, but not limited to, service charges,
the cost of disbursing cash, necessary guards, cashiers, and paymasters.
If payments are made by check, facilities and arrangements for cashing
checks may be provided without expense to the employees, subject to the
approval of the contracting officer.
Note: The following additional examples apply when the contractor
performs construction.
(16) Camp operations, to the extent approved by the contracting
officer.
(17) Maintenance, inspection, repair, replacement, and transportation
of construction plant and equipment to the extent not covered by rentals
or insurance and as provided in rental agreements approved by the
contracting officer.
(18) Rental for (i) construction plant and equipment rented by the
contractor from others at rates and under written agreements approved by
the contracting officer, and (ii) construction plant and equipment owned
and furnished by the contractor under this contract.
(e) Items of unallowable costs. The following items of costs are
unallowable under this contract to the extent indicated:
(1) Advertising and public relations costs designed to promote the
contractor or its products, including the costs of promotional items and
memorabilia such as models, gifts and souvenirs, and the cost of
memberships in civic and community organizations; except those
advertising and public relations costs
(i) Specifically required by the contract,
(ii) Approved in advance by the Contracting Officer as clearly in
furtherance of work performed under the contract,
(iii) That arise from requirements of the contract and that are
exclusively for recruiting personnel, acquiring scarce items for
contract performance, disposing of scrap or surplus materials, the
transfer of federally owned or orginated technology to State and local
governments and to the private sector, or acquisition of
contract-required supplies and services, or
(iv) Where the primary purpose of the activity is to facilitate
contract performance in support of the DOE mission.
(2) Bad debts (including expenses of collection) and provisions for
bad debts arising out of other business of the contractor.
(3) Proposal expenses and costs of proposals.
(4) Bonuses and similar compensation under any other name, which (i)
are not pursuant to an agreement between the contractor and employee
prior to the rendering of the services or an established plan
consistently followed by the contract or (ii) are in excess of those
costs which are allowable by the Internal Revenue Code and regulations
thereunder, or (iii) provide total compensation to an employee in excess
of reasonable compensation for the services rendered.
(5) Central and branch office expenses of the contractor, except as
specifically set forth in the contract.
(6) Commissions, bonuses, and fees (under whatever name) in
connection with obtaining or negotiating for a Government contract or a
modification thereto, except when paid to bona fide employees or bona
fide established selling organizations maintained by the contractor for
the purpose of obtaining Government business.
(7) Contingency reserves, provisions for.
(8) Contributions and donations, including cash, contractor-owned
property and services, regardless of the recipient.
(9) Depreciation in excess of that calculated by application of
methods approved for use by the Internal Revenue Code of 1954, as
amended, including the straight-line declining balance (using a rate not
exceeding twice the rate which would have been used had the depreciation
been computed under the straight line method), or sum-of-the-years
digits method, on the basis of expected useful life, to the cost of
acquisition of the related fixed assets less estimated salvage or
residual value at the end of the expected useful life.
(10) Dividend provisions or payments and, in the case of sole
proprietors and partners, distributions of profit.
(11) Entertainment, including costs of amusement, diversion, social
activities; and directly associated costs such as tickets to shows or
sports events, meals, lodging, rentals, transportation, and gratuities;
costs of membership in any social, dining or country club or
organization, except the costs of such recreational activities for
on-site employees as may be approved by the Contracting Officer or
provided for elsewhere in the contract.
(12) Fines and penalties.
Note 1: In contracts with nonprofit contractors, use the following
clause:
Fines and penalties, including assessed interest, resulting from
violations of, or failure of the contractor to comply with, Federal,
state, local or foreign laws and regulations, except when incurred as a
result of compliance with the scope of work, specific terms and
conditions, or other provisions of the contract or written instructions
from the contracting officer authorizing in advance such payments.
Civil or criminal penalties assessed under the Price-Anderson Amendments
Act of 1988, 42 U.S.C. 2273, 2282, and the costs of litigation resulting
from such assessments, are unallowable except as may be specifically
provided in regulations implementing those civil and criminal penalty
provisions.
Note 2: In contracts with profit making contractors, use the
following clause:
Fines and penalties, including assessed interest and cost of
litigation, that are incurred as a result of contractor and/or
subcontractor negligence or willful misconduct where the breach of the
legal duty of the contractor and or its subcontractor giving rise to
such fine or penalty involves an area of responsibility clearly placed
on the contractor and/or the subcontractor. Civil or criminal penalties
assessed under the Price-Anderson Amendments Act of 1988, 42 U.S.C.
2273, 2282, and the costs of litigation resulting from such assessments
are also unallowable except as may be specifically provided in
regulations implementing those civil or criminal penalty provisions.
(13) Government-furnished property, except to the extent that cash
payment therefor is required pursuant to procedures of DOE applicable to
transfers of such property to the contractor from others.
(14) Insurance (including any provisions of a self-insurance reserve)
on any person where the contractor under the insurance policy is the
beneficiary, directly or indirectly, and insurance against loss of or
damage to Government property as defined in Clause -------- .
(15) Interest, however represented (except (i) Interest incurred in
compliance with the contract clause entitled ''State and local Taxes''
or, (ii) imputed interest costs relating to leases classified and
accounted for as capital leases under generally accepted accounting
principles (GAAP), provided that the decision to enter into a capital
leasing arrangement has been specifically authorized and approved by the
DOE in accordance with applicable procedures and such interest costs are
recorded in an appropriately specified DOE account established for such
purpose), bond discounts and expenses, and costs of financing and
refinancing operations.
(16) Legal, accounting, and consulting services and related costs
incurred in connection with the preparation and issuance of stock,
rights, organization or reorganization, prosecution or defense of
antitrust suits, prosecution of claims against the United States,
contesting actions of proposed actions of the United States, and
prosecution or defense of patent infringement litigation (except where
incurred pursuant to the contractor's performance of the
Government-funded technology transfer mission and in accordance with the
Litigation and Claims article).
(17) Losses (including litigation expenses, Counsel fees, and
settlements) on, or arising from the sale, exchange, or abandonment of
capital assets, including investments; losses on other contracts,
including the contractor's contributed portion under cost-sharing
contracts; losses in connection with price reductions to and discount
purchases by employees and others from any source; and losses where
such losses or expenses:
(i) Are compensated for by insurance or otherwise or which would have
been compensated by insurance required by law or by written direction of
the contracting officer but which the contractor failed to procure or
maintain through its own fault or negligence;
(ii) Result from willful misconduct or lack of good faith on the part
of any of the contractor's directors, corporate officers, or a
supervising representative of the contractor, as defined in Clause
------ of this contract.
(iii) Represent liabilities to third persons for which the contractor
has expressly accepted responsibility under other terms of this
contract.
(iv) Note: In contracts with profit making contractors, add the
following paragraph:
or, are direct costs which are avoidable that are incurred by the
contractor and/or subcontractor, at any tier or level, without any fault
of DOE, exclusively as a result of the negligence or willful misconduct
on the part of any of the contractor's and/or its subcontractor's
personnel, at any tier or level, in performing work under the contract.
(A) Such direct costs may include, for example, additional
programmatic expenses for research and development or production
activities, and third party claims against the contractor, but shall not
include scrap, waste and other routine damages or losses which occur as
part of the cost of doing business and are reasonably anticipated and
shall not include consequential damages.
(B) Costs of litigation incurred by the contractor or subcontractor
in bringing or defending claims relating to these costs are also
unallowable.
(18) Maintenance, depreciation, and other costs incidental to the
contractor's idle or excess facilities (including machinery and
equipment), other than reasonable standby facilities.
Note: May be omitted when no contractor-owned equipment is being
utilized in the performance of the contract.
(19) Membership in trade, business, and professional organizations,
except as approved by the contracting officer.
(20) Precontract costs, except as expressly made allowable under
other provisions in this contract.
(21) Research and development costs, unless specifically provided for
elsewhere in this contract.
(22) Selling cost, except to the extent they are determined to be
reasonable and to be allocable to the contract. Allocability of selling
costs to the contract will be determined in the light of reasonable
benefit to the agency program arising from such activities as technical,
consulting, demonstration, and other services performed for such
purposes as applying or adapting the contractor's product for agency
use.
(23) Storage of records pertaining to this contract after completion
of operations under this contract, irrespective of contractual or
statutory requirement for the preservation of records.
(24) Taxes, fees, and charges in connection with financing,
refinancing, or refunding operations, including listing of securities on
exchanges, taxes which are paid contrary to the clause entitled ''State
and local taxes,'' federal taxes on net income and exess profits,
special assessments on land which represent capital improvement and
taxes on accumulated funding deficiencies of, or prohibited transactions
involving, employee deferred compensation plans pursuant to section 4971
or section 4975 of the Internal Revenue Code of 1954, as amended,
respectively.
(25) Travel expenses of the officers, proprietors, executives,
administrative heads and other employees of the contractor's central
office or branch office organizations concerned with the general
management, supervision, and conduct of the contractor's business as a
whole, except to the extent that particular travel is in connection with
the contract and approved by the contracting officer.
(26) Salary or other compensation (and expenses related thereto) of
any individual employed under this contract as a consultant or in
another comparable employment capacity who is an employee of another
organizational and concurrently performing work on a full-time annual
basis for that organization under a cost-type contract with DOE, except
to the extent that cash payment therefor is required pursuant to the
provisions of this contract or procedure of DOE applicable to the
borrowing of such an individual from another cost-type contractor.
(27) Travel by commercial aircraft or travel by other than common
carrier that is not necessary for the performance of this contract or
the cost of which exceeds the lesser of the lowest available commercial
discount airfare, Government contract airfare, or customary standard
(coach or equivalent) commercial airfare. Airfare costs in excess of
the lowest such airfare are unallowable, except when such
accommodations: Require circuitous routing; require travel during
unreasonable hours; excessively prolong travel; result in increased
cost that would offset transportation savings; would offer
accommodations not reasonably adequate for the physical or medical needs
of the traveler; or are not reasonably available to meet necessary
mission requirements. Individual contractor determinations of
nonavailability of commercial discount airfare or Government contract
airfare will not be contested by DOE when the contractor can reasonably
demonstrate such nonavailability or, on an overall basis, that
established policies and procedures result in the routine use of the
lowest available airfare. However, in order for air travel costs in
excess of customary standard airfare to be allowable, the contractor
must justify and document the applicable condition(s) set forth above.
(28) Special construction industry ''funds'' financed by employer
contributions for such purposes as methods and materials research,
public and industry relations, market development, and disaster relief,
except as specifically provided elsewhere in this contract.
(29) Late premium payment charges related to employee deferred
compensation plan insurance.
(30) Facilities capital cost of money. (CAS 414 and CAS 417).
(31) Cost incurred to influence (directly or indirectly) legislative
action on any matter pending before Congress or a State legislature as
delineated in the clause titled ''Legislative Lobbying Cost
Prohibition'' incorporated elsewhere in this contract.
(32) Commercial automobile rental expenses unless approved by the
Contracting Officer.
(33) Costs incurred in defense of any civil or criminal fraud
proceeding or similar proceeding (including filing of any false
certification) brought by the Government where the contractor, its
agents or employees, is found liable or has pleaded nolo contendere to a
charge of fraud or similar proceeding (including filing of a false
certification).
(34) Costs of alcoholic beverages.
(35) Contractor employee travel costs incurred for lodging, meals and
incidental expenses which exceed on a daily basis the applicable maximum
per diem rates in effect for Federal civilian employees at the time of
travel. When the applicable maximum per diem rate is inadequate due to
special or unusual situations, the contractor may pay employees for
actual expenses in excess of such per diem rate limitation. To be
allowable, however, such payments must be properly authorized by an
officer or appropriate official of the contractor and shall not exceed
the higher amounts that may be authorized for Federal civilian employees
in a similar situation.
(36) Note: In contracts with profit making contractors, add the
following clauses:
(i) Notwithstanding any other provision of this contract, the costs
of bonds and insurance are unallowable to the extent they are incurred
to protect and indemnify the contractor and/or subcontractor against
otherwise unallowable Avoidable Costs, such as fines and penalties,
third party claims, negligently or willfully caused damage to,
destruction of, or loss of Government property and theft or unauthorized
use of government property, except and only to the extent that such
insurance or bond is required by the specific written direction of the
Contracting Officer.
(ii)(A) The unallowable costs provisions of subparagraph (e)(17)(iv)
dealing with avoidable costs and subparagraph (i) of this clause, the
profit making provision of the clause set forth at 970.5204-13(e)(12),
the clause set forth at 970.5204-21(j), and the profit making provision
of the clause set forth at 970.5204-31 are not applicable to Small
Businesses and Small Disadvantaged Businesses as defined in the clause
of this contract entitled ''Utilization of Small Business Concerns and
Small Disadvantaged Business Concerns.'' All costs resulting from the
actions or inactions of Small Businesses and Small Disadvantaged
Businesses which would otherwise be determined to be Avoidable Costs are
allowable costs to the contractor.
(B) The above cited provisions in subparagraph (ii)(A) are also not
applicable to Non-profit subcontractors of profit-making contractors and
profit making subcontractors of non-profit contractors. All costs
resulting from the actions or inactions of non-profit subcontractors
which would otherwise be determined to be Avoidable Costs are allowable
costs to the contractor.
(49 FR 12063, Mar. 28, 1984; 49 FR 38953, Oct. 2, 1984, as amended
at 51 FR 43926, Dec. 5, 1986; 52 FR 1610, Jan. 14, 1987; 52 FR 38426,
Oct. 16, 1987; 53 FR 21648, June 9, 1988; 54 FR 27649, June 30, 1989;
55 FR 41540, Oct. 12, 1990; 56 FR 28104, June 19, 1991; 56 FR 41966,
Aug. 26, 1991)
48 CFR 970.5204-14 Allowable costs and fixed-fee (support contracts).
(a) Compensation for contractor's services. Payment for the
allowable cost as hereinafter defined, and of the fixed-fee, if any, as
hereinafter provided, shall constitute full and complete compensation
for the performance of the work under this contract.
(b) Fixed-fee. The fixed-fee payable to the contractor for the
performance of the work under this contract is $ . There shall be no
adjustment in the amount of the contractor's fixed-fee by reason of
differences between any estimate of cost for perfomance of the work
under this contract and the actual cost for performance of that work.
Note: This provision to this paragraph may appropriately be changed
to cover situations where the fee is for a period of time, or different
fees are allowed for various phases of the work.
(c) Allowable cost. The allowable costs for performing the work
under this contract shall be the costs and expenses that are actually
incurred by the contractor, are applicable and properly chargeable,
either as directly incident or as allocable through appropriate
distribution or apportionment, to the performance of the contract work
in accordance with its terms, and are determined to be allowable
pursuant to this paragraph (c). The determination of the allowability
of cost hereunder shall be based on (1) reasonableness, including the
exercise of prudent business judgment, (2) consistent application of
generally accepted accounting principles and practices that result in
equitable charges to the contract work, and (3) recognition of all
exclusions and limitations set forth in this clause or elsewhere in this
contract as to types or amounts of items of costs. Allowable cost shall
not include costs of any item described as unallowable in paragraph (e)
of this clause, except as indicated therein. Failure to mention an item
of cost specifically in paragraph (d) or paragraph (e) shall not imply
either that it is allowable or that it is unallowable.
(d) Items of allowable cost. Subject to the other provisions of this
clause, the following items of cost of work under this contract shall be
allowable to the extent indicated:
(1) Bonds and insurance (including self-insurance) as provided in the
clause entitled ''Required bonds and insurance -- exclusive of
Government property.''
(2) Communication costs, including telephone services, local and
long-distance telephone calls, telegrams, cablegrams, radiograms,
postage, and similar items.
(3) Consulting services (including legal and accounting) and related
expenses, as approved by the contracting officer, except as made
unallowable by paragraph (e)(14) and (e)(23).
(4) Litigation expenses, including reasonable Counsel fees, incurred
in accordance with the clause of this contract entitled ''Litigation and
Claims.''
(5) Losses and expenses (including settlements made with the consent
of the contracting officer) sustained by the contractor in performance
of this contract and certified in writing by the Contracting Officer to
be just and reasonable, except the losses and expenses expressly made
unallowable under other provisions of this contract.
(6) Materials and supplies (including those withdrawn from common
stores costed in accordance with any generally recognized method that is
consistently applied by the contractor and productive of equitable
results).
(7) Patents, purchased design, and royalty payments to the extent
expressly provided for under other provisions in this contract or as
approved by the contracting officer; and preparation of invention
disclosures, reports, and related documents, and searching the art to
the extent necessary to make such invention disclosures in accordance
with the Patent Rights clause of this contract.
(8) Personnel costs and related expenses incurred in accordance with
the personnel appendix which is hereby incorporated by reference and
made a part of this contract. It is specifically understood and agreed
that said personnel appendix sets forth, in detail, personnel costs and
related expenses to be allowable under this contract and is intended to
document those personnel policies, practices and plans which have been
found acceptable by the contracting officer. It is further understood
and agreed that the contractor will advise DOE of any proposed changes
in any matters covered by said policies, practices, or plans which
relate to this item of costs, and that the personnel appendix may be
modified from time to time in writing by mutual agreement of the
contractor and DOE without execution of an amendment to this contract
for the purpose of effectuating and such changes in, or additions to,
said personnel appendix, as may be agreed upon by the parties. Such
modifications shall be evidenced by execution of written numbered
approval letters from the contracting officer or his representative.
Examples of personnel costs and related expenses to be incorporated into
the personnel appendix, or amendments thereto, are as follows:
(i) Salaries and wages; bonuses and incentive compensation;
overtime, shift differential, holiday, and other premium pay for time
worked; nonwork time including vacations, holidays, sick, funeral,
military, jury, witness, and voting leave; salaries and wages to
employees in their capacity as union stewards and committeemen for time
spent in handling grievances, or serving on labor management
(contractor) committees, provided, however, that the contracting
officer's approval is required in each instance of total compensation to
an individual employee at an annual rate of $ -------- (See 970.3102-2)
or more, when it is proposed that a total of 50 percent or more of such
compensation be reimbursed under DOE cost-type contracts. Total
compensation, as used here, includes only the employee's base salary and
bonus and incentive compensation payments.
(ii) Legally required contributions to old-age and survivor's
insurance, unemployment, compensation plans, and workmen's compensation
plans (whether or not covered by insurance); voluntary or agreed-upon
plans providing benefits for retirement, separation, life insurance,
hospitalization, medical-surgical and unemployment (whether or not such
plans are covered by insurance);
(iii) Travel (except foreign-travel, which requires specific approval
by the contracting officer on a case-by-case basis); incidental
subsistence and other allowances of contractor employees, in connection
with performance of work under this contract (including new employees
reporting for work and transfer of employees, the transfer of their
household goods and effects, and the travel and subsistence of their
dependents);
(iv) Employee relations, welfare, morale, etc., programs, including
incentive or suggestion awards, employee counseling services, health or
first-aid clinics, and house or employee publications;
(v) Personnel training (except special education and training courses
and research assignments calling for attendance at educational
institutions which require specific approval by the contracting officer
on a case-by-case basis) including services of employment agencies at
rates not in excess of standard commercial rates, employment office,
travel of prospective employees at the request of the contractor for
employment interviews; and
(vi) Recruitment of personnel (including help-wanted advertisement)
including services of employment agencies at rates not in excess of
standard commercial rates, employment office, travel of prospective
employees at the request of the contractor for employment interviews;
and
(vii) Net cost of operating plant-site cafeterias, dining rooms, and
canteens attributable to the performance of the contract.
Note: In appropriate circumstances that lead sentence in
subparagraph (d)(8) may be changed to read as follows:
Personnel costs and related expenses incurred in accordance with
established policies, programs, and schedules, and any changes thereto
during the contract term, applicable to the contractor's private
operations and consistently followed throughout its organization, as
approved by the contracting officer, such as:
(9) Rentals and leases of land, buildings, and equipment owned by
third parties where such items are used in the performance of the
contract, except that such rentals and leases directly chargeable to the
contract shall be subject to approval by the contracting officer.
(10) Repairs, maintenance, inspection, replacement, and disposal of
Government-owned property to the extent directed or approved by the
contracting officer.
(11) Repairs, maintenance, and inspection of contractor owned
property used in connection with the performance of this contract,
including reasonable standby facilities, which are due to ordinary wear
and tear from use and the action of the elements, provided such
maintenance and repairs keep the property in efficient operating
condition and do not add to its permanent value or appreciably prolong
its intended useful life; and major repair (including replacement) to
such property, as directed or approved by the contracting officer when
charged directly to the contract.
(12) Special tooling, including jigs, dies, fixtures, molds,
patterns, designs and drawings, tools, and equipment of a specialized
nature generally useful to the contractor only in the performance of
this contract.
Note: Itemize any additional special equipment which may be
appropriate, such as loops, mockups, experimental setups, etc.
(13) Subcontracts, purchase orders, and procurement from
contractor-controlled sources, subject to approvals required by other
provisions of this contract.
(14) Subscriptions to trade, business, technical, and professional
periodicals, as approved by the Contracting Officer when charged
directly to the contract.
(15) Taxes, fees, and charges levied by public agencies which the
contractor is required by law to pay, except those which are expressly
made unallowable under other provisions of this contract.
(16) Utility services, including electricity, gas, water, steam, and
sewerage.
(17) Indemnification of the Pension Benefit Guaranty Corporation
pursuant to the Employee Retirement Income Security Act of 1974, in
accordance with FAR 31.205-6(j).
(e) Items of unallowable costs. The following examples of items of
costs are unallowable under this contract to the extent indicated:
(1) Advertising and public relations costs designed to promote the
contractor or its products, including the costs of promotional items and
memorabilia such as models, gifts and souvenirs, and the cost of
memberships in civic and community organizations; except those
advertising and public relations costs (i) specifically required by the
contract, (ii) approved in advance by the Contracting Officer as clearly
in furtherance of work performed under the contract, (iii) that arise
from requirements of the contract and that are exclusively for
recruiting personnel, acquiring scarce items for contract performance
disposing of scrap or surplus materials, the transfer of federally owned
or originated technology to State and local governments and to the
private sector, or acquisition of contract-required supplies and
services, publicizing community involvement, or (iv) where the primary
purpose of the activity is to facilitate contract performance in support
of the DOE mission.
(2) Bad debts (including expenses of collection) and provisions for
bad debts not arising out of the performance of this contract.
(3) Bonuses and similar compensation under any other name, which (i)
are not pursuant to an agreement between the contractor and employee
prior to the rendering of the services or an established plan
consistently followed by the contractor (ii) are in excess of those
costs which are allowable by the Internal Revenue Code and regulations
thereunder, or (iii) provide total compensation to an employee in excess
of reasonable compensation for the services rendered.
(4) Commissions, bonuses, and fees (under whatever name) in
connection with obtaining or negotiating for a Government contract or a
modification thereto, except when paid to bona fide employees or bona
fide established selling organizations maintained by the contractor for
the purpose of obtaining Government business.
(5) Contingency reserves, provisions for (except provisions for
reserves under a self-insurance program to the extent that the type,
coverage, rates, and premiums would be allowable if commercial insurance
were purchased to cover the same risk, as approved by the contracting
officer).
(6) Contributions and donations, including cash, contractor-owned
property and services, regardless of the recipient.
(7) Depreciation in excess of that calculated by application of
methods approved for use by the Internal Revenue Service under the
Internal Revenue Code of 1954, as amended, including the straight-line
declining balance (using a rate not exceeding twice the rate which would
have been used had the depreciation been computed under the
straight-line method) or sum-of-the-years digits method, on the basis of
expected useful life, to the cost of acquisition of the related fixed
assets less estimated salvage or residual value at the end of the
expected useful life. Amortization or depreciation of unrealized
appreciation of values of assets or of assests fully amortized or
depreciated on the contractors books of account is unallowable.
(8) Dividend provisions or payments and, in the case of sole
proprietors and partners, distributions of profits.
(9) Entertainment, including costs of amusement, diversion, social
activities; any directly associated costs such as tickets to shows or
sports events, meals, lodging, rentals, transportation, and gratuities;
costs of membership in any social, dining or country club or
organization, except the costs of such recreational activities for
on-site employees as may be approved by the Contracting Officer or
provided for elsewhere in the contract.
(10) Fines and penalties.
Note 1: In contracts with non-profit contractors, use the following
clauses:
Fines and penalties, including assessed interest, resulting from
violations of, or failure of the contractor to comply with Federal,
state, local or foreign laws and regulations, except when incurred as a
result of compliance with the scope of work, specific terms and
conditions, or other provisions of the contract or written instructions
from the contracting officer authorizing in advance such payments.
Civil or criminal penalties assessed under the Price-Anderson Amendments
Act of 1988, 42 U.S.C. 2273, 2282, and the costs of litigation resulting
from such assessments, are also unallowable except as may be
specifically provided in regulations implementing those civil and
criminal penalty provisions.
Note 2: In contracts with profit making contractors, use the
following clause:
Fines and penalties, including assessed interest and costs of
litigation, that are incurred as a result of contractor and/or
subcontractor negligence or willful misconduct where the breach of the
legal duty of the contractor and or subcontractor giving rise to such
fine or penalty involves an area of responsibility clearly placed on the
contractor and or subcontractor. Civil or criminal penalties assessed
under the Price-Anderson Amendments Act of 1988, 42 U.S.C. 2273, 2282,
and the costs of litigation resulting from such assessments are
unallowable except as may be specifically provided in regulations
implementing those civil or criminal penalty provisions.
(11) Government-furnished property, except to the extent that cash
payment therefor is required pursuant to procedures of the DOE
applicable to transfers of such property to the contractor from others.
(12) Insurance (including and provision of a self-insurance reserve)
on any person where the contractor under the insurance policy is the
beneficiary, directly or indirectly, and insurance against loss or
damage to Government property.
(13) Interest, however represented (except (i) Interest incurred in
compliance with the contract clause entitled ''State and local Taxes''
or, (ii) imputed interest costs relating to leases classified and
accounted for as capital leases under generally accepted accounting
principles (GAAP), provided that the decision to enter into a capital
leasing arrangement has been specifically authorized and approved by the
DOE in accordance with applicable procedures and such interest costs are
recorded in an appropriately specified DOE account established for such
purpose), bond discounts and expenses, and costs of financing and
refinancing operations.
(14) Legal, accounting, and consulting services, and related costs
incurred in connection with the preparation of prospectuses, preparation
and issuance of stock rights, organization or reorganization,
prosecution or defense of antitrust suits, prosecution of claims against
the United States, contesting actions or proposed actions of the United
States, and prosecution or defense of patent infringement litigation.
(15) Losses, including litigation expenses, Counsel fees, and
settlement on, or arising from the sale, exchange, or abandonment of
capital assets, including investments; losses on other contracts,
including the contractor's contributed portion under cost-sharing
contracts; losses in connection with price reduction to and discount
purchases by employees and others from any sources; and losses where
such losses or expenses:
(i) Are compensated for by insurance or otherwise, or which would
have been compensated by insurance required by law or by written
direction of the contracting officer, but which the contractor failed to
procure or maintain through its own fault or negligence, or which could
have been covered by permissible insurance in keeping with ordinary
business practice, but which the contractor failed to secure or
maintain;
(ii) Result from willful misconduct or lack of good faith on the part
of any of the contractor's directors, corporate officers, or a
supervising representative of the contractor.
(iii) Represent liabilities to third persons for which the contractor
has expressly accepted responsibility under other terms of this
contract.
(iv)Note: In contracts with profit making contractors, add the
following paragraph:
or, are direct costs which are avoidable that are incurred by the
contractor and/or subcontractor, at any tier or level, without any fault
of DOE, exclusively as a result of the negligence or willful misconduct
on the part of any of the contractor's and/or its subcontractor's
personnel, at any tier or level, in performing work under the contract.
(A) Such direct costs may include, for example, additional
programmatic expenses for research and development or production
activities, and third party claims against the contractor, but shall not
include scrap, waste, and other routine damages or losses which occur as
part of the cost of doing business and are reasonably anticipated and
shall not include consequential damages.
(B) Costs of litigation incurred by the contractor and or
subcontractor in bringing or defending claims relating to these costs
are also unallowable.
(16) Maintenance, depreciation, and other costs incidental to the
contractor's idle or excess facilities (including machinery and
equipment) other than reasonable standby facilities.
(17) Membership in trade, business, and professional organizations
except as approved by the contracting officer.
(18) Precontract costs, except as expressly made allowable under
other provisions in this contract.
(19) Reconversion, alteration, restoration, or rehabilitation of the
contractor's facilities, except as expressly provided elsewhere in this
contract.
(20) Selling costs, except to the extent they are determined to be
reasonable and to be allocable to the contract. Allocability of selling
costs to the contract will be determined in the light of reasonable
benefit to the agency program arising from such purposes as applying or
adapting the contractor's product for agency use.
(21) Storage or records pertaining to this contract after completion
of operations under this contract irrespective of contract or statutory
requirement for the preservation of records.
(22) Taxes, fees, and charges in connection with financing,
refinancing or refunding operations, including the listing of securities
on exchanges; taxes which are paid contrary to the clause entitled
''State and local taxes;'' Federal taxes on net income and excess
profits; special assessments on land which represent capital
improvement and taxes on accumulated funding deficiencies of, or
prohibited transactions involving, employee deferred compensation plans
pursuant to section 4971 or section 4975 of the Internal Revenue Code of
1954, as amended, respectively.
(23) Salary or other compensation (and expenses related thereto) of
any individual employed under this contract as a consultant or in
another comparable employment capacity who is an employee of another
organization and concurrently performing work on a full-time annual
basis for that organization under a cost-type contract with DOE, except
to the extent that cash payment thereto is required pursuant to the
provisions of this contract or procedures of the DOE applicable to the
borrowing of such an individual from another cost-type contractor.
(24) Travel by commercial aircraft or travel by other than common
carrier that is not necessary for the performance of this contract or
the cost of which exceeds the lesser of the lowest available commercial
discount airfare, Government contract airfare, or customary standard
(coach or equivalent) commercial airfare. Airfare costs in excess of
the lowest such airfare are unallowable, except when such
accommodations: Require circuitous routing; require travel during
unreasonable hours; excessively prolong travel; result in increased
cost that would offset transportation savings; would offer
accommodations not reasonably adequate for the physical or medical needs
of the traveler; or are not reasonably available to meet necessary
mission requirements. Individual contractor determinations of
nonavailability of commercial discount airfare or Government contract
airfare will not be contested by DOE when the contractor can reasonably
demonstrate such nonavailability or, on an overall basis, that
established policies and procedures result in the routine use of the
lowest available airfare. However, in order for air travel costs in
excess of customary standard airfare to be allowable, the contractor
must justify and document the applicable condition(s) set forth above.
(25) Late premium payment charges related to employee deferred
compensation plan insurance, in accordance with FAR 31.205-6(j).
(26) Research and development costs, unless specifically provided for
elsewhere in this contract.
(27) Bidding expenses and costs of proposals.
(28) Facilities capital cost of money (CAS-414 and CAS-417).
(29) Costs incurred to influence (directly or indirectly) legislative
action on any matter pending before Congress or a State legislature as
delineated in the clause titled ''Legislative Lobbying Cost
Prohibition'' incorporated elsewhere in this contract.
(30) Commercial automobile rental costs unless approved by the
contracting officer.
(31) Costs incurred in defense of any civil or criminal fraud
proceeding or similar proceeding (including filing of any false
certification) brought by the Government where the contractor, its
agents or employees, is found liable or has pleaded nolo contendere to a
charge of fraud or similar proceeding (including filing of a false
certification).
(32) Costs of alcoholic beverages.
(33) Contractor employee travel costs incurred for lodging, meals and
incidental expenses which exceed on a daily basis the applicable maximum
per diem rates in effect for Federal civilian employees at the time of
travel. When the applicable maximum per diem rate is inadequate due to
special or unusual situations, the contractor may pay employees for
actual expenses in excess of such per diem rate limitation. To be
allowable, however, such payments must be properly authorized by an
officer or appropriate official of the contractor and shall not exceed
the higher amounts that may be authorized for Federal civilian employees
in a similar situation.
(34) Note: In contracts with profit making contractors, add the
following clauses:
(i) Notwithstanding any other provision of this contract, the costs
of bonds and insurance are unallowable to the extent they are incurred
to protect and indemnify the contractor and/or subcontractor against
otherwise unallowable Avoidable Costs, such as fines and penalties,
third party claims, negligently or willfully caused damage to,
destruction of, or loss of government property and theft or unauthorized
use of government property, except and only to the extent such insurance
or bond is required by the specific written direction of the Contracting
Officer.
(ii)(A) The unallowable costs provisions of subparagraph (e)(15)(iv)
dealing with Avoidable Costs and subparagraph (i) of this clause, the
profit making provision of the clause set forth at 970.5204-14(e)(10),
the clause set forth at 970.5204-21(j), and the profit making provision
of the clause set forth at 970.5204-31 are not applicable to Small
Businesses and Small Disadvantaged Businesses as defined in the clause
of this contract entitled ''Utilization of Small Business Concerns and
Small Disadvantaged Business Concerns.'' All costs resulting from the
actions or inactions of Small Business and Small Disadvantaged
Businesses which would otherwise be determined to be Avoidable Costs are
allowable costs to the contractor.
(B) The above cited provisions in subparagraph (ii)(A) are also not
applicable to nonprofit subcontractors of profit making contractors and
profit making subcontractors of non-profit contractors. All costs
resulting from the actions or inactions of non-profit subcontractors
which would otherwise be determined to be Avoidable Costs are allowable
costs to the contractor.
(49 FR 12063, Mar. 28, 1984, as amended at 51 FR 43926, Dec. 5, 1986;
52 FR 1610, Jan. 14, 1987; 53 FR 21649, June 9, 1988; 55 FR 41540,
Oct. 12, 1990; 56 FR 28105, June 19, 1991)
48 CFR 970.5204-15 Obligation of funds.
(a) Obligation of funds. The amount presently obligated by the
Government with respect to this contract is -------- dollars ($ ------
). Such amount may be increased unilaterally by DOE by written notice
to the contractor and may be increased or decreased by written agreement
of the parties (whether or not by formal modification of this contract).
Estimated revenues and receipts from others for work and services to be
performed under this contract are not included in this amount --------
obligated with respect to this contract. Such revenues and receipts, to
the extent actually received by the contractor shall be available and
used for the payment of allowable costs as provided in the article
entitled ''Payments and Advances.'' Nothing in this paragraph (a) is to
be construed as authorizing the contractor to exceed limitations stated
in financial plans established by DOE and furnished to the contrator
from time to time under this contract.
(b) Limitation on payment by the Government. Except as otherwise
provided in this contract and except for costs which may be incurred by
the contractor pursuant to the clause entitled ''Termination,'' or costs
of claims allowable under the contract occurring after completion or
termination and not released by the contractor at the time of financial
settlement of the contract in accordance with the clause entitled
''Payments and Advances,'' payment by the Government under this contract
on account of allowable costs shall not, in the aggregate, exceed the
amount obligated with respect to this contract, less the contractor's
fixed fee. Unless expressly negated in this contract, payment on
account of those costs excepted in the preceding sentence which are in
excess of the amount obligated with respect to this contract shall be
subject to the availability of (1) revenues and receipts deposited to
the Government's account as provided in the clause entitled ''Payments
and Advances,'' and (2) other funds with DOE may legally use for such
purpose, provided DOE will use its best efforts to obtain the
appropriation of funds for this purpose if not otherwise available.
(c) Notices -- Contractor excused from further performance. The
contractor shall notify DOE in writing whenever the unexpended balance
of funds (including revenues and receipts) available under paragraph (a)
above, plus the contractor's best estimate of revenues and receipts to
be received during the ---- day period hereinafter specified, is in the
contractor's best judgment sufficient to continue contract operations at
the programmed rate for only ---- days and to cover the contractor's
unpaid fixed fee, and outstanding commitments and liabilities on account
of costs allowable under the contract at the end of such period.
Whenever the unexpended balance of funds (including revenues and
receipts) available under paragraph (a) above, less the amount of the
contractor's fixed fee then earned but not paid, is in the contractor's
best judgment either sufficient only to liquidate outstanding
commitments and liabilities on account of costs allowable under this
contract or is equal to zero, the contractor shall immediately notify
DOE and shall made no further commitments or expenditures (except to
liquidate existing commitments and liabilities), and, unless the parties
otherwise agree, the contractor shall be excused from further
performance (except such performance as may become necessary in
connection with termination by the Government) and the performance of
all work hereunder will be deemed to have been terminated for the
convenience of the Government in accordance with the provisions of the
article entitled ''Termination.''
(d) Financial plans; cost and commitment limitations. In addition
to the limitations provided for elsewhere in this contract, DOE may,
through financial plans or other directives issued to the contractor,
establish controls on the costs to be incurred and commitments to be
made in the performance of the contract work. Such plans and
instruction may be amended or supplemented from time to time by DOE.
The contractor hereby agrees to comply with the specific limitations
(ceilings) on costs and commitments set forth in such plans and
directives, to use its best efforts to comply with other requirements of
such plans and directive, and to promptly notify DOE in writing,
whenever it has reason to believe the authorized financial levels of
costs and commitments will be exceeded or substantially underrun.
Note: This paragraph (d) may be omitted in contracts which expressly
or otherwise provided a contractual basis for equivalent controls in a
separate article.
(e) Government's right to terminate not affected. The giving of any
notice under this clause shall not be construed to waive or impair any
right of the Government to terminate the contract under the provisions
of the article entitled ''Termination.''
(49 FR 12063, Mar. 28, 1984, as amended at 56 FR 41966, Aug. 26,
1991)
48 CFR 970.5204-16 Payments and advances.
(a) Installments of fixed-fee. Ninety percent (90%) of the fixed-fee
shall become due and payable in periodic installments in amounts based
on the proportion of the work then completed, as determined by the
contracting officer, and the balance upon completion and acceptance of
all work under this contract.
Note 1: Where a separate fixed-fee is provided for a separate item
of work, this subparagraph should be modified to permit payment of the
entire fixed-fee upon completion of that item.
Note 2: When award-fee provisions in this clause are used, in lieu
of paragraph (a), use the following text:
(a) Payment of Basic Fee and Award Fee. The basic fee shall become
due and payable in equal monthly installments, Provided, However, that
the contractor shall refund to the Government a portion of the basic fee
if its performance during an evaluation period falls below the level of
acceptable performance, i.e., a performance score of 75 or less. Such
refund shall be at the rate of 5% of the basic fee allocated to the
evaluation period in question for each performance point below 76, as
assigned by the Government Fee Determination Official (FDO), provided
that no more than 50% of the basic fee shall be required to be refunded
under this provision. Award fees earned shall become due and payable
following the issuance by the FDO of a Determination of Award Fee
Earned, in accordance with the clause of this contract entitled ''Basic
Fee and Award Fee.''
(b) Payments on Account of Allowable Costs. The contracting officer
and the contractor shall agree as to the extent to which payment for
allowable costs or payments for other items specifically approved in
writing by the contracting officer shall be made from advances of
Government funds. When pension contributions are paid by the contractor
to the retirement fund less frequently than quarterly, accrued costs
therefor shall be excluded from costs for payment purposes until such
costs are paid. If pension contribution are paid on a quarterly or more
frequent basis, accrual therefor may be included in costs for payment
purposes, provided that they are paid to the fund within 30 days after
the close of the period covered. If payments are not made to the fund
within such 30-day period, pension contribution costs shall be excluded
from cost for payment purposes until payment has been made.
(c) Special bank account -- use. All advances of Government funds
shall be withdrawn pursuant to a letter of credit in favor of the bank
or, in the option of the Government, shall be made by check payable to
the contractor, and shall be deposited only in the Special Bank Account
referred to in the Agreement for Special Bank Account, which is attached
hereto and incorporated into this contract as an appendix. The
contractor shall likewise deposit in the Special Bank Account any other
revenues received by the contractor in connection with the work under
this contract. No part of the funds in the Special Bank Account shall
be (1) mingled with any funds of the contractor or (2) used for a
purpose other than that of making payments for costs allowable under
this contract or payments for other items specifically approved in
writing by the contracting officer. If the contracting officer shall at
any time determine that the balance on such bank account exceeds the
contractor's current needs, the contractor shall promptly make such
disposition of the excess as the contracting officer may direct.
(d) Title to funds advanced. Title to the unexpended balance of any
funds advanced and of any bank account established pursuant to this
clause shall remain in the Government and be superior to any claim or
lien of the bank of deposit or others. It is understood that an advance
to the contractor hereunder is not a loan to the contractor, and will
not require the payment of interest by the contractor, and that the
contractor acquires no right, title or interest in or to such advance
other than the right to make expenditures therefrom, as provided in this
clause.
Note 3: The following paragraph (e) shall be included in management
and operating contracts with integrated contractors.
(e) Review and approval of costs incurred. The contractor shall
prepare and submit annually as of September 30, a voucher for the total
of net expenditures accrued (i.e., net costs incurred) for the period
covered by the voucher, and DOE, after audit and appropriate adjustment,
will approve such voucher. This approval by DOE will constitute an
acknowledgment by DOE that the net costs incurred are allowable under
the contract and that they have been recorded in the accounts maintained
by the contractor in accordance with DOE accounting policies, but will
not relieve the contractor of responsibility for DOE's assets in its
care, for appropriate subsequent adjustments, or for errors later
becoming known to DOE.
Note 4: It should be omitted in contracts with nonintegrated
contractors.
(f) Financial settlement. The Government shall promptly pay to the
contractor the unpaid balance of allowable costs and fixed fee upon
termination of the work, expiration of the term of the contract, or
completion of the work and its acceptance by the Government after (1)
compliance by the contractor with DOE's patent clearance requirements,
and (2) the furnishing by the contractor of:
(i) An assignment of the contractor's rights to any refunds, rebates,
allowances, accounts receivable, or other credits applicable to
allowable costs under the contract;
(ii) A closing financial statement;
(iii) The accounting for Government-owned property required by the
clause entitled ''Property;'' and
(iv) A release discharging the Government, its officers, agents, and
employees from all liabilities, obligations, and claims arising out of
or under this contract subject only to the following exceptions:
(A) Specified claims in stated amounts or in estimated amounts where
the amounts are not susceptible to exact statement by the contractor;
(B) Claims, together with reasonable expenses incidental thereto,
based upon liabilities of the contractor to third parties arising out of
the performance of this contract; provided that such claims are not
known to the contractor on the date of the execution of the release;
and provided further that the contractor gives notice of such claims in
writing to the contracting officer promptly, but not more than one (1)
year after the contractor's right of action first accrues. In addition,
the contractor should provide prompt notice to the contracting officer
of all potential claims under this clause, whether in litigation or not
(see also Contract Clause ------ , DEAR 970.5204-31, ''Litigation and
Claims''); and
(C) Claims for reimbursement of costs (other than expenses of the
contractor by reason of any indemnification of the Government against
patent liability), including reasonable expenses incidental thereto,
incurred by the contractor under the provisions of this contract
relating to patents.
In arriving at the amount due the contractor under this clause, there
shall be deducted, any claim which the Government may have against the
contractor in connection with this contract, and deductions due under
the terms of this contract, and not otherwise recovered by or credited
to the Government. The unliquidated balance of the Special Bank Account
may be applied to the amount due and any balance shall be returned to
the Government forthwith.
(g) Claims. Claims for credit against funds advanced for payment
shall be accompanied by such supporting documents and justification as
the contracting officer shall prescribe.
(h) Discounts. The contractor shall take and afford the Government
the advantage of all known and available cash and trade discounts,
rebates, allowances, credits, salvage, and commissions unless the
contracting officer finds that action is not in the best interest of the
Government.
(i) Revenues. All revenues other than the contractor's fixed fee or
fees, if any, accruing to the contractor in connection with the work
under this contract shall be Government property and shall be deposited
in the Special Bank Account to be available for payment of allowable
cost under this contract.
(j) Direct payment of charges. The Government reserves the right,
upon ten days written notice from the contracting officer to the
contractor, to pay directly to the persons concerned, all amounts due
which otherwise would be allowable under this contract. Any payment so
made shall discharge the Government of all liability to the contractor
therefor.
(49 FR 12063, Mar. 28, 1984, as amended at 54 FR 48614, Nov. 24,
1989; 55 FR 31053, July 31, 1990; 56 FR 28106, June 19, 1991)
48 CFR 970.5204-17 Legislative lobbying cost prohibition.
(a) Pursuant to the allowable cost provisions established elsewhere
under the contract, costs associated with the following activities are
not reimbursable under the contract:
(1) Attempts to influence the outcome of any Federal, State, or local
election, referendum, initiative, or similar procedure, through in-kind
or cash contributions, endorsements, publicity, or similar activities;
(2) Establishing, administering, contributing to, or paying the
expenses of a political party, campaign, political action committee, or
other organization established for the purpose of influencing the
outcomes of elections;
(3) Any attempt to influence (i) the introduction of Federal or State
legislation, or (ii) the enactment or modification of any pending
Federal or State legislation through communication with any member or
employee of the Congress or State legislature (including efforts to
influence state or local officials to engage in similar lobbying
activity), or with any government official or employee in connection
with a decision to sign or veto enrolled legislation;
(4) Any attempt to influence (i) the introduction of Federal or State
legislation, or (ii) the enactment or modification of any pending
Federal or State legislation by preparing, distributing or using
publicity or propaganda, or by urging members of the general public or
any segment thereof to contribute to or participate in any mass
demonstration, march, rally, fund raising drive, lobbying campaign or
letter writing or telephone campaign; or
(5) Legislative liaison activities, including attendance at
legislative sessions or committee hearings, gathering information
regarding legislation, and analyzing the effect of legislation, when
such activities are carried on in support of or in knowing preparation
for an effort to engage in unallowable activities.
(b) Costs of the following activities are excepted from the coverage
of paragraph (a) of this clause; provided that the resultant contract
costs are reasonable and otherwise comply with the allowable cost
provisions of the contract:
(1) Providing Members of Congress, State legislatures or subdivisions
thereof, or their staff members or staff of cognizant legislative
committees, in response to a request (written or oral, prior or
contemporaneous, including a Congressional Record notice requesting
testimony or statements for the record at a regularly scheduled hearing)
from Members of Congress, State legislatures or subdivisions thereof, or
their staff members or staff of cognizant legislative committees,
information or expert advice of a factual, techncial, or scientific
nature, with respect to topics directly related to the performance of
the contract or proposed legislation. Reasonable costs for
transportation, lodging, or meals incurred by contractor employees for
the purpose of providing such information or advice shall also be
reimbursable; provided such costs also comply with the allowable cost
provisions of the contract.
(2) Any lobbying made unallowable under paragraph (a)(3) of this
clause to influence State legislation in order to directly reduce
contract cost, or to avoid material impairment of the contractor's
authority to perform the contract if authorized by the Contracting
Officer.
(3) Any activity specifically authorized by statute to be undertaken
with funds from the contract.
(c) Unallowable lobbying costs incurred, if any, shall not be charged
to DOE, paid for with DOE funds or recorded as allowable cost in DOE's
system of accounts.
(d) The contractor's annual certification, submitted as part of its
annual claim (i.e., Voucher Accounting for Net Expenditures Accrued
required under the clause titled ''Payments and Advances'') or cost
incurred statement, that the costs claimed are allowable under the
contract, shall also serve as the contractor's certification that the
requirements and standards of this clause have been complied with.
(e) The contractor shall maintain adequate records to demonstrate
that the annual certifications of claimed costs as being allowable
comply with the requirements of this clause.
(f) Time logs, calendars, or similar records shall not be created for
purposes of complying with this clause during any particular calendar
month when: (1) An employee engages in legislative liaison activities
(as delineated in paragraphs (a) and (b) of this clause) 25 percent or
less of the employees's compensated hours of employment during that
calendar month, and (2) within the preceding five-year period, the
contractor has not materially misstated allowable or unallowable costs
of any nature, including legislative liaison costs. When conditions
(f)(1) and (2) of this clause are met, the contractor is not required to
establish records to support the allowability of claimed costs in
addition to records already required or maintained. Also, when
conditions (f) (1) and (2) of this clause are met, the absence of time
logs, calendars, or similar records will not serve as a basis for
disallowing costs by contesting estimates of legislative liaison
activity time spent by employees during any calendar month.
(g) During contract performance, the contractor should resolve, in
advance, any significant questions or disagreements between the
contractor and DOE concerning compliance with this clause.
(53 FR 21649, June 9, 1988; 53 FR 24830, June 30, 1988)
48 CFR 970.5204-18 Definition of nonprofit and profit making management
and operating contractors and subcontractors.
For purposes of subsections 970.5204-13(e)(12) and (e)(17)(iv),
970.5204-14(e)(10) and (e)(15)(iv), 970.5204-21(j) and 970.5204-31, a
nonprofit management and operating contractor or subcontractor is one
which receives no fee and is considered nonprofit under the laws of the
jurisdiction where it is incorporated. A subsidiary may be a nonprofit
contractor or subcontractor if all entities above it in the corporate
structure are considered nonprofit under the laws of the incorporating
jurisdiction. A profit making subcontractor of a nonprofit contractor
is a nonprofit subcontractor for the purpose of the applicability of the
subsections specified in this paragraph. A non-profit subcontractor of
a profit making contractor is also a non-profit subcontractor for
purposes of the applicability of the subsections specified in this
paragraph. A Contracting Officer may also treat as nonprofit a
contractor whose particular corporate organization or circumstances, in
the judgment of the Contracting Officer, warrants such consideration.
All other management and operating contractors are considered profit
making.
(56 FR 28106, June 19, 1991)
48 CFR 970.5204-19 Printing clause for management and operating
contracts.
(a) To the extent that duplicating or printing services may be
required in the performance of this contract, the Contractor shall
provide or secure such services in accordance with the Government
Printing and Binding Regulations, Title 44 of the U.S. Code, and DOE
Directives relative thereto.
(b) The term ''Printing'' includes the following processes:
composition, platemaking, presswork, binding, microform publishing, or
the end items produced by such processes. Provided, however, that
performance of a requirement under this contract involving the
duplication of less than 5,000 copies of a single page, or no more than
25,000 units in the aggregate of multiple pages, will not be deemed to
be printing.
(c) Printing services not obtained in compliance with this guidance
shall result in the cost of such printing being disallowed.
(d) In all subcontracts hereunder which require printing (as that
term is defined in Title I of the U.S. Government Printing and Binding
Regulations), the Contractor shall include a provision substantially the
same as this clause.
970.5204-20 (Reserved)
48 CFR 970.5204-21 Property.
(a) Furnishing of Government property. The Government reserves the
right to furnish any property or services required for the performance
of the work under this contract.
(b) Title to property. Except as otherwise provided by the
contracting officer, title to all materials, equipment, supplies, and
tangible personal property of every kind and description purchased by
the contractor, for the cost of which the contractor is entitled to be
reimbursed as a direct item of cost under this contract, shall pass
directly from the vendor to the Government. The Government reserves the
right to inspect, and to accept or reject, any item of such property.
The contractor shall make such disposition of rejected items as the
contracting officer shall direct. Title to other property, the cost of
which is reimbursable to the contractor under this contract, shall pass
to and vest in the Government upon (1) issuance for use of such property
in the performance of this contract, or (2) commencement of processing
or use of such property in the performance of this contract, or (3)
reimbursement of the cost thereof by the Government, whichever first
occurs. Property furnished by the Government and property purchased or
furnished by the contractor, title to which vests in the Government,
under this paragraph are hereinafter referred to as Government property.
Title to Government property shall not be affected by the incorporation
of the property into or the attachment of it to any property not owned
by the Government, nor shall such Government property or any part
thereof, be or become a fixture or lose its identity as personalty by
reason of affixation to any realty.
(c) Identification. To the extent directed by the contracting
officer, the contractor shall identify Government property coming into
the contractor's possession or custody, by marking and segregating in
such a way, satisfactory to the contracting officer, as shall indicate
its ownership by the Government.
(d) Disposition. The contractor shall make such disposition of
Government property which has come into the possession or custody of the
contractor under this contract as the contracting officer may direct
during the progress of the work or upon completion or termination of
this contract. The contractor may, upon such terms and conditions as
the contracting officer may approve, sell, or exchange such property, or
acquire such property at a price agreed upon by the Contracting Officer
and the contractor as the fair value thereof. The amount received by
the contractor as the result of any disposition, or the agreed fair
value of any such property acquired by the contractor, shall be applied
in reduction of costs allowable under this contract or shall be
otherwise credited to account to the Government, as the contracting
officer may direct. Upon completion of the work or the termination of
this contract, the contractor shall render an accounting, as prescribed
by the contracting officer, of all government property which had come
into the possession or custody of the contractor under this contract.
(e) Protection of government property -- Classified Materials. The
contractor shall take all reasonable precautions, as directed by the
contracting officer, or in the absence of such direction in accordance
with sound industrial practice, to safeguard and protect government
property in the contractor's possession or custody. Special measures
shall be taken by the contractor in the protection of and accounting for
any classified or special materials involved in the performance of this
contract, in accordance with the regulations and requirements of DOE.
(f) Risk of loss of government property. The contractor shall not be
liable for loss or destruction of or damage to government property in
the contractor's possession unless such loss, destruction or damage
results from willful misconduct or lack or good faith on the part of the
contractor's managerial personnel, or unless such loss, destruction or
damage results from a failure on the part of the contractor's managerial
personnel to take all reasonable steps to comply with any appropriate
written directive of the contracting officer to safeguard such property
under paragraph (e) hereof. The term ''contractor's managerial
personnel'' as used herein means the contractor's directors, officers
and any of its managers, superintendents, or other equivalent
representatives who have supervision or direction of (1) all or
substantially all of the contractor's business; or (2) all or
substantially all of the contractor's operation at any one plant or
separate location at which this contract is being performed; or (3) a
separate and complete major industrial operation in connection with the
performance of this contract; or (4) a separate and complete major
construction, alteration or repair operation in connection with
performance of this contract.
(g) Steps to be taken in event of loss. Upon the happening of any
loss or destruction of or damage to government property in the
possession or custody of the contractor, the contractor shall
immediately inform the contracting officer of the occasion and extent
thereof, shall take all reasonable steps to protect the property
remaining, and shall repair or replace the lost, destroyed, or damaged
property, if and as directed by the contracting officer, but shall take
no action prejudicial to the right of the Government to recover therefor
and shall furnish to the Government, on request, all reasonable
assistance in obtaining recovery.
(h) Government property for Government use only. Government property
shall be used only for the performance of this contract.
(i) Property Management. The contractor shall maintain and
administer a property management system, subject to the approval of the
contracting officer, of accounting for and control, utilization,
maintenance, repair, protection and preservation of Government property
in its possession under the contract. The contractor's property
management system shall be maintained and administered in accordance
with sound business practice, and in accordance with Department of
Energy Property Management Regulations and such directives or
instructions which the contracting officer may from time to time
prescribe.
(j) Additional responsibility for risk of loss of government
property. The following paragraph (j) shall be added in contracts with
profit making contractors:
Notwithstanding the limitation of liability described in paragraph
(f) of this section, the contractor and/or subcontractor shall be
liable, respectively, for direct costs and expenses resulting from
damage to, destruction of, or loss of Government property as a direct
result of contractor and/or subcontractor negligence or willful
misconduct where the costs which are to be borne by the contractor
and/or subcontractor are those incurred in effecting the repairs to, or
replacement of, Government property. These Avoidable Costs do not
include scrap, waste and other routine damages or losses which occur as
part of the cost of doing business and are reasonably anticipated.
Costs which shall not be reimbursable are the result of circumstances:
(1) Clearly within the contractor's and/or subcontractor's sole and
exclusive control and (2) resulting from acts or omissions of the
contractor and/or subcontractor, in which the exercise of reasonable
care would have avoided the loss or destruction or damage. In the event
that such direct costs and expenses resulting from loss, or destruction
of, or damage to Government property are also in part caused by third
parties, other than DOE, such costs and expenses will not be reimbursed
by DOE. The allocation of financial responsibility between the
contractor and such third party should be determined by the parties
involved. In addition, the contractor shall be liable for direct damage
to, destruction of, or loss of Government property stemming from theft,
embezzlement, unauthorized use, or any other ultra vires activity by any
contractor or subcontractor personnel at any level. Under these
circumstances the contractor shall be required to bear the cost of
repairing or replacing the damaged, destroyed or lost government
property. For purposes of this clause, negligence is the failure to
exercise that standard of care which a reasonable and prudent person
would exercise under the same or similar circumstances in an identical
or similar environment.
(49 FR 12063, Mar. 28, 1984; 49 FR 38953, Oct. 2, 1984, as amended
at 56 FR 28106, June 19, 1991)
48 CFR 970.5204-22 Contractor purchasing system.
(a) (Name of contractor) shall develop and implement formal policies,
practices, and procedures to be used in the award of subcontracts, which
purchasing system and methods shall be fully documented and acceptable
to DOE, in accordance with the policies set forth in DEAR 970.71. DOE
reserves the right at any time to require that the contractor submit for
approval any or all purchases under this contract. The contractor shall
not purchase any item or service the purchase of which is expressly
prohibited by the written direction of DOE and shall use such special
and directed sources as may be expressly required by the DOE contracting
officer.
(b) The obligations of (name of contractor) under paragraph (a) of
this clause, including the development of the purchasing system and
methods, and purchases made pursuant thereto, shall not relieve the
contractor of any obligation under this contract (including, among other
things, the obligation to properly supervise, administer, and coordinate
the work of subcontractors). Subcontracts shall be in the name of the
contractor, and shall not bind or purport to bind the Government.
(c) In addition to, and without derogation of any rights under
paragraph (a) of this clause and any other provision in this contract,
(name of contractor) shall require all subcontractors to furnish cost or
pricing data under those conditions and in accordance with the
requirements set forth in FAR 15.804, and shall include in such
subcontracts the appropriate clause set forth in 970.5204-24 except as
otherwise directed or approved by DOE.
(d) Purchase or transfer of equipment, materials, supplies, or
services from a contractor-affiliated source shall be treated in
accordance with DEAR 970.7105.
(e) Proposed awards to firms or individuals on either the GSA
Consolidated List of Debarred, Suspended, and Ineligible Contractors or
the DOE Consolidated List of Debarred, Suspended, Ineligible, and
Voluntarily Excluded Awardees shall be forwarded to DOE for approval
notwithstanding any prior purchasing system acceptance.
(f) (Name of Contractor) shall provide advance notice of proposed
subcontract awards in accordance with DEAR 970.7109; shall document
purchases in writing; and shall establish and maintain subcontract
files which present an accurate and adequate record of all purchasing
transactions.
(g) (Name of Contractor) shall not enter into any lease for property,
plant, or equipment when the lease must be classified and accounted for
as a capital lease under generally accepted accounting principles,
unless the decision to enter into a capital leasing arrangement is
specifically authorized and approved in advance by the DOE.
(53 FR 24231, June 27, 1988; 54 FR 1288, Jan. 12, 1989, as amended
at 55 FR 41540, Oct. 12, 1990)
48 CFR 970.5204-23 Taxes.
(a) The contractor agrees to notify the contracting officer of any
State or local tax, fee, or charge levied or purported to be levied on
or collected from the contractor with respect to the contract work, any
transaction thereunder, or property in the custody or control of the
contractor and constituting an allowable item of cost if due and
payable, but which the contractor has reason to believe, or the
contracting officer has advised the contractor, is or may be
inapplicable or invalid;* and the contractor further agrees to refrain
from paying any such tax, fee, or charge unless authorized in writing by
the Contracting Officer. Any State or local tax, fee, or charge paid
with the approval of the contracting officer or on the basis of advice
from the contracting officer that such tax, fee, or charge is applicable
and valid, and which would otherwise be an allowable item of cost, shall
not be disallowed as an item of cost by reason of any subsequent ruling
or determination that such tax, fee, or charge was in fact inapplicable
or invalid.
*Requirement for notice may be broadened to include all State and
local taxes which may be claimed as allowable costs when considered to
be appropriate.
(b) The contractor agrees to take such action as may be required or
approved by the contracting officer to cause any State or local tax,
fee, or charge which would be an allowable cost to be paid under
protest; and to take such action as may be required or approved by the
contracting officer to seek recovery of any payments made, including
assignment to the Government or its designee of all rights to an
abatement or refund thereof, and granting permission for the Government
to join with the contractor in any proceedings for the recovery thereof
or to sue for recovery in the name of the contractor. If the
contracting officer directs the contractor to institute litigation to
enjoin the collection of or to recover payment of any such tax, fee, or
charge referred to above, or if a claim or suit is filed against the
contractor for a tax, fee, or charge it has refrained from paying in
accordance with this article, the procedures and requirements of the
article entitled ''Litigation and Claims'' shall apply and the costs and
expenses incurred by the contractor shall be allowable items of costs,
as provided in this contract, together with the amount of any judgment
rendered against the contractor.
(c) The Government shall hold the contractor harmless from penalties
and interest incurred through compliance with this clause. All
recoveries or credits in respect of the foregoing taxes, fees, and
charges (including interest) shall inure to and be for the sole benefit
of the Government.
48 CFR 970.5204-24 Subcontractor cost or pricing data.
(a) The following clause shall be inserted in all subcontracts where
such subcontracts are over $100,000 and any modification over $100,000
to such subcontracts, even though the original amount of the subcontract
is $100,000 or less:
(a)(1) The subcontractor shall require under the situations described
in (2) below, unless exempted under the exceptions set forth in (3)
below, each sub-subcontractor under this subcontract to submit cost or
pricing data and to certify that, to the best of his knowledge and
belief, such cost or pricing data are accurate, complete and current.
(2) Except as provided in (3) below, certified cost or pricing data
shall be submitted prior to (i) the award of each sub-subcontract, the
price of which is expected to exceed $100,000, and (ii) the negotiation
of the price of each change or modification to a sub-subcontract under
this subcontract for which the price adjustment is expected to exceed
$100,000.
(3) Certified cost or pricing data need not be furnished pursuant to
this paragraph (a) where (i) the subcontractor has not been required to
furnish cost or pricing data; or (ii) the price adjustment is based on
adequate price competition, established catalog or market prices of
commercial items sold in substantial quantities to the general public,
or the prices are set by law or regulation; and the subcontractor
states in writing the basis for applying this exception.
(4) In submitting the cost or pricing data, the sub-subcontractor
shall use the form of certificate set forth in paragraph (b) of this
section and shall certify that the data are accurate, complete, and
current. Such certificate and data (actual or identified, as provided
in the certificate prescribed below) shall be submitted by
sub-subcontractors to the next higher-tier sub-subcontractor or the
subcontractor, as applicable, for retention.
(b) The certificates required by this clause shall be in the form set
forth below.
This is to certify that, to the best of my knowledge and belief, cost
or pricing data submitted in writing, or specifically identified in
writing if actual submission of the data is impracticable (see FAR
15.804-6(d)), to the contractor in support of ------------ * are
accurate, complete, and current as of ---------- **.
Firm
Name
Title
Date of execution***
*Identify the proposal, quotation, request for price adjustment, or
other submission involved.
**Insert the day, month, and year when price negotiations were
concluded and price agreement was reached.
***Insert the day, month, and year of signing, which should be as
close as practicable to the date when the price negotiations were
concluded and the contract price was agreed to.
(c) For purposes of verifying that certified cost or pricing data
submitted in conjunction with the negotiation of this subcontract change
or other modification involving an amount in excess of $100,000 were
accurate, complete, and current, DOE shall, until the expiration of 3
years from the date of final payment under this subcontract, have the
right to examine those books, records, documents, papers, and other
supporting data which involve transactions related to this subcontract
or which will permit adequate evaluation of the cost or pricing data
submitted, along with the computations and projections used therein.
(d) If the original price of this subcontract exceeds $100,000 or the
price of any change or other modification to this subcontract is
expected to exceed $100,000, the subcontractor agrees to furnish the
contractor certified cost or pricing data, using the certificate set
forth in paragraph (b) above, unless the price is based on adequate
price competition, established catalog or market prices of commercial
items sold in substantial quantities to the general public, or prices
set by law or regulation.
(e) The requirement for submission of certified cost or pricing data
with respect to any change or other modification does not apply to any
sub-subcontract change or other modification, at any tier, where the
subcontract is firm fixed-price or fixed-price with escalation unless
such change or other modification result from a change or modification
to the subcontract, nor does it apply to a sub-subcontract change or
modification, at any tier, where the subcontract is not firm fixed-price
or fixed-price with escalation unless the price for such change or other
modification becomes reimbursable under the subcontract.
(f) The subcontractor agrees to insert paragraph (c) without change
and the substance of paragraphs (a), (b), (d), (e), and (f) of this
clause in each sub-subcontract hereunder in excess of $100,000 and in
each sub-subcontract of $100,000 or less, at the time of making a change
or other modification thereto in excess of $100,000.
(g) If the prime contractor determines that any price, including
profit or fee, negotiated in connection with this subcontract or any
cost reimbursable under this subcontract was increased by any
significant sums because the subcontractor, or any sub-subcontractor
pursuant to this clause or any sub-subcontract clause herein required,
furnished incomplete or inaccurate cost or pricing data or data not
current as certified in the subcontractor's certificate of current cost
or pricing data, then such price or cost shall be reduced accordingly
and the contract shall be modified in writing to reflect such reduction.
(h) Failure of the contractor and the subcontractor to agree on any
of the matters in paragraph (g) of this section shall be a dispute
concerning a question of fact subject to the Disputes provisions of this
subcontract.
Note: Since the subcontract is subject to reduction under this
clause by reason of defective cost or pricing data submitted in
connection with certain sub-subcontracts, it is expected that the
subcontractor may wish to include a clause in each such sub-subcontract
requiring the sub-subcontractor to appropriately indemnify the
subcontractor. It is also expected that any sub-subcontractor subject
to such indemnification will generally require substantially similar
indemnification for defective cost or pricing data required to be
submitted by its lower-tier sub-subcontractors.
(b) This clause may also be used for subcontracts of $100,000 or less
for which a certificate of cost or pricing data is obtained and, if so
used, the $100,000 amount stated in the clause should be appropriately
modified.
(c) The Head of a Contracting Activity, for contracts estimated to be
within the limits of delegated authority, may, without power of
redelegation, approve the waiver cited in FAR 15.804-3(i).
(49 FR 12063, Mar. 28, 1984; 49 FR 38953, Oct. 2, 1984, as amended
at 50 FR 12185, Mar. 27, 1985)
48 CFR 970.5204-25 Workmanship and materials.
(a) Grade of workmanship and materials. Unless otherwise directed by
the contracting officer or expressly provided for by specifications
issued under this contract:
(1) All workmanship shall be first class; and
(2) All articles, equipment and materials incorporated in the work
are to be:
(i) New and of the most suitable grade of their respective kinds for
the purpose;
(ii) In accordance with any applicable drawings and specifications;
and
(iii) Installed to the satisfaction and with the approval of the
contracting officer.
Where equipment, materials, or articles are referred to in the
specifications as ''equal to'' any particular standard, the contracting
officer shall decide the question of equality.
(b) Samples and test results. If the contracting officer so
requires, the contractor shall submit for approval samples of or test
results on any materials proposed to be incorporated in the work before
making any commitment for the purchase of such materials.
48 CFR 970.5204-26 Nuclear facility safety.
In accordance with the provisions at 970.2303 insert the clause below
in management and operating contracts.
(a) The activities under this contract include the operation of
nuclear facilities. The contractor recognizes that such operation
involves the risk of a nuclear incident which, while the chances are
remote, could adversely affect the public health and safety as well as
the environment. Therefore, the contractor will exercise a degree of
care commensurate with the risk involved.
(b) The contractor shall comply with all applicable regulations of
DOE concerning nuclear safety and with those requirements (including
reporting requirements and instructions) of DOE concerning nuclear
safety of which it is notified in writing by the contracting officer.
(c) Prior to the initial startup of any nuclear facility under this
contract and prior to any subsequent startup following a change which
represents a significant deviation from the procedures, equipment, or
analyses described in the safety analysis reports or other hazards
summary reports for that facility, the contractor shall:
(1) Prepare a safety analysis report and detailed plans and
procedures designed to assure the safe operations and maintenance of the
facility in accordance with applicable DOE regulations and directives.
For nuclear reactors and critical facilities, technical specifications
shall also be provided.
(2) Establish nuclear safety control procedures to be used within the
contractor's organization to insure competent independent review and
internal approval of the safety analysis report and the detailed plans
and procedures specified in (1) above.
(3) Submit to the contracting officer for his approval such
procedures relating to nuclear safety as may be designated by him.
(4) Carry out a program of initial training and periodic
requalification designed to assure that all personnel who will be
engaged in nuclear operations or maintenance understand the approved
plans and procedures for nuclear safety and are qualified to perform
their assigned functions; and
(5) Obtain the approval of the contracting officer prior to start-up
of the facility.
(d) In the operation and maintenance of any nuclear facility under
this contract, the contractor shall:
(1) Use all reasonable efforts to assure that all operational and
maintenance activities are performed by qualified and adequately trained
personnel, and except as otherwise agreed in writing, are conducted
under the supervision of personnel who are qualified and authorized to
evaluate any emergency condition and take prompt effective action with
respect thereto.
(2) Operate the facility within the technical specifications or
operational safety requirements which are approved by the contracting
officer.
(3) Follow strictly the procedures relating to nuclear safety
approved by the contracting officer in paragraph (c)(3) of this section,
and submit to the contracting officer for his approval, any proposed
changes in such procedures.
(4) Establish an auditable, well-defined, internal safety review and
inspection system approved by the contracting officer (including review
and inspection reports by competent technical personnel) that will: (i)
Provide frequent and periodic checks of facility performance and of the
qualifications and training of operating and maintenance personnel, and
(ii) provide for investigation of any unusual or unpredicted conditions
that might affect safe operation.
(5) Report promptly to the contracting officer any change in the
physical condition of the facility or its operating characteristics that
might, in the judgment of the contractor, affect the safe operation of
the facility.
(6) Terminate operations at the facility immediately whenever so
instructed by the contracting officer, or whenever, in the judgment of
the contractor, the risk of a nuclear incident endangering persons or
property warrants such action.
(7) Prepare, in cooperation with other services and facilities
available at the site and with the approval of the contracting officer,
a plan for minimizing the effects of a nuclear incident upon the health
and safety of all persons on the site; participate as directed in the
integration of the contractor's and contracting officer's emergency
plans with the responsible state and local government's emergency plans
for protection of the public off-site; instruct its personnel as to
their participation in such plans and any personal risk to such
personnel that may be involved; and participate in such practice
exercises as may be desirable to assure the effectiveness of such plans.
(8) At an appropriate time as determined by the contracting officer,
prepare and submit to the contracting officer for his approval,
shutdown, decommissioning, decontamination and property management plans
leading to orderly and safe program disposition of the nuclear facility
and any associated nuclear wastes or other hazardous material.
(9) In the event that the contractor fails to comply with said
standards and requirements of DOE, the contracting officer may, without
prejudice to any other legal or contractual rights of DOE, issue an
order stopping all or any part of the work; thereafter a start order
for resumption of the work may be issued at the discretion of the
contracting officer. The contractor shall make no claim for an
extension of time or for compensation or damages by reason of or in
connection with such work stoppage.
(49 FR 12063, Mar. 28, 1984, as amended at 56 FR 41966, Aug. 26,
1991)
48 CFR 970.5204-27 Consultant or other comparable employment services of
contractor employees.
(a) The following clause shall be included in all cost-reimbursement
type contracts identified in 970.2272(b)(3).
The contractor shall require all employees who are employed full-time
(an individual who performs work under the cost-type contract on a
full-time annual basis) or part-time (50 percent or more of regular
annual compensation received under terms of a contract with DOE) on the
contract work to disclose to the contractor all consultant or other
comparable employment services which the employees propose to undertake
for others. The contractor shall transmit to the contracting officer
all information obtained from such disclosures. The contractor will
require any employee who will be employed full-time on the contract o
agree, as a condition of his participation in such work, that he will
not perform consultant or other comparable employment services for
another DOE contractor under its contract with DOE, except with the
prior approval of the contractor.
(b) The following clause shall be included in all contracts
identified in 970.2272(b)(4).
The contractor shall require all employees who are employed full-time
(an individual who performs work under the cost-type contract on a
full-time annual basis) or part-time (50 percent or more of regular
annual compensation received under terms of a contract with DOE) on the
contract work to disclose to the contractor all consultant or other
comparable employment services which the employees propose to undertake
for others. The contractor shall transmit to the contracting officer
all information obtained from such disclosures. The contractor will
require any employee who will be employed full-time on the contract work
to agree, as a condition of his participation in such work, that he will
not perform consultant or other comparable employment services for
another DOE contractor in the same or related energy field or another
organization except with the prior approval of the contractor. If the
contractor believes, with respect to any employee who is employed
full-time on the contract work, that any proposed consultant or other
comparable employment service may involve: (1) A rate of remuneration
significantly in excess of the employee's regular rate of remuneration;
(2) a significant question concerning possible conflict with DOE's
policies regarding conduct of employees of DOE's contractors; (3) the
contractor's responsibility to report fully and promptly to DOE all
significant research and development information; or (4) the patent
provisions of the contractor's contract with DOE, the contractor shall
obtain the prior approval of the contracting officer for such consultant
or other comparable employment service.
(49 FR 12063, Mar. 28, 1984; 49 FR 38953, Oct. 2, 1984; 54 FR
27649, June 30, 1989)
48 CFR 970.5204-28 Assignment.
Neither this contract nor any interest therein nor claim thereunder
shall be assigned or transferred by the contractor except as expressly
authorized in writing by the contracting officer.
48 CFR 970.5204-29 Permits or licenses.
Except as otherwise directed by the contracting officer, the
contractor shall procure all necessary permits or licenses and abide by
all applicable laws, regulations, and ordinances of the United States
and of the state, territory, and political subdivision in which the work
under this contract is performed.
48 CFR 970.5204-30 Notice of labor disputes.
Whenever an actual or potential labor dispute is delaying or
threatening the performance of the work, the contractor shall
immediately notify the contracting officer in writing. Such notice
shall include all relevant information concerning the dispute and its
background.
48 CFR 970.5204-31 Litigation and claims.
(a) Initiation of litigation. The contractor may, with the prior
written authorization of the Contracting Officer, and shall, upon the
request of the Government, initiate litigation against third parties,
including proceedings before administrative agencies, in connection with
this contract. The contractor shall proceed with such litigation in
good faith and as directed from time to time by the Contracting Officer.
(b) Defense and settlement of claims.
Note 1: In contracts with nonprofit contractors, add the following
clause:
The contractor shall give the Contracting Officer immediate notice in
writing (1) of any action, including any proceeding before an
administrative agency, filed against the contractor arising out of the
performance of this contract, and (2) of any claim against the
contractor, the cost and expense of which is allowable under the clause
entitled ''Allowable Costs and Fixed-Fee.'' Except as otherwise directed
by the Contracting Officer, in writing, the contractor shall furnish
immediately to the Contracting Officer copies of all pertinent papers
received by the contractor with respect to such action or claim. To the
extent not in conflict with any applicable policy of insurance, the
contractor may, with the Contracting Officer's approval, settle any such
action or claim; shall effect, at the Contracting Officer's request, an
assignment and subrogation in favor of the Government of all of the
contractor's rights and claims (except those against the Government)
arising out of such action or claim against the contractor; and, if
required by the Contracting Officer, shall authorize representatives of
the Government to settle or defend any such action or claim and to
represent the contractor in, or to take charge of, any action. If the
settlement or defense of an action or claim against the contractor is
undertaken by the Government, the contractor shall furnish all
reasonable assistance in effecting a settlement or asserting a defense.
Where an action or claim against the contractor is not covered by a
policy of insurance, the contractor shall, with the approval of the
Contracting Officer, proceed with the defense of the action or claim in
good faith and in such event the defense of the action or claim shall be
at the expense of the Government, Provided, however, That the Government
shall not be liable for such expense to the extent that it would have
been compensated for by insurance which was required by law or by the
written direction of the Contracting Officer, but which the contractor
failed to secure or maintain through its own fault or negligence.
Note 2: In contracts with profit making contractors, add the
following clause:
(1) The contractor shall give the Contracting Officer immediate
notice in writing of any action, including any proceeding before an
administrative agency, filed against the contractor arising out of the
performance of this contract, and of any claim against the contractor
the costs and expense of which the contractor would propose to submit as
a claim for allowable costs under the terms of the clause entitled
''Allowable Costs and Fixed-Fee.''
(2) Except to the extent prohibited by the Major Fraud Act of 1988,
41 U.S.C. 256, the Contracting Officer may choose to instruct the
contractor to proceed in good faith with the defense of the claim
subject to the direction of the Government. Except as otherwise
directed by the Contracting Officer in writing, the contractor shall
furnish immediately to the Contracting Officer copies of all pertinent
papers received by the contractor with respect to such action or claim.
The contractor may, with the Contracting Officer's approval, settle any
such action or claim. The contractor shall effect, at the Contracting
Officer's request, an assignment and subrogation in favor of the
Government of all of the contractor's rights and claims (except those
against the Government) arising out of or related to such action or
claim against the contractor, and, if required by the Contracting
Officer, shall authorize representatives of the Government to settle or
defend any such action or claim and to represent the contractor in, or
to take charge of, any action. If the settlement or defense of an
action or claim against the contractor is undertaken by the Government,
the contractor shall furnish all reasonable assistance in effecting a
settlement or asserting a defense. If an adverse judgment is entered
against the contractor in a case where the Contracting Officer has
approved and/or directed the defense as provided in this paragraph, the
costs of litigation and liability for any resulting claim or damages
shall be at the expense of the Government, Provided, however, That the
Government shall not be liable for such expenses to the extent that they
would have been compensated for by insurance which was required by law
or by the written direction of the Contracting Officer, but which the
contractor failed to secure or maintain through its own fault or
negligence.
(3) Should the Contracting Officer not choose to approve or direct
the defense of the litigation as provided in paragraph (2), the
Government has no liability for the costs of litigation except as
provided in paragraphs (4) and (5). The contractor may request that the
Contracting Officer assume direction of the litigation at any point when
new facts on the matter would so warrant; Provided, however, That the
Contracting Officer may assume direction of the litigation or direct
settlement, without a request from the contractor, at any time during
the litigation process when the Contracting Officer determines that it
is in the best interest of the Government to do so, in which case the
liability for any resulting claims or damages shall be at the expense of
the Government.
(4) The contractor must inform the Contracting Officer of any
proposed settlement agreement. The notification shall be supported by
all information available to the contractor which is pertinent to the
settlement.
(i) Except to the extent prohibited by the Major Fraud Act of 1988,
41 U.S.C. 256, the Contracting Officer has the option of accepting the
settlement reached by the contractor. If the settlement is accepted,
the Contracting Officer and the contractor shall negotiate the
Government's share of the settlement and litigation expenses. Any
agreement reached at this point shall be under the authority, and
subject to the restrictions, of FAR 33.210.
(ii) If the contractor proceeds without, or otherwise does not
obtain, Contracting Officer approval of the settlement agreement, the
cost of the agreement and all related costs of litigation shall be at
the contractor's own risk and expense.
(5)(i) If the contractor has suffered a final judgment, a claim for
reimbursement of the costs of litigation or any resulting damages or
both may be made to the Contracting Officer. Except to the extent
prohibited by the Major Fraud Act of 1988, 41 U.S.C. 256, the
Contracting Officer is authorized, in his discretion, to negotiate a
settlement with the contractor.
(ii) Reimbursement of costs of litigation and judgments under
subparagraph (5)(i) may be paid by the Government notwithstanding the
prohibitions contained in subsections 970.5204-13(e)(12) and (17)(iv),
subsections 970.5204-14(e)(10) and (15)(iv) and section 970.5204-21(j)
and section 970.5204-31.
(6) Certification of costs. The Contracting Officer may not accept
any settlement or otherwise authorize reimbursement of costs and/or
damages where the contractor has not certified, in the form required by
the clause of this contract entitled ''Disputes,'' the facts known by
the contractor, at the time the matter is submitted for review, which
form the basis upon which the contractor seeks reimbursement of these
costs.
(c) Costs of Litigation.
''Costs of Litigation'' as used herein, includes, but are not limited
to, administrative and clerical expenses; the cost of legal services,
whether performed by in-house or private counsel; the costs of the
services of accountants, consultants, or others retained by the
contractor to assist it; all elements of compensation, related costs,
and expenses of employees, officers, and directors; and any similar
costs incurred before, during, and after commencement of a judicial or
administrative proceeding which bear direct and substantial relationship
to the proceedings.
(56 FR 28106, June 19, 1991, as amended at 56 FR 41966, Aug. 26,
1991)
48 CFR 970.5204-32 Required bond and insurance-exclusive of Government
property.
Note 1: In contracts with nonprofit contractors use the following
clause:
The contractor shall procure and maintain such bonds and insurance as
are required by law or by the written direction of the Contracting
Officer. The terms and conditions of such bonds and insurance shall
conform to the directions of the Contracting Officer. In view of the
provisions of section 970.5204-21, ''Property,'' the contractor shall
not procure or maintain for its own protection any insurance covering
loss or destruction of, or damage to, Government property.
Note 2: In contracts with profit making contractors use the
following clause:
The contractor shall procure and maintain such bonds and insurance as
required or approved in writing by the Contracting Officer. The terms
and conditions of any such bonds and insurance shall conform to the
directions of the Contracting Officer. In view of the provisions of
970.5204-21, ''Property,'' the contractor may, at its own expense and
not as an allowable cost, procure for its own protection insurance
covering loss or destruction of, or damage to, Government property to
compensate the contractor for any unallowable or nonreimbursable costs
incurred in connection with such property.
(56 FR 28107, June 19, 1991)
48 CFR 970.5204-33 Priorities and allocations.
(a) The following clause shall be used in management and operating
contracts for military and atomic energy construction, operations and
other directly related activity, where the programs have been authorized
pursuant to the Atomic Energy Act of 1954, as amended.
The contractor shall follow the rules and procedures of the Defense
Priorities and Allocations System (DPAS) regulation (15 CFR Part 350) in
obtaining controlled materials and other products and materials needed
for contract performance.
(b) The following clause shall be used in management and operating
contracts in support of programs and projects which may be determined to
maximize domestic energy supplies.
A program or project under this contract may be determined to be
eligible for priorities and allocations support as provided for by
section 101(c) of the Defense Production Act of 1950, as amended by the
Energy Policy and Conservation Act (Pub. L. 94-163, 42 U.S.C. 6201 et
seq.) if it is determined that its purpose is to maximize domestic
energy supplies. Eligibility is dependent on an executive decision on a
case-by-case basis with the decison being jointly made by the Department
of Energy and Commerce.
DOE regulations regarding material allocation and priority
performance under contracts or orders to maximize domestic energy
supplies can be found at Part 216 of Title 10 of the Code of Federal
Regulations (10 CFR Part 216).
Additional guidance is provided by DOE Publication MA-0192,
''Priorities and Allocations Support for Energy: Keeping Energy
Programs on Schedule,'' dated August 1985, as it may from time to time
be revised. Copies may be obtained by written request to: Department
of Energy, Office of Scientific and Technical Information (OSTI), Post
Office Box 62, Oak Ridge, Tennessee 37830.
(52 FR 38426, Oct. 16, 1987)
48 CFR 970.5204-34 Sensitive foreign nations control.
See 952.204-71.
48 CFR 970.5204-35 Controls in the national interest (unclassified
contracts with educational institutions).
The contractor agrees to comply with the requirements of DOE
specified in Attachment ---------- to this contract, and to such other
DOE requirements of the same general nature as the parties may agree to
from time to time; these requirements relate to unclassified work, and
they shall not be construed to limit or affect in any way the
contractor's obligation to conform to all security regulations and
requirements of DOE pertaining to classified work.
48 CFR 970.5204-36 Organizational conflicts of interest (contracts with
universities where DOE has major investments in facilities but does not
own or lease the land).
The parties agree that the university has adopted policies and
procedures, designed to avoid conflict-of-interest situations, which are
in substantial conformance with the Joint Statement of the Council of
American Association of University Professors and the American Council
on Education of December 1964, entitled, ''On Preventing Conflicts of
Interest in Government-Sponsored Research at Universities,'' which
policies and procedures will be applied in connection with this
contract.
48 CFR 970.5204-37 Statement of work (management and operating
contracts).
See 970.10.
48 CFR 970.5204-38 Special clause for procurement of construction.
In accordance with 970.2273 the following clause shall be used in
operating and management contracts when the contractor is to perform no
Davis-Bacon work with his own forces but may procure construction by
subcontract:
Upon request of the contracting officer and acceptance thereof by the
contractor, the contractor shall procure, by subcontract, the
construction of new facilities or the alteration or repair of
Government-owned facilities at the plant. Any subcontract entered into
under this paragraph shall be subject to the written approval of the
contracting officer and shall contain the provisions relative to labor
and wages required by law to be included in contracts for the
construction, alteration, and/or repair, including painting and
decorating, on a public building or public work.
(49 FR 12063, Mar. 28, 1984; 49 FR 38953, Oct. 2, 1984)
970.5204-39 -- 970.5204-40 (Reserved)
48 CFR 970.5204-41 Preservation of individual occupational radiation
exposure records.
See 952.223-75.
48 CFR 970.5204-42 Key personnel.
It having been determined that the employees whose names appear
(below or in Appendix ---- ), or persons approved by the contracting
officer as persons of substantially equal abilities and qualifications,
are necessary for the successful performance of this contract, the
contractor agrees to assign such employees or persons to the performance
of the work under this contract and shall not reassign or remove any of
them without the consent of the contracting officer. Whenever, for any
reason, one or more of the aforementioned employees is unavailable for
assignment for work under the contract, the contractor shall, with the
approval of the contracting officer, replace such employee with an
employee of substantially equal abilities and qualifications.
48 CFR 970.5204-43 Other Government contractors.
The Government may undertake or award contracts for work or services.
The contractor agrees to fully cooperate with such other contractors
and Government employees and carefully fit its own work to such other
work as may be directed by the contracting officer. The contractor
shall not commit or permit any act which will interfere with the
performance of work by any other contractor or by Government employees.
970.5204-44 (Reserved)
48 CFR 970.5204-45 Termination.
The following clause is suggested for use in management and operating
contracts:
(a) This contract shall continue until -------- unless sooner
terminated in accordance with the provisions which follow:
(1) The performance of work under this contract may be terminated by
the Government in whole, or from time to time in part, (i) whenever the
contractor shall default in performance, and shall fail to cure the
fault or failure within such period as the contracting officer may allow
after receipt from the contracting officer or a notice specifying the
fault or failure, or (ii) whenever, for any reason, the contracting
officer shall determine any such termination is for the best interest of
the Government. Termination of the work hereunder shall be effected by
delivery of a notice of termination specifying whether termination is
for default of the contractor or for the convenience of the Government,
the extent to which performance of work under the contract shall be
terminated, and the date upon which such termination shall become
effective. Any such termination shall be without prejudice to any claim
which either party may have against the other. If, after notice of
termination under the provisions of paragraph (a)(1)(i) of this section,
it is determined for any reason that the contractor was not in default,
such notice of default shall be deemed to have been issued pursuant to
paragraph (a)(1)(ii) of this section, and the rights and obligations of
the parties hereto shall in such event be governed accordingly.
(2) Upon receipt of notice of termination, in accordance with (1)
above, the contractor shall, to the extent directed in writing by the
contracting officer, discontinue the terminated work and the placing of
orders for materials, facilities, supplies, and services in connection
therewith, and shall proceed, if, and to the extent required by the
contracting officer, to cancel promptly and settle with the approval of
the contracting officer, existing orders, subcontracts, and commitments
insofar as such orders, subcontracts, and commitments pertain to this
contract.
(b) Upon the termination of this contract, full and complete
settlement of all claims of the contractor and of DOE arising out of
this contract shall be made as follows:
(1) The Government shall have the right in its discretion to assume
sole responsibility for any or all obligations, commitments, and claims
that the contractor may have undertaken or incurred, the cost of which
are allowable in accordance with the provisions of this contract; and
the contractor shall, as a condition of receiving the payments mentioned
in this article, execute and deliver all such papers and; take all such
steps as the contracting officer may require for the purpose of fully
vesting in the Government any rights and benefits the contractor may
have under or in connection with such obligations, commitments, or
claims.
(2) The Government shall treat as allowable costs all expenditures
made in accordance with and allowable under the clause entitled
''Allowable Costs and Fixed Fee,'' not previously so allowed or
otherwise credited for work performed prior to the effective date of
termination, together with expenditures as may be incurred for a
reasonable time thereafter with the approval of, or as directed by, the
contracting officer.
(3) The Government shall treat as allowable costs, to the extent not
included in paragraph (b)(2) of this section, the costs of settling and
paying claims arising out of the termination of work under orders,
subcontracts, and commitments as provided in paragraph (a)(2) of this
section.
(4) The Government shall treat as allowable costs the reasonable
costs of settlement, including accounting, legal, clerical, and other
expenses reasonably necessary for the preparation of settlement claims
and supporting data with respect to the termination of the contract and
for the termination and settlement of orders and subcontracts
thereunder, together with such further expenditures made by the
contractor after the date of termination for the protection or
disposition of Government property as are approved or required by the
contracting officer; provided, however, that if the termination is for
default of the contractor, there shall not be included any amount for
preparation of the contractor's settlement proposal.
(5) If performance of work under this contract is terminated in whole
by the Government, the fixed fee of the contractor shall be prorated to
and including the effective date of such termination. In addition, if
the termination is for the convenience of the Government, the contractor
shall be paid a fixed fee in an amount to be agreed upon as compensation
for its services in closing out the work under this contract after the
effective date of such termination. The additional fixed fee is to be
negotiated as soon as practicable after service of notice of
termination, shall take into account the estimate of the cost of the
services and managerial effort to be rendered under this clause after
the effective date of termination, and shall be provided for in a
supplement or amendment to this contract prior to final settlement
hereunder. Pending agreement as to the amount of such fee, the
contractor shall diligently proceed with the performance of the services
required under this clause. No additional fee will be paid if the
contract is terminated due to the default of the contractor. In the
event of a partial termination by the Government, an equitable
adjustment shall be made in the fixed fee if such termination results in
a material decrease in the level of the contractor's management effort.
Any failure to agree on the right to or the amount of any adjustment
shall be deemed a dispute within the purview of the clause hereof
entitled ''Disputes.''
(6) The obligation of the Government to make any of the payments
required by this clause or any other provisions of this contract shall
be subject to any unsettled claims in connection with this contract
which the Government may have against the contractor.
(c) Prior to final settlement, the contractor shall furnish a release
as required in the clause entitled ''Payments and Advances'' and account
for Government-owned property as may be required by the contracting
officer: provided, however, that unless the contracting officer
requires an inventory, the maintenance and disposition of the records of
Government-owned property in accordance with the clause entitled
''Accounts, Records and Inspection'' shall be accepted by the
contracting officer as full compliance with all requirements of this
contract pertaining to an accounting for such property.
970.5204-48 (Reserved)
48 CFR 970.5204-50 Cost and schedule control systems.
See 952.212-73.
970.5204-51 (Reserved)
48 CFR 970.5204-52 Foreign travel.
See 952.247-70.
48 CFR 970.5204-53 Contractor employee travel discounts.
Insert the contract clause at 952.251-70 when the circumstances
described in 951.7002 apply.
(54 FR 17738, Apr. 25, 1989)
48 CFR 970.5204-54 Basic fee and award fee.
(a) Basic Fee and Award Fee. It is herewith agreed that a basic fee
and an award fee, to be determined in accordance with the provisions of
this clause, are available for payment in accordance with the clause of
this contract entitled Payments and Advances.
(b) Fee Negotiations. Prior to the beginning of each fiscal year
under this contract, or other appropriate period as mutually agreed
upon, the contracting officer and contractor shall enter into
negotiation of a basic and award fee. This contract shall be modified
at the conclusion of each negotiation to reflect the negotiated amount
for the basic fee and to identify the available award fee amount. It is
herein agreed the award fee amount shall be assigned to evaluation
periods six months in duration. If the parties are unable to agree on a
reasonable fee, the contracting officer shall unilaterally determine the
basic fee and the available award fee, subject to the clause of this
contract entitled Disputes.
(c) Determination of Award Fee Earned.
(1) The Government shall, at the conclusion of each specified
evaluation period, evaluate the contractor's performance for a
determination of award fee earned.
(2) For this contract, the Government Fee Determination Official
(FDO) will be (insert title of FDO). The contractor agrees that the
determination as to the amount of award fee earned will be made by the
Government FDO and such determination is binding on both parties and
shall not be subject to appeal under the ''Disputes'' clause or any
other appeal clause.
(3) The evaluation of contractor performance shall be in accordance
with the Performance Evaluation Plan described in subparagraph (d),
below. The contractor shall be promptly advised in writing of the
determination, and the reasons why the award fee was or was not earned.
While it is recognized that the basis for determination of the fee shall
be the evaluation by the Government, in accordance with the Performance
Evaluation Plan, the FDO may also consider any information available to
him or her which relates to the contractor's performance of contract
requirements. In the event that the contractor's performance is
considered unacceptable in any area of contract performance which is
specified in the Performance Evaluation Plan, even if no weight or fee
is specifically assigned to the particular performance area, the FDO may
at his/her discretion determine the contractor's overall performance to
be unacceptable, and accordingly may withhold the entire award fee for
the evaluation period.
(4) An award fee cycle usually consists of two six-month award fee
periods in a single fiscal year. Unearned award fee may be carried over
within a single fiscal year, or other two-period fee negotiation cycle,
as may have been agreed upon. The FDO may, at his/her sole discretion,
specify in a fee determination that award fee not earned during the
first evaluation period of a two-period fee cycle may be allocated to
the second fee period in that fee cycle. The contractor shall not,
however, be entitled to earn any of this ''carry-over'' fee if its
overall performance in the latter evaluation period does not reflect an
improvement over the prior evaluation period. Overall performance
evaluations in the second period which are equal to or the same as those
in the first period shall not be considered as improvements providing
entitlement to the carry-over portion of the award fee pool. If the
single negotiation of a basic and the resulting award fee amount (fee
cycle) will be for more than two evaluation periods, unearned award fees
in any one of the evaluation periods established by that negotiation may
be carried over only to the next period covered by that negotiation.
Fees unearned under one fee cycle may not be carried forward to another
fee cycle.
(d) Performance Evaluation Plan. (1) The Government shall establish
unilaterally a Performance Evaluation Plan upon which the determination
of the amount of award fee earned shall be based. Such Plan shall
include the criteria to be considered under each area evaluated and the
percentage of award fee available for each area. A copy of the Plan
shall be provided to the contractor thirty (30) calendar days prior to
the start of an evaluation period.
(2) The Performance Evaluation Plan will set forth the criteria upon
which the contractor will be evaluated for performance relating to any
technical, schedule, management, and/or cost objectives selected for
evaluation.
(3) The Performance Evaluation Plan may, consistent with the contract
statement of work, be revised unilaterally by the Government at any time
during the period of performance. Notification of such changes shall be
provided to the contractor at least thirty (30) calendar days prior to
the start of the evaluation period to which the change will apply.
(e) Contractor Self-Assessment. Following each evaluation period,
the contractor shall submit a self-assessment within (Insert Number)
calendar days after the end of the period. This self-assessment shall
address both the strengths and weaknesses of the contractor's
performance during the evaluation period. Where deficiencies in
performance are noted, the contractor shall describe the actions planned
or taken to correct such deficiencies and avoid their recurrence. The
FDO will review the contractor's self-assessment as part of his/her
evaluation of the contractor's management during the period. An
unrealistic self-assessment will result in lower award fee
determinations. The contractor will not be penalized for a realistic
self-assessment, although deficiencies noted by the contractor may be
reflected in the Government's evaluation. The self-assessment itself
will not be the basis for the award fee determination.
(f) Schedule for Award Determinations. The FDO shall issue the final
award fee determination in accordance with a schedule set forth in the
Performance Evaluation Plan. However, a determination must be made
within sixty (60) calendar days after the receipt by the contracting
officer of the contractor's self-assessment discussed in paragraph (e),
above. If the determination is delayed beyond that date, the contractor
shall be entitled to interest on the determined award fee amount at the
rate established by the Secretary of the Treasury under section 12 of
the Contract Disputes Act of 1978 (41 U.S.C. 611) that is in effect on
the payment date. This rate is referred to as the ''Renegotiation Board
Interest Rate,'' and is published in the Federal Register semiannually
on or about January 1 and July 1. The interest on any late award fee
determination amount will accrue daily and be compounded in 30-day
increments inclusive from the first day after the schedule determination
date through the actual date the determination is issued. That is,
interest accrued at the end of any 30-day period will be added to the
determined amount of award fee and be subject to interest if not paid in
the succeeding 30-day period.
(56 FR 28108, June 19, 1991)
48 CFR 970.5204-55 Ceiling on certain liabilities for profit making
contractors.
(a) The profit making contractor's potential financial obligations
under the unallowable Avoidable Cost provisions contained in
970.5204-13(e)(12) and (e)(17)(iv), 970.5204-14(e)(10) and (e)(15)(iv),
970.5204-21(j), and 970.5204-31, (including (1) noncriminal fines and
penalties, (2) losses which are avoidable losses or other third party
claims including the costs of defense of such litigation, (3) additional
programmatic expenses which are Avoidable Costs, and (4) the costs of
contractor responsibility for lost or damaged Government property) shall
be limited to the amount of the actual award fee earned and the actual
basic fee earned under the contract (or the amount of 6-months of fixed
fee in the case of cost-plus-fixed fee contracts) in the evaluation
period when the event or events which led to the imposition of the
incurrence of costs or liabilities or the imposition of fines and
penalties occurred. This limitation or ceiling does not apply to any
other categories of unallowable costs, nor shall any other unallowable
costs be utilized in the calculation of that ceiling for any evaluation
period. In the case of continuing activities of the contractor which
occur over a number of evaluation periods and result in costs or
liabilities described above, the potential financial obligation of the
contractor shall be limited to the amount of the actual award fee earned
and the actual basic fee earned in the single evaluation period when the
incident(s) or event(s) (the negligent act(s)) giving rise to the
contractor's disallowed cost or expense took place. If it is not
possible to relate or reasonably allocate particular activities to
individual evaluation periods, the financial obligation of the
contractor shall be limited to the amount of the actual award fee earned
and actual basic fee earned in the evaluation period when the amount of
such nonreimbursable costs or liabilities were finally determined. If
the determination as to which award fee period(s) the incident or
activity occurred resulting in the unallowable avoidable costs is made
following the expiration of the contract, or the contractor is otherwise
replaced, the actual award fee earned and the actual basic fee earned
for the last evaluation period that the contract was in effect shall be
utilized after deducting disallowed Avoidable Costs that were previously
charged to the contractor during that period.
(b)(1) The financial obligations of a subcontractor, at any tier or
level, under the profit making contractor's and subcontractor's
unallowable Avoidable Cost provisions contained in 970.5204-13(e)(12)
and (e)(17)(iv), 970.5204-14(e)(10) and (e)(15)(iv), 970.5204-21(j), and
970.5204-31, (including (i) noncriminal fines and penalties, (ii) losses
which are avoidable losses or other third party claims including the
costs of defense of such litigation, (iii) additional programmatic
expenses which are Avoidable Costs, and (iv) the costs of subcontractor
responsibility for lost or damaged Government property) shall be limited
to the cumulative amount of the fee or profit actually earned under the
subcontract, whether cost-plus or fixed-price, during the six-month
contractor evaluation period when the event or events which were caused
by the subcontractor led to the incurrence of costs or liabilities or
the imposition of fines and penalties occurred, Provided, however, If
the contractor cannot reasonably determine the amount of profit earned,
the amount of profit earned shall be deemed to be 15% of the subcontract
price, prorated to the applicable six-month award fee period, which
shall be the liability cap for such period. This limitation or ceiling
does not apply to any other categories of unallowable costs. In the
case of continuing activities of the subcontractor which occur over a
number of contract evaluation periods and result in costs or liabilities
described above, the potential financial obligation of the subcontractor
shall be limited to the amount of the fee or profit earned in the single
contractor evaluation period when the incident(s) or event(s) (the
negligent act(s)) giving rise to the subcontractor's disallowed cost or
expense took place. If it is not possible to relate or reasonably
allocate particular activities to individual contractor evaluation
periods, the financial obligation of the subcontractor shall be limited
to the amount of the actual fee or profit earned, or the percentage of
the subcontract price designated by the Contracting Officer during the
evaluation period when the amount of such nonreimbursable costs or
liabilities were finally determined. If the determination as to which
award fee period(s) the incident or activity occurred resulting in the
unallowable avoidable costs is made following the expiration of the
contract, or the subcontractor is otherwise replaced, the actual fee or
profit earned, or the percentage of the contract price designated by the
Contracting Officer for the last contractor evaluation period that the
subcontract was in effect shall be utilized, after deducting disallowed
Avoidable Costs that were previously charged to the subcontractor during
that period.
(2) The contractor shall cause all subcontractors to be responsible
for all costs and liabilities described in this paragraph (b), up to the
amount of the actual fee or profit earned in the pertinent contractor
evaluation period. The contractor shall cause all subcontractors to
agree to provide a reasonable financial guarantee to assure that the
subcontractor will have sufficient resources to satisfy all costs and
liabilities up to the amount of the actual fee or profit earned based
upon the highest amount of profit or fee received by the subcontractor
during the last two contractor evaluation periods. Alternatively, at
the election of the subcontractor, at the end of each evaluation period
the contractor may retain a percentage of the fee or profit earned as
reasonably determined to be sufficient by the contractor to protect the
interests of the Government. With respect to new subcontracts or
subcontracts that have been in effect for less than one year (or two
six-month evaluation periods), the guarantee shall be in an amount that
the contractor reasonably determines to be in the best interest of the
Government, but not to exceed the amount of fee or profit available for
the upcoming evaluation period. The financial responsibility of the
subcontractor and the guarantee or retainage of the subcontractor shall
remain in effect for one year after the termination or expiration of the
subcontract, at which time any financial guarantee, including retainage,
shall be returned to the subcontractor.
(3) Where the amount of fee or profit earned by a subcontractor
during the contractor's evaluation period is not sufficient to pay in
full all Avoidable Costs incurred during that period, the excess amount
of these costs will be reimbursed or otherwise treated as allowable
costs to the contractor by DOE; Provided, however, That the contractor
shall be responsible for the payment of such Avoidable Costs in excess
of the subcontractor's ceiling if such costs and/or damages were caused
in whole or in part by the negligence of the contractor; Provided,
further, That, in any case, the contractor's obligation to pay Avoidable
Costs incurred by the negligence of the subcontractor is limited to the
extent that (i) the subcontractor's profit for that evaluation period
was insufficient to pay the Avoidable Costs in full and (ii) the
contractor's ceiling on Avoidable Costs liabilities specified in this
subsection and in subparagraph (a) of this section has not been reached
for that evaluation period. The contractor shall not require a
subcontractor, at any tier or level, to provide financial guarantees for
the payment of Avoidable Costs beyond the profit or fee earned by the
subcontractor in the relevant contractor's six-month evaluation period.
(4) The contractor shall cause appropriate provisions to implement
the subcontractor liability ceiling and financial responsibility
obligation contained in this subparagraph (b) to be inserted in every
subcontract, at any tier or level, entered into with the contractor or
subcontractor on, before or after the effective date of this contract,
Provided, however, That such subcontracts shall provide that to the
extent that Avoidable Costs incurred by the negligence of the
subcontractor are reimbursed by the Government to the contractor, the
contractor shall reimburse its subcontractor for all such costs to the
extent that such subcontractor has already paid, or incurred without
reimbursement, such costs; Provided further That all of such
subcontracts shall provide that the financial guarantees provided by
subcontractors to contractors shall remain in effect for not more than
one year after termination or expiration of such subcontracts.
(c) The contractor shall be responsible for all costs and liabilities
described in subparagraphs (a) and (b) of this section, up to the amount
of the actual award fee earned and the actual basic fee earned in the
pertinent evaluation period. The contractor agrees to provide, in such
form and amount as shall be satisfactory to the Contracting Officer, a
financial guarantee to assure that the contractor will have sufficient
resources to satisfy all costs and liabilities up to the amount of the
actual award fee earned and the actual basic fee earned for a period
based upon the highest amount of fee received over the last four
evaluation periods. Alternatively, at the election of the contractor,
at the end of each evaluation period the Contracting Officer may retain
a percentage of the award fee and basic fee as determined to be
sufficient by the Contracting Officer to protect the interests of the
Government. With respect to new contracts or contracts that have been
in effect for less than two years (or four six-month evaluation
periods), the guarantee shall be in an amount that the Contracting
Officer determines to be in the best interest of the Government, but not
to exceed the amount of award fee and basic fee available for the
upcoming evaluation period. The financial responsibility of the
contractor and the guarantee or retainage of the contractor shall remain
in effect for one year after the termination or expiration of the
contract, at which time any financial guarantee, including retainage,
shall be returned to the subcontractor. Any costs or liabilities to
third parties beyond the limitations described above would be reimbursed
subject to the other provisions of the contract governing cost
reimbursement. The contractor's potential financial risk for
proceedings costs under the Major Fraud Act of 1988, 41 U.S.C. 256, or
the civil or criminal penalties provisions of the Price-Anderson
Amendments Act of 1988, 42 U.S.C. 2273, 2282, will not be limited except
as provided in regulations implementing those provisions.
(56 FR 28108, June 19, 1991)
48 CFR 970.5204-56 Determining avoidable costs.
(a)(1) Avoidable Costs are those costs specified in
970.5204-13(e)(12) and (e)(17)(iv), 970.5204-14(e)(10) and (e)(15)(iv),
970.5204-21(j), and 970.5204-31 which are incurred by the contractor
and/or its subcontractors, in carrying out the terms and conditions of
the contract when:
(i) The work is clearly within the sole and exclusive control of the
contractor and/or subcontractor personnel at any tier or level; and
(ii) The increased costs or expenses result from the negligence or
wilful misconduct of the contractor or subcontractor personnel at any
tier or level; and
(iii) DOE is not responsible in any way for the act or omission which
resulted in the additional costs.
(2) The cost and expenses of litigation, settlements, and related
litigation costs (including attorneys fees), fines, penalties, judgments
and liabilities resulting from administrative findings, and damage to,
or loss of, Government property when carrying out well understood
non-experimental work and damage to, or loss of, Government property as
the result of theft, embezzlement or other unauthorized use are
unallowable to the extent that the acts or omissions resulting in these
costs are Avoidable Costs as defined in paragraph (1) above. Such costs
are unallowable except as specifically authorized by the Contracting
Officer and within the scope of work in the contract.
(b) For purposes of this section, negligence is the failure to
exercise that standard of care which a reasonable and prudent person
would exercise under the same or similar circumstances in an identical
or similar environment.
(c) Avoidable Costs shall not include the cost of losses or damages
incurred by the contractor as a result of the acts or omissions of
employees who, during the phase-in period of a new contract, the
contractor is required to employ as a result of assuming the management
of a DOE facility. The length of this phase-in period shall be XX
months. It shall in no event, however, exceed twelve months. The
contractor is always responsible for the acts or omissions of any
employee hired directly by the contractor.
(56 FR 28110, June 19, 1991)
48 CFR 970.5204-56 Subpart 970.70 -- Use of DOE Facilities for Work for Others
48 CFR 970.7000 Mission-oriented solicitation.
Contractors shall be required to promptly advise the DOE contracting
officer of any advance notices of, or solicitations for, requirements
which would logically involve DOE facilities or resources operated or
managed by the contractor, received from other agencies pursuant to FAR
34.005. Management and operating contracts shall provide that the
contractor shall not respond or otherwise propose to participate in
response to the requirements of such solicitations unless the contractor
shall have first obtained the written approval of the DOE manager of the
field activity having cognizance over the contract. Such approval shall
not be given except in compliance with DOE directives and with the
concurrence of the appropriate Senior Program Official.
48 CFR 970.7000 Subpart 970.71 -- Management and Operating Contractor
Purchasing
Source: 53 FR 24232, June 27, 1988, unless otherwise noted.
48 CFR 970.7101 General.
(a) The Department of Energy contracts for the management and
operation of DOE facilities, the design and production of nuclear
weapons, energy research and development, and the performance of other
services. These management and operating (M&O) contractors have been
selected for their technical and managerial expertise and are expected
to bring to bear these technical and managerial skills to accomplish the
significant Federal mission(s) described in their contracts with, and
work plans approved by, DOE.
(b) Purchasing done by management and operating contractors is one
area in which the particular skills of the contractors will be brought
to bear in order to more readily accomplish the contractors' assigned
missions. The contracting procedures of the contractor's organization,
therefore, form the basis for the development of a purchasing system and
methods that will comply with its contract with DOE and this subpart.
(c) Competition is fundamental to M&O contractor purchasing.
(d) The Federal Acquisition Regulation generally is not directly
applicable to the purchasing activities of management and operating
contractors. There are, however, certain Federal laws, Executive Orders
and Federal and DOE regulations which do pertain to and apply to
purchases by management and operating contractors and thus should be
reflected in the contractor's purchasing system and methods. These
requirements are identified in this subpart.
(53 FR 24232, June 27, 1988; 54 FR 1288, Jan. 12, 1989)
48 CFR 970.7102 DOE responsibility.
(a) In the Department of Energy, overall responsibility for the
oversight of the performance of management and operating contractors,
including their purchasing activities, rests with the cognizant DOE
contracting activity and, in particular, the Head of Contracting
Activity (HCA). Contracting officers are responsible for management and
operating contractors' conformance with this subpart and their
contracts, and for determining whether those purchasing activities
provide timely and effective support to DOE programs. (For the purposes
of this subpart, the term ''Head of Contracting Activity'' includes his
or her duly authorized representative except for the HCA actions
identified in 970.7104-8(a), 970.7104-9(b), 970.7104-22(c),
970.7104-28(f)(1), and 970.7108(a), which actions are nondelegable.
Further, when the term ''contracting officer'' is used in this subpart,
it refers to that individual who has been delegated authority by the HCA
for the day-to-day oversight of a management and operating contractors'
purchasing activities.)
(b) In carrying out their overall responsibilities, HCAs shall:
(1) Require management and operating contractors to maintain written
descriptions of their individual purchasing system and methods and
further require that, upon award or extension of the contract, the
entire written description be submitted to the contracting officer for
review and acceptance;
(2) Require that any changes to the management and operating
contractor's written description having any substantive impact upon the
contractor's purchasing system and methods be submitted to the
contracting officer for review and acceptance prior to issuance;
(3) Ensure review of individual purchasing actions of certain types
or above stated dollar levels by the contracting officer to assure that
management and operating contractors implement DOE policies and
requirements, as defined in this subpart, in accordance with the
contractor's accepted system and methods; and
(4) Ensure that periodic appraisals (e.g. Contractor Purchasing
System Review (CPSR) and Surveillance Review) of the contractor's
management of all facets of the purchasing function are performed by the
contracting officer in accordance with established policies. (See
Subpart 944.3 and 970.7108).
(c) In performing the reviews required by paragraphs (b) (1) and (2)
and the appraisals of paragraph (b)(4) of this section, HCAs shall
assure that contracting officers determine that the contractors' written
systems and methods are consistent with this subpart and the provisions
of their contracts.
48 CFR 970.7103 Policies.
The following shall apply to the purchasing practices of management
and operating contractors. Within these policies it is expected that
purchasing systems and methods will vary according to the types and
kinds of purchases to be made, the mission needs of the particular
programs and facilities, and the experiences, methods, and practices of
the contractor. In the development of their purchasing systems and
methods, contractors are expected to use their experience, expertise,
and initiative consistent with this subpart.
(a) The purchasing systems and methods used by management and
operating contractors should be well defined, consistently applied, and
should follow good business practices appropriate for the requirement
and dollar amount of the purchase involved.
(b) Management and operating contractors' purchasing systems should
produce the proper balance between the government's decision to use the
experience and expertise of these contractors in managing and operating
its programs and facilities and the objectives and the attendant
requisites of the Federal acquisition process. In evaluating the proper
balance between commercial purchasing practices and the requisites of
the Federal acquisition process a concept referred to as the ''Federal
norm'' has evolved. The Federal norm refers to those fundamental
principles embodied in law and regulation that should be reflected in
contractor purchases even though such purchases are not Federal
procurements.
(c) DOE has identified the following specific tenets of Federal
procurement policy that must be addressed in a contractor's purchasing
system:
(1) Purchases must be effected in the manner that will be most
advantageous in meeting the overall mission with price, quality, and
timely and efficient performance of the contract considered.
(2) Although the Competition in Contracting Act of 1984 (Pub. L.
98-369) is not applicable to management and operating contractor
purchases, the contractor's purchasing system and methods must ensure
competitive subcontracting consistent with the contractor's efficient
performance of the contractual mission and the nature of supplies and
services purchased. The objective is to provide fair and effective
competition through application of the principles set out in this
section.
(3) The contractor's purchasing system and methods shall ensure that
for purchases in excess of those discussed at 970.7103(b)(4) of this
subpart, all competitors are treated fairly and equitably by:
(i) Describing the requirement as completely as possible and in
adequate time to promote competition. (Supplies and services should be
purchased through the use of specifications, standards or descriptions
which clearly and accurately describe the supplies or services to be
purchased);
(ii) Preparing solicitation documents setting forth the contract
terms and conditions, describing the requirement clearly, accurately,
and completely, but avoiding unnecessarily restrictive specifications or
requirements;
(iii) Stating in the solicitation the factors that will comprise the
basis for award, i.e., lowest evaluated price or a combination of price
and technical merit. (In the event of the latter the solicitation shall
state the importance of technical considerations versus cost
considerations and note any criterion(ia) that is of significantly
greater or lesser importance than other criterion);
(iv) Conducting evaluations and making awards in accordance with the
stated factors and the descriptions of their importance;
(v) Publicizing the solicitation by (A) distribution to a reasonable
number of prospective offerors and (B) use, as appropriate, of such
means as plan rooms, journals, expressions of interest or other public
notices, or the Commerce Business Daily particularly where there are not
adequate numbers of qualified sources in the local area;
(vi) Providing equal access to solicitation data and information;
(vii) Offering sufficient numbers of qualified entities the
opportunity to propose, and tailoring the method of carrying out the
competition such that there is every expectation that proposals will be
received in numbers that will substantiate that the cost or price is in
the Government's best interest;
(viii) Allowing sufficient time for preparation and submission of
proposals;
(ix) Providing for a uniform time for submission;
(x) Taking precautions to assure that the contents of each proposal
are maintained in confidence to prevent technical transfusion and
technical leveling;
(xi) Handling responses in a manner to assure fairness and
impartiality, and communicating, where necessary to clarify
solicitations, with all firms that received a copy of the solicitation
or, after the due date, all firms submitting a proposal;
(xii) Conducting negotiations, as appropriate, in such a way as to
enhance competition and ensure the understanding of substantive aspects
of the offerors' proposals. (A management and operating contractor's
purchasing system and methods may provide for receipt of amended
proposals following communication with a select group of offerors deemed
most likely to receive the award in accordance with the expressed
evaluation criteria; for award without communication; and for
clarification of ambiguous portions of an offeror's proposal not as a
part of negotiations);
(xiii) Awarding only to capable offerors whose offers conform to the
solicitation. (Awards shall not be made to firms or individuals listed
on the GSA Consolidated List of Debarred, Suspended, and Ineligible
Contractors or the DOE List of Debarred, Suspended, Ineligible or
Voluntarily Excluded Awardees without prior approval of the DOE
contracting officer); and
(xiv) Ensuring that access authorizations to classified information
will not be a limiting factor in obtaining competition except where time
will not permit securing additional authorizations.
(4) Small purchases (those valued at $25,000 or less or other value
that may be approved by the HCA) should be made by methods designed,
considering the award value, to:
(i) Obtain fair and reasonable prices,
(ii) Reduce administrative costs of making such purchases to the
minimum required in order to establish the propriety of placing the
order at the price paid with the supplier concerned, and
(iii) Improve opportunities for small and small disadvantaged
business concerns to obtain a fair proportion of awards.
(5) A fair proportion of supplies and services shall be purchased
from small business concerns, small disadvantaged business concerns,
labor surplus area concerns, and woman-owned business concerns.
Publication of appropriate requirements in the Commerce Business Daily
is one method that may be used to promote the participation of such
concerns.
(6) Price or cost analyses shall be performed consistent with the
principles of FAR Subpart 15.8 and Subpart 915.8 of this regulation.
(7) Allowable costs for cost reimbursable subcontracts are to be
determined in accordance with the cost principles of FAR Part 31,
appropriate for the type of organization to which the subcontract is to
be awarded, as supplemented by Part 931. Allowable costs in the
purchase or transfer from contractor-affiliated sources shall be
determined in accordance with 970.7105 and 970.3102-15(b).
(8) The contractor's purchasing system and methods shall establish a
dollar value above which the basis for each non-competitive purchase
must be clearly documented and a dollar value above which
non-competitive purchases must be supported by separate justifications
prepared by the requesting organization, and approved at appropriate
levels in the contractor's purchasing organization.
(9) The selection of the type of contract to be used should be based
on consideration of the nature of the supplies and services required and
other circumstances surrounding the purchase. The
cost-plus-percentage-of-cost method of contracting shall not be used in
any event.
(53 FR 24232, June 27, 1988; 54 FR 1288, Jan. 12, 1989)
48 CFR 970.7104 Conditions of purchasing by management and operating
contractors.
This section and the entire subpart provide the standard against
which the cognizant DOE contracting officer shall evaluate the
purchasing system and methods of a management and operating contractor.
The following specific provisions, some of which are implementations of
statute or applicable Government or DOE policies, pertain to purchasing
by DOE management and operating contractors. To the extent these
provisions allow for the exercise of discretion by management and
operating contractors, the contracting officer will use as the standard
of compliance the exercise of good business judgment by the management
and operating contractor in pursuit of carrying out the contractual
mission. Where compliance with this section requires the use of clauses
from the FAR or DEAR, the contracting officer shall assure that the
purchasing system and methods of the M&O contractor ensure that the
relationship between the contractor and subcontractor is clearly
described and that references to the Government and the contracting
officer are changed, as appropriate, to refer to the contractor.
48 CFR 970.7104-1 Contingent fees.
The policies and requirements of FAR Subpart 3.4 shall be applied to
the purchasing activities of management and operating contractors. See
970.5203-1 for the amendment to the clause at FAR 52.203-5.
48 CFR 970.7104-2 Record retention requirements.
The record retention requirements for cost-reimbursement type
subcontractors to management and operating contractors shall be in
accordance with the clause at 970.5204-9.
48 CFR 970.7104-3 Acquisition of Utility Services.
When authorized by DOE (subject to appropriate delegation) to acquire
utility services, such acquisition shall be in compliance with DOE
Directives as explained at 970.0803.
(56 FR 41966, Aug. 26, 1991)
48 CFR 970.7104-4 Leasing of Property, Plant or Equipment.
Notwithstanding any prior purchasing system acceptance or thresholds
that may be approved by the HCA, management and operating contractors
are not permitted to enter into any lease for property, plant or
equipment (land and/or depreciable assets) when the lease must be
classified and accounted for as a capital lease under generally accepted
accounting principles, unless the decision to enter into a capital
leasing arrangement is specifically authorized and approved in advance
by the DOE. Should the contractor determine that a capital lease
arrangement may result in a cost advantage for the DOE, or is otherwise
in the best interest of the DOE, the contractor must submit
documentation justifying, on a case-by-case basis, each such decision,
including a lease-versus-purchase analysis, to the DOE and request that
an authorizing letter of approval be issued.
(55 FR 41540, Oct. 12, 1990)
48 CFR 970.7104-5 Leasing of motor vehicles.
Management and operating contractors shall abide by the provisions of
FAR 8.11 and 908.11 in the leasing of motor vehicles.
48 CFR 970.7104-6 Strategic and critical materials.
Management and operating contractors who use strategic and critical
materials shall fulfill their requirements in accordance with 908.70.
48 CFR 970.7104-7 Purchases of special items.
(a) Purchase of the following items shall be in accordance with the
provisions of the DEAR and FPMR, as shown.
(b) The management and operating contractor's purchasing system and
methods may provide for the acquisition of items (3), (4), and (5) of
the table from non-Federal Supply Schedule sources in those
circumstances in which items of the same or greater quality may be
purchased at a lesser price, or there is otherwise an inability to meet
a critical program schedule.
48 CFR 970.7104-8 Purchasing alternative determinations.
(a) Management and operating contractors shall provide in their
purchasing systems and methods, using FPMR 41 CFR 101-25.5 as a guide,
for a system to determine whether required equipment should be purchased
or leased. The system based upon these guidelines shall establish
appropriate thresholds for application (as approved by the HCA) of
lease-versus-purchase determinations and shall be used in making such
determinations:
(i) At time of original acquisition,
(ii) When lease renewals are being considered, or
(iii) At other times as circumstances warrant.
(b) The contracting officer shall assure that the management and
operating contractor provides in its purchasing system and methods for a
determination of whether to purchase certain goods or services or
provide those goods or services within its own organization. While cost
may be a significant factor, the determination may also consider such
things as efficiency of performance, scheduling, classification and
security, control of production or performance, and maintenance of
management and operating contractor capabilities.
48 CFR 970.7104-9 Qualifications requirements.
(a) Management and operating contractors are authorized to use
Qualified Bidders Lists (QBL), Qualified Material Lists (QML) and
Qualified Products Lists (QPL), developed by executive agencies pursuant
to FAR Subpart 9.2, for the purchase of goods or services for which
list(s) was developed.
(b) Heads of Contracting Activities may authorize management and
operating contractors to develop QBLs, QMLs, or QPLs for critical
applications; however, management and operating contractors shall not
unnecessarily restrict potential suppliers from qualification testing
and inclusion among qualified vendors. Management and operating
contractors shall provide in their purchasing systems and methods for
periodic review of the items or sources on these lists to assure the
need to continue the restrictions.
48 CFR 970.7104-10 Organizational conflicts of interest.
(a) Management and operating contractors shall abide, by 909.5 in
their purchase of supplies and services as if their subcontractors,
including consultants, at any tier were performing the work as prime
contractors to DOE.
(b) The cognizant contracting officer is the individual authorized to
determine whether there exists, with regard to a proposed subcontract,
little or no likelihood of an organizational conflict of interest.
(c) In obtaining disclosure of relevant interests in appropriate
potential subcontracts, management and operating contractors may allow
proposers to submit their responses directly to the cognizant
contracting officer.
48 CFR 970.7104-11 Cost of pricing date.
(a) Management and operating contractors are required to:
(1) Obtain certified cost or pricing date prior to the:
(i) Award of a negotiated subcontract when the subcontract price is
expected to exceed $100,000; or
(ii) Modification of any subcontract when the price adjustment is
expected to exceed $100,000, unless unrelated and separately priced
changes, for which certified cost or pricing data would not otherwise be
required, are included.
(2) Incorporate appropriate contract provisions that provide for the
reduction of a negotiated subcontract price by any significant amount
that the subcontract price was increased because of submission of
subcontractor defective cost or pricing data, at any tier.
(b) The exemptions from certified cost or pricing data identified by
FAR 15.804-3 shall also apply in implementing the above cost or pricing
data requirements.
(c) The clause at 970.5204-24 shall be included in management and
operating contracts requiring the flowdown of the provision contained
therein to subcontractors at all tiers as described therein.
48 CFR 970.7104-12 Small business and small disadvantaged business
concerns.
(a) The policies and procedures in the following FAR sections and
subpart shall be applied to the purchasing activities of management and
operating contractors in their unilateral initiation of small business
set-asides: 19.301, 19.302, 19.502-2, 19.502-3, 19.508(b), 19.508(c),
19.508(d), and Subpart 19.7 except FAR 19.705-7 and the implementing
clause at 52.219-16 (prescribed by FAR 19.708(b)(2), which need not be
included in subcontracts issued by management and operating contractors.
(b) Protests received by management and operating contractors
regarding small business status shall be referred to the Small Business
Administration through the cognizant DOE contracting officer. Inquiries
as to whether a given concern qualifies as a disadvantaged business will
be forwarded through the cognizant DOE contracting officer to the SBA
for response.
(c) Purchases of $25,000 or less awarded through small purchase
procedures shall be reserved exclusively for small businesses where
there is a reasonable expectation that bids, competitive as to price,
quality and delivery, will be obtained from two or more responsible
small business concerns.
(d) Purchase by a management and operating contractor of construction
estimated to cost $3 million or less, including new construction, and
repair and alteration of structures, shall be required to be set aside
on a class basis for small business concerns. When, in the judgment of
the contractor, a particular acquisition falling within these dollar
limits is determined to be unsuitable for a small business set-aside,
notification shall be made to the DOE contracting officer. Upon
obtaining the approval of the DOE contracting officer, the contractor
may proceed to process the acquisition on an unrestricted basis. For
acquisition of construction in excess of $3 million, small business
set-aside preferences should be considered on a case-by-case basis.
(e) Management and operating contractors may provide in their
purchasing systems and methods for the setting aside of requirements for
small disadvantaged businesses, provided there are sufficient such
qualified entities available to assure effective competition, and
provided that the cost or price of the successful offer is found by the
M&O contractor to be fair and reasonable.
(f) In pursuit of the objective of M&O purchasing of a fair
proportion of supplies and services from the concerns described at
970.7103(b)(5), the HCA may authorize the use of innovative means after
approval by the Procurement Executive and the DOE Office of Small and
Disadvantaged Business Utilization.
(g) Management and operating contractors shall prepare quarterly
reports on utilization of small business, small disadvantaged business,
and women-owned small business in accordance with the directions of the
DOE contracting officer.
(49 FR 12063, Mar. 28, 1984, as amended at 56 FR 41966, Aug. 26,
1991)
48 CFR 970.7104-13 Labor surplus area concerns.
(a) Management and operating contractors are authorized to
unilaterally initiate labor surplus area (LSA) set-asides where there is
a reasonable expectation that bids or proposals will be obtained from a
sufficient number of responsible LSA concerns so as to ensure that
awards will be made at fair and reasonable prices. The priorities set
forth in FAR 19.504 are to be utilized in determining the type of
set-aside to be employed.
(b) Protests received or questions raised by contractors regarding
LSA status shall be handled in consultation with the Department of Labor
through the DOE contracting officer.
(c) LSA set-aside purchases made by management and operating
contractors shall be reported quarterly in a form satisfactory to the
DOE contracting officer.
48 CFR 970.7104-14 Convict labor.
The provisions of FAR Subpart 22.2 shall apply to purchases by
management and operating contractors.
48 CFR 970.7104-15 Contract Work Hours and Safety Standards Act (other
than construction contracts).
The requirements of FAR Subpart 22.3 shall apply to purchases by
management and operating contractors to the same extent and under the
same conditions such requirements apply to direct DOE procurements.
48 CFR 970.7104-16 Labor standards for contracts involving construction.
The requirements of FAR Subpart 22.4 apply to subcontracts involving
construction awarded by DOE management and operating contractors to the
same extent that they would if the subcontract had been directly awarded
by DOE. Subpart 922.4 provides guidance, including examples of work
situations, to assist in determining the applicability of these
standards. The Davis-Bacon Act is deemed to apply to purchases by
management and operating contrators in accordance with 970.2273.
48 CFR 970.7104-17 Walsh-Healey Public Contracts Act.
The requirements of FAR Subpart 22.6 and this section shall apply to
purchases by management and operating contractors to the same extent and
under the same conditions such requirements apply to direct DOE
procurements.
48 CFR 970.7104-18 Equal employment opportunity.
The equal employment opportunity provisions of FAR Subpart 22.8 and
Subpart 922.8, of this chapter, including E.O. 11246 and 41 CFR Part 60,
are applicable to subcontracts awarded by DOE management and operating
contractors.
48 CFR 970.7104-19 Service Contract Act.
(a) It is the policy of DOE that subcontracts awarded by management
and operating contractors are subject to the Service Contract Act to the
same extent and under the same conditions as contracts awarded directly
by DOE.
(b) Subcontracts awarded by management and operating contractors
shall include the applicable clause in FPR Temporary Regulation No. 76
or successor FAR coverage with such modifications as would otherwise be
appropriate had this clause been included in the prime contract.
48 CFR 970.7104-20 Special disabled and Vietnam Era veterans.
The provisions of FAR Subpart 22.13 shall apply to purchases by
management and operating contractors.
48 CFR 970.7104-21 Application of environmental and occupational safety
and health programs.
Contracting officers shall assure that management and operating
contractors address environmental and occupational safety and health
concerns in covered purchases in accordance with 970.2303. Management
and operating contractors shall include the clauses at 970.5204-2,
970.5204-26, 952.223-72, and 952.223-75 in appropriate subcontracts and
provide for flowdown to appropriate lower tier subcontracts.
48 CFR 970.7104-22 Buy American.
(a) Management and operating contractors are required, as reflected
in the contract clauses prescribed at 970.7103-3 and 970.7103-5, to
comply with the provisions of the Buy American Act. The list at FAR
25.108(d) contains excepted articles, materials, and supplies which have
been determined to be unavailable in the United States in sufficient and
reasonably available commercial quantities of a satisfactory quality.
(b) Determination of nonavailability under FAR 25.102 may be made by
the DOE contracting officer responsible for the administration of the
M&O contract.
(c) When the management and operating contractor's purchasing system
and methods have been approved after a review in accordance with
970.7102(b), the Head of the Contracting Activity may authorize the
contractor to make determinations of nonavailability for individual
items under individual procurement actions. Each authorization shall be
in writing and shall specify a dollar value limit for the aggregate of
domestically unavailable items in individual procurement actions.
Authorizations for dollar value limits in excess of $25,000 require the
prior concurrence of the Procurement Executive. Each authorization
shall also specify the effective date, the activity, the division or
facility authorized to make the determination, the period of
effectiveness, and any special conditions or requirements.
48 CFR 970.7104-23 Patents, data, and copyrights.
Contracting officers shall assure that management and operating
contractors' purchasing systems and methods provide for distribution of
patent and data rights and copyrights in their purchases in accordance
with 970.27.
48 CFR 970.7104-24 Bonds and insurance.
The contracting officer shall assure that management and operating
contractors provide in their purchasing systems and methods for
obtaining bonds (i.e. bid, performance and payment bonds) from
subcontractors as provided in this subsection and in a manner that will
assure adequacy and legal sufficiency of all types of bonds and the
acceptability of sureties in accordance with this subsection to protect
the interests of the United States. The contractor's purchasing system
and methods shall treat the obtaining of insurance in accordance with
FAR Subpart 28.3 and DEAR Subpart 928.3.
(a) Performance bonds -- (1) Construction subcontracts. A
performance bond on Standard Form 25 (modified to name the M&O
contractor as well as the United States of America as obligees) shall be
required for all fixed price and unit-price construction subcontracts in
excess of $25,000 and subcontracts under cost-reimbursement type
subcontracts. The penal amounts shall be determined as set forth in FAR
28.102(a).
(2) Other than construction subcontracts. Situations which may
warrant the requiring of performance bonds in addition to those listed
in FAR 28.103-2(a) are:
(i) Where doubt exists as to the financial or technical ability of
likely suppliers.
(ii) Where the subcontractor's talent is overly concentrated in a few
key personnel whose illness or departure could seriously impair the
subcontractor's ability to perform the proposed work.
(iii) Where other commitments of the subcontractor might delay
performance.
(iv) Where a delay in performance of the proposed work might disrupt
other operations of the management and operating contractor and impair
its overall efficiency; or
(v) Where the item being manufactured is a component for another
article and is required by a particular date in order to avoid delay in
delivery of the end product.
(b) Payment bonds -- (1) Construction subcontracts. A management and
operating contractor shall be required to obtain from the subcontractor
a payment bond on Standard Form 25A, modified to name the management and
operating contractor, as well as the United States of America, as
obligees for all fixed price and unit-price construction subcontracts in
excess of $25,000. The management and operating contractor shall be
required to include such a requirement in its cost-reimbursement
construction subcontracts in excess of $25,000. The penal amounts shall
be determined as set forth in FAR 28.102-2.
(2) Other than construction subcontracts. The management and
operating contractor may make a determination that it is necessary on an
individual subcontract to require payment bonds in connection with other
than construction work. Whenever the management and operating
contractor has reason to believe that work under a proposed action might
be delayed because of concern over the credit standing of a prospective
subcontractor, it should consider the advisability of requiring a
payment bond.
(c) Corporate co-sureties. More than one corporate surety may be
accepted as surety upon recognizance, stipulation, bond, or undertaking
in connection with either construction or other contracts, provided that
in no case will the liability of any such co-surety exceed the maximum
penal sum in which the corporate surety is qualified to any one
obligation. On bonds covering contracts other than construction
contracts, where the amount of the bond is greater than the limitation
of the corporate surety, the latter may reinsure with a corporation on
the acceptable list of corporate sureties having the required
underwriting capacity. Reinsurance agreements are not acceptable in
connection with construction contracts. Corporate co-sureties need not
obligate themselves for the full amount of the bond. Each corporate
surety may, by setting forth the limit of its liability in the bond as a
definite and specified sum, limit such liability on the condition that
each co-surety bind itself ''jointly and severally'' for the purpose of
allowing a joint action or actions against any or all of them.
48 CFR 970.7104-25 Indemnification.
Contracting officers shall assure that management and operating
contractors provide in their purchasing systems and methods for the
treatment of nuclear hazards indemnification in subcontracts in
accordance with paragraphs (f) and (g) of 970.2870. No subcontractor may
be otherwise indemnified except with the prior approval of the
Procurement Executive.
48 CFR 970.7104-26 Taxes.
(a) Contracting officers should assure that tax matters are
appropriately treated in their review and approval of management and
operating contractors' purchasing systems and methods and in their
review and approval of individual subcontracts by the contractor.
(b) The purchasing system and methods of a management and operating
contractor shall require:
(1) The inclusion of a clause similar to that at 970.5204-23 in
cost-type subcontracts of any tier where the prime contract or
higher-tier subcontract(s) are cost-type which clause will require the
subcontractor to take certain actions with regard to nonpayment,
payment, protest, or other treatment of specific taxes.
(2) The inclusion of an appropriate tax clause in all fixed-price
purchase orders and subcontracts and should contain provisions covering
all tax matters which may require special consideration.
48 CFR 970.7104-27 Audit of subcontractors.
(a) Contracting officers shall assure that management and operating
contractors provide in their purchasing systems and methods for:
(1) periodic postaward audit of cost-reimbursement subcontractors at
all tiers and
(2) Audits, where necessary, to provide a valid basis for pre-award
cost or price analysis.
Responsibility for determining the costs allowable under each
cost-reimbursement subcontract remains with the management and operating
contractor or next higher-tier subcontractor. Management and operating
contractors' purchasing systems and methods shall provide, in
appropriate cases, for the timely involvement of the management and
operating contractor and the DOE contracting officer in resolution of
questions of subcontract cost allowability.
(b) Where audits of subcontracts of any tier are required,
arrangements may be made to have the cognizant Federal agency perform
the audit of the subcontract. These arrangements shall be made
administratively between DOE and the other agency involved and shall
provide for the cognizant agency to audit in an appropriate manner in
light of the magnitude and nature of the costs of the subcontract. The
contracting officer shall assure that the audit results properly reflect
the application of the applicable cost principles of the subcontract
(See 970.7103 (b)(7)). In no case, however, shall these arrangements
preclude determination by the DOE contracting officer of the
allowability or unallowability of subcontractor costs claimed for
reimbursement by the management and operating contractor.
48 CFR 970.7104-28 Construction and architect-engineer (A-E) contracts.
(a) Scope. Contracting officers shall assure that management and
operating contractors provide in their purchasing systems and methods
for acquisition of A-E services and construction in conformance with
this subsection. FAR Part 36 and DEAR Part 936 shall be used as guides.
(b) Independent estimates. A detailed, independent estimate of costs
shall be prepared for all construction work to be subcontracted under
management and operating contracts. The services of an
architect-engineer, the management and operating contractor, another
management and operating contractor, or a construction contractor other
than the constructor may be used, as appropriate, in the preparation of
the independent estimate.
(c) Specifications. Management and operating contractors shall
assure that specifications for construction are prepared in accordance
with the DOE publication entitled ''General Design Criteria Manual''
(DOE Order 6430.1, dated December 12, 1983, or successor version) in
preparing specifications for construction work.
(d) Agreement for rental of construction equipment. Management and
operating contractors shall provide in their purchasing systems and
methods for the rental of construction equipment from a third party in
accordance with the agreement outlined at 936.7102.
(e) Guidelines for the award of architect-engineer subcontracts. The
Brooks Act, Pub. L. 92-582, establishes the policy and procedures
necessary to assure that selection of A-E contractors by the Federal
Government is based solely upon the qualifications of competing A-E
firms. That Act does not directly govern the award of A-E subcontracts
by DOE management and operating contractors. HCAs shall assure that the
purchasing systems and methods of management and operating contractors
reflect the essence of the Federal policy by providing for selection of
A-E subcontractors based primarily upon proposers' qualifications,
however, this does not preclude the consideration of other factors,
including cost or price, in the selection of A-E subcontractors.
(f) Prevention of conflict of interest -- (1) Limitations on
architect-engineer/construction services. Combinations of subcontracts
for architect-engineer and construction services, which may result in
self-inspection of construction work, tend to prevent a subcontractor
from rendering unbiased decisions, or create difficulties in segregating
costs between subcontracts, and should be avoided. Unless otherwise
authorized by the HCA, the following relationships shall not be
established within any subcontract(s) awarded by a management and
operating contractor involving the same firm or affiliated companies:
(i) A subcontract or combination of subcontracts for both
architect-engineer and construction services on the same construction
project. Should the HCA authorize the M&O to award a subcontract(s) to
a firm or affiliates under which it is to be responsible for both design
and construction services, Title III inspection services shall be
performed by another organization approved by DOE.
(ii) Both a cost-reimbursement subcontract and fixed-price
subcontract for different projects if any portion of the work under
either subcontract will be performed concurrently in the same general
location. This restriction applies to subcontracts for construction
services, architect-engineer services, or construction and
architect-engineer services.
(iii) The provisions of paragraph (f)(1)(i) of this section shall not
preclude the award of a single subcontract for the delivery of a
discrete facility, e.g., ''turnkey contract,'' so long as the
subcontractor assumes all liability for defects in design and
construction and consequential damages. Such subcontracts should
provide for periodic inspection of the construction of the facility by
the management and operating contractor or DOE or both.
(2) Limitation on inspection. (i) Inspection services may be
performed by the architect-engineer responsible for the design.
Inspection services may not be purchased from a fixed-price construction
subcontractor with respect to its own work. Under cost-reimbursement
type subcontracts where the construction subcontractor and
architect-engineer subcontractor are the same, some degree of
self-inspection may be permitted, but shall not constitute final
inspection and acceptance by the Government.
(ii) When one subcontractor is to inspect the work of another, the
inspecting subcontractor will be given written instructions by the M&O
contractor defining its responsibilities and stating that it is not
authorized to modify the terms and conditions of the subcontract, direct
any additional work, waive any requirements of the subcontract, or
settle any claims or disputes. Copies of the instructions will be given
to the subcontractor who is to be inspected, with a request to
acknowledge receipt on one copy and return it to the M&O contractor. In
this manner, both subcontractors are on notice as to the authority and
limitations on the authority of the inspecting subcontractor.
48 CFR 970.7104-29 Quality assurance.
Contracting officers shall assure that management and operating
contractors provide in their purchasing systems and methods for
inspection and acceptance and the use of an appropriate clause. Such
provisions shall provide no less protection for the Government than is
provided by the contract articles in prime contracts.
48 CFR 970.7104-30 Termination.
(a) The termination clause included in management and operating
contracts gives the Government the right to terminate the contract for
convenience or default and provides that after receipt of a termination
notice the contractor shall, to the extent requested by the contracting
officer, cancel existing orders, subcontracts and commitments. Also,
management and operating contractors may find it necessary to terminate
subcontracts either for default or convenience in the course of
exercising responsibilities for program or project performance under the
contract rather than as a result of termination of the prime contract.
Therefore, contracting officers shall assure that the purchasing systems
and methods of management and operating contractors provide for the
inclusion of an appropriate termination clause or clauses in their
subcontracts. The termination clauses set forth at FAR 52.249-1 through
52.249-14 may be used as guides in the development of subcontract
termination clauses.
(b) When subcontracts are terminated as a result of the termination
of all or a portion of the prime contract, contractors shall settle with
subcontractors in conformity with the policies and principles relating
to settlement of prime contracts in FAR Subparts 49.1, 49.2, and 49.3.
When subcontracts are terminated for reasons other than termination of
the prime contract, the contractor shall settle such subcontract
terminations in general conformity with the policies and principles in
FAR Subparts 49.1, 49.2, and 49.3, and 49.4. In any event, each such
termination settlement shall be documented. Those which require
approval by the Government pursuant to prime contract requirements or
approved procedures must be supported by accounting data and other
information as may be directed by the DOE contracting officer. Also,
the settlement must be in conformity with the provisions of the
subcontract and consistent with provisions of the management and
operating contract.
(53 FR 24232, June 27, 1988; 54 FR 1288, Jan. 12, 1989)
48 CFR 970.7104-31 Authorization for subcontractors' use of Government
supply sources.
With the approval of the DOE contracting officer, management and
operating contractors may authorize cost-reimbursement type
subcontractors, where all higher tier subcontractors are
cost-reimbursement types, to acquire materials and services directly
from Government sources of supply in accordance with the requirements of
970.51 or the consent of agencies involved.
48 CFR 970.7104-32 Safeguarding classified information.
Contracting officers shall assure that management and operating
contractors provide in their purchasing systems and methods for the
inclusion in appropriate subcontracts of clauses consistent with
970.0404.
48 CFR 970.7104-33 Cost Accounting Standards.
The provisions of FAR Part 30 shall apply to purchases by management
and operating contractors.
48 CFR 970.7104-34 Clean air and water.
The provisions of FAR Subpart 23.1 shall apply to purchases by
management and operating contractors.
48 CFR 970.7104-35 Air transportation by U.S.-flag carriers.
The provisions of FAR Subpart 47.4 shall apply to purchases by
management and operating contractors.
48 CFR 970.7104-36 Acquisition of real property.
Management and operating contractors shall contract for the lease or
purchase of real property in accordance with 917.74.
48 CFR 970.7104-37 Management, acquisition, and use of information
resources.
Contracting officers shall assure that management and operating
contractors provide in their purchasing systems and methods, with regard
to the purchase of automatic data processing resources and
telecommunication facilities, services, and equipment, for review and
approval of requirements in ways that conform to the procedures
contained in applicable DOE orders (1360 series and 5300 series,
respectively).
48 CFR 970.7104-38 Privacy Act.
Management and operating contractors shall award and administer
applicable subcontracts in accordance with FAR Subpart 24.1.
48 CFR 970.7104-39 Officials not to benefit.
Mangement and operating contractors shall abide by the provisions of
FAR section 3.102 in the award of subcontracts.
(49 FR 12063, Mar. 28, 1984, as amended at 56 FR 41966, Aug. 26,
1991)
48 CFR 970.7104-40 Subcontractors reporting systems.
Contracting officers shall assure that management and operating
contractors provide in their purchasing systems and methods for the
flowdown of the cost and schedule control system requirement as provided
at 970.5204-50. In addition for subcontracts of lesser value, those
purchasing systems and methods shall provide for the receipt from
subcontractors of status, manpower, and financial information necessary
to comply with DOE requirements for financial and performance data for
subcontracts at all tiers.
48 CFR 970.7104-41 Employment of the handicapped.
The provisions of FAR Subpart 22.14 shall apply to purchases by
management and operating contractors.
48 CFR 970.7104-42 Unclassified controlled nuclear information.
Contracting officers shall assure that management and operating
contractors provide in their purchasing systems and methods for
treatment of unclassified controlled nuclear information in accordance
with 10 CFR Part 1017.
48 CFR 970.7104-43 Government property.
Contracting officers shall assure that management and operating
contractors provide in their purchasing systems and methods for the
identification, inspection, maintenance, protection, and disposition of
Government property in conformity with the policies and principles in
FAR 45, DEAR 945, the Federal Property Management Regulations, the DOE
Property Management Regulations, and their contracts.
48 CFR 970.7104-44 Foreign travel.
Contracting officers shall assure that management and operating
contractors provide in their purchasing systems and methods for DOE
approval consistent with the clause at 952.247-70 of foreign travel
under subcontracts.
48 CFR 970.7104-45 Anti-Kickback Enforcement Act of 1986.
Contracting officers shall assure that management and operating
contractor purchasing systems and methods provide for compliance in
subcontracting with the FAR Subpart 3.502.
48 CFR 970.7104-46 Setoff of assigned subcontract proceeds.
Contracting officers shall assure that the management and operating
contractors provide in their purchasing systems and methods that in
cases in which they have allowed a subcontractor to assign payments to a
financial institution, the assignment shall treat any right of setoff in
accordance with 932.803.
48 CFR 970.7104-47 Additional flowdown and extension provisions.
In addition to the clauses and provisions required to be included in
appropriate subcontracts awarded by management and operating
contractors, there are certain clauses the provisions of which require
flowdown or extension to subcontractors. These are:
Examination of Records by the Comptroller General 970.5203-2
Accounts, Records, and Inspection 970.5204-9
Printing 970.5204-19
Priorities, Allocations, and Allotments 970.5204-33
48 CFR 970.7105 Purchasing from contractor-affiliated sources.
(a) A management and operating contractor may purchase from sources
affiliated with the contractor (any division, subsidiary, or affiliate
of the contractor or its parent company) in the same manner as from
other sources, provided:
(1) The management and operating contractor's purchasing function is
independent of the proposed contractor-affiliated source;
(2) The same terms and conditions would apply if the purchase were
from a third party;
(3) Award is made in accordance with policies and procedures designed
to permit effective competition which have been approved by the
contracting officer (See 970.7101(c)). (This requirement for competition
shall not preclude acquisition of technical services from
contractor-affiliated entities where those entities have a special
expertise, and the basis therefor is documented.); and
(4) The award is legally enforceable where the entities are
separately incorporated.
(b) Subcontracts for performance of contract work itself (as
distinguished from the purchase of supplies and services needed in
connection with the performance of work) require DOE authorization and
may involve an adjustment of the contractor's fee, if any. If the
management and operating contractor seeks authorization to have some
part of the contract work performed by a contractor-affiliated source,
and that contractor's performance of that work was a factor in the
negotiated fee, DOE approval would normally require:
(1) That the contractor-affiliated source perform such work without
fee or profit, or
(2) An equitable downward adjustment to the management and operating
contractor's fee, if any.
(c) Determination on cost of money allowance as prescribed at FAR
31.205-10 shall be treated as follows:
(1) When a purchase from a contractor-affiliated source results from
competition and is in accord with provisions and conditions of
paragraphs (a)(1) through (a)(4) of this section, the
contractor-affiliated source may include cost of money as an allowable
element of the costs of its goods or services supplied to the
contractor; provided:
(i) The purchase is based on cost as set forth in 970.3102-15 and
(ii) The cost of money amount is computed in accordance with FAR
31.205-10 and related procedures (see 970.30).
(2) When a purchase from a contractor-affiliated source is made
non-competitively, cost of money shall not be considered an allowable
element of the cost of the contractor-affiliated source purchase.
48 CFR 970.7106 Procedures for handling mistakes relating to management
and operating contractor purchases.
(a) HCAs shall assure that management and operating contractors
include in their purchasing systems and methods provision for correction
of mistakes in bids and withdrawal of offers.
(b) Such systems shall make provision for correction of mistakes
before award only upon the offering by the bidder of clear and
convincing evidence of the mistake and the bid intended. Those systems
shall distinguish situations in which another bidder's lower bid may be
displaced if the correction were to be allowed.
(c) The systems shall deal with mistakes after award and shall result
in rescission or reformation of the contract only upon a clear and
convincing showing of mutual mistake.
(d) The systems shall allow withdrawal of a bid if there is
sufficient evidence to establish a mistake but otherwise does not meet
the necessary tests for correction, stated in paragraphs (b) and (c) of
this section.
(e) In all cases before any remedial action is allowed, it shall be
determined that the mistake was made in good faith and that the
interests of the United States are not prejudiced.
(f) Corrections of mistakes or other remedial actions taken pursuant
to this section shall be documented by a written statement setting forth
the circumstances and basis for such action and shall be made a part of
the subcontract file.
48 CFR 970.7107 Protest of management and operating contractor
procurements.
(a) The General Accounting Office (GAO) policies on protests state
that GAO will consider subcontract-level protests when the subcontracts
are ''by'' or ''for'' the Government. The term ''for'' has generally
been defined by the GAO as including acquisitions by management and
operating (M&O) contractors.
(b) The Department of Energy will also consider protests of
acquisitions of M&O contractors.
(c) Upon receipt or notice of a protest filed with the GAO, or with
the Department against an M&O contractor acquisition, the cognizant DOE
contracting activity shall assure that the M&O contractor is aware of
such protest and prepare or coordinate the preparation by the contractor
of a report for submittal to the GAO or the Department official deciding
the protest. Such a report shall be prepared in accordance with the
applicable procedures in FAR Part 33 and Part 933 of the DEAR.
(d) Assistance shall be obtained from the local DOE Counsel in the
preparation of the report and any supplementary documents setting forth
the position of the contracting activity relative to a protest.
(e) Upon receiving notice of a protest to the Department involving an
M&O procurement action prior to award, the contracting activity shall
direct that award not be made prior to resolution of such protest unless
an HCA request to make award, concurred in by counsel, using the
criteria of 933.103(a), and endorsed by the program secretarial officer,
is approved by the Procurement Executive. If notice of a protest is
filed with the DOE contracting officer within 10 days after award, the
contracting activity shall contact the Business Clearance Division,
Headquarters, for guidance as to continuation of performance or issuance
of a stop work order.
(f) Since the bid protest provisions of the Competition in
Contracting Act of 1984 (Pub. L. 98-369) (CICA) only apply to
acquisitions by Federal executive agencies, the CICA ''stay'' provisions
(sections 3553 (c) and (d) of Pub. L. 98-369 and cost recovery
provisions (section 3554(c), Pub. L. 98-369) do not apply to protests
lodged with the GAO that involve M&O contractor acquisitions.
Nevertheless, upon receiving notice of a protest to the GAO involving an
M&O acquisition whether prior to or after award, the contracting
activity shall immediately contact the Business Clearance Division,
Headquarters, for guidance on suspending award or suspending
performance.
(g) The General Services Board of Contract Appeals hears subcontract
level protests involving the purchase of Automatic Data Processing
Equipment (ADPE), as defined at 40 U.S.C. 759(a)(2)(A), only in cases in
which the prime contractor is acting as a purchasing agent for the
Government. Should a protest be lodged against an M&O's purchase of
ADPE, upon receiving notice of the protest, the cognizant DOE
contracting officer shall promptly notify local counsel and the Office
of the Assistant General Counsel for Procurement and Finance,
Headquarters (AFCPF). The Department's position on such subcontract
level protests shall be coordinated with the AGCPF. The contracting
officer, promptly after receipt of a protest, and the decision(s) of the
GSBCA, shall also furnish a copy thereof with related pertinent
correspondence to the Business Clearance Division, Headquarters.
48 CFR 970.7108 Review and approval.
(a) Heads of Contracting Activities shall establish thresholds by
subcontract type and dollar level for the review and approval of
proposed subcontracting actions by each management and operating
contractor under their cognizance. Such thresholds may not exceed the
authority delegated to the Head of the Contracting Activity by the
Procurement Executive. In establishing these review and approval
thresholds, the Heads of Contracting Activities should consider such
factors as the following:
(1) The nature of work to be performed under the management and
operating contract;
(2) The size, experience, ability, reliability, and organization of
the management and operating contractor's purchasing function;
(3) The internal controls, procedures, and organizational stature of
the management and operating contractor's purchasing function; and
(4) Policies with respect to such reviews and approvals established
by the Procurement Executive.
(b) Prior approval shall be required for the subcontracting of any
work a contractor is obligated to perform under a contract entered into
under section 41, entitled Production of Special Nuclear Material, of
the Atomic Energy Act of 1954, as amended.
(c) Heads of Contracting Activities shall take such action as may be
required to insure compliance with the procedure for purchasing from
contractor-affiliated sources or the purchase of specific items, or
classes of items, which by the terms of the contract may require DOE
approval.
(d) The Heads of Contracting Activities may raise or lower the review
and approval thresholds established pursuant to paragraph (a) of this
section at any time. Such action may be considered upon the periodic
review of the contractor's purchasing system, but in any case those
adjusted thresholds may not exceed the approval authority delegated to
the Head of the Contracting Activity by the Procurement Executive.
(e) Department of Energy approvals of specific proposed purchases
pursuant to this subpart shall communicate that such approval does not
relieve the management and operating contractor of any obligation under
its prime contract with DOE; is given without prejudice to any rights
or claims of the Government thereunder; creates no obligation on the
part of the Government to the subcontractor, and is not a
predetermination of the allowability of costs to be incurred under the
subcontract.
(f) Contracting officers shall assure that management and operating
contractors establish and maintain subcontract files which contain those
documents essential to present an accurate and adequate record of all
purchasing transactions.
(g) Contracting officers shall assure that management and operating
contractors document purchases in writing, setting forth the information
and data used in determining that the purchases are in the best interest
of the Government. The scope and detail of this documentation shall be
consistent with the nature, dollar value, and complexity of the
purchase.
(h) Heads of Contracting Activities will assure that the contracting
activity establishes and maintains files of the documents associated
with the review and approval of subcontract actions subject to DOE
review and approval. Those files shall include, among other necessary
documentation, an appraisal of the proposed action by the contracting
activity and a copy of the approving or disapproving document forwarded
to the management and operating contractor, containing a listing of any
deficiencies, a listing of any required corrective actions, any
suggestions, or other relevant comments.
48 CFR 970.7109 Advance notification.
(a) Pursuant to section 304(b) of the Federal Property and
Administrative Service Act of 1949, as amended (41 U.S.C. 254(b))
contracting officers shall assure that the written description of the
management and operating contractor's purchasing system and methods
provides for advance notice to the DOE contracting officer of the
proposed award of the following specified types of subcontracts, except
as stated in paragraph (b) of this section:
(1) Cost reimbursement-type subcontracts of any award value; and
(2) Fixed price-type subcontracts which exceed $25,000; and
(3) Purchases from contractor-affiliated sources over a value
established by the HCA.
(b) Pursuant to section 602(d)13 of the Act (40 U.S.C. 474(13))
referred to in paragraph (a) of this section, the advance notification
requirement for the types of purchases listed in paragraphs (a) (1) and
(2) of this section shall not apply to subcontracts relating to
functions derived from the Atomic Energy Commission.
(c) The advance notice shall contain, as a minimum, a description of
work, estimated cost, type of contract or reimbursement provisions, and
extent of competition, or justification for a noncompetitive purchase
procurement. The contracting officer may at any time request additional
information that must be furnished promptly and prior to award of the
subcontract.
48 CFR 970.7110 Nuclear material transfers.
(a) Management and operating contractors, in preparing contracts or
other agreements in which monetary payments or credits depend on the
quantity and quality of nuclear material, shall be required to assure
that each such contract or agreement contains a:
(1) Description of the material to be transferred;
(2) Provision specifying the method by which the quantities are to be
measured and reported;
(3) Provision specifying the procedures to be used in resolving any
differences arising as a result of such measurements;
(4) Provision for the use of an independent third party as an umpire
to settle unresolved differences in the analytical samples; and
(5) Provision specifying in detail which party shall bear the costs
of resolving a difference and what constitutes such costs.
(b) The provisions providing for resolution of measurement
differences must be such that resolution is always accomplished, while
at the same time minimizing any advantage one party may have over the
other.
48 CFR 970.7110 PART 971 -- REVIEW AND APPROVAL OF CONTRACT ACTIONS
Sec.
971.000 Scope of part.
48 CFR 970.7110 Subpart 971.1 -- Headquarters Review and Notification
Requirements
971.100 Scope of subpart.
971.101 Requirements -- general.
971.102 Requirement -- long-term contracts.
971.103 Documentation submittals.
48 CFR 970.7110 Subpart 971.2 -- Contracting Activity Review
Requirements
971.200 Scope of subpart.
971.201 Requirements.
971.202 Responsibilities.
971.203 Review functions.
48 CFR 970.7110 Subpart 971.3 -- Procurement Management Systems Reviews
971.300 Scope of subpart.
971.301 Review of procurement management systems.
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Source: 49 FR 12107, Mar. 28, 1984, unless otherwise noted.
48 CFR 971.000 Scope of part.
This part sets forth the administrative requirements for review and
approval of certain solicitations and contract awards and a notification
of Headquarters procurement system reviews.
48 CFR 971.000 Subpart 971.1 -- Headquarters Review and Notification Requirements
48 CFR 971.100 Scope of subpart.
This subpart establishes a requirement for Headquarters review of
certain solicitations and contract awards made by DOE contracting
activities.
48 CFR 971.101 Requirements -- general.
Solicitations and contract awards which are: (a) In excess of the
authority delegated to Heads of Contracting Activities; (b) likely to
provoke unusual public interest; or, (c) of a new or unusual nature
shall be submitted to the Procurement Executive or designee for
appropriate review and approval. Contract actions are those actions
relating to the letting of contracts, subcontracts, agreements with
other governmental agencies, and subsequent modifications, extensions,
and settlements of terminations thereof. Questions of contract policy
or procedure which arise in the course of negotiation and administration
of such contract actions shall be submitted for advance Headquarters
review and approval. Additional clearance requirements regarding
utility service acquisitions are at 908.307.
(56 FR 41966, Aug. 26, 1991)
48 CFR 971.102 Requirement -- long-term contracts.
Heads of Contracting Activities shall notify the Controller, with a
copy to the Procurement Executive, or any intent to utilize the
long-term contract authority provided by subsection U, section 161 of
the Atomic Energy Act of 1954, as amended by Pub. L. 85-681 (72 Stat.
633). Such advance notice should be provided at an early stage of
planning on any such proposed contract action.
48 CFR 971.103 Documentation submittals.
(a) When contract awards require review and/or approval by
Headquarters, (See 971.101) the following documentation is to be
submitted to the Business Clearance Division, Headquarters, at the times
set forth below:
(1) Prior to negotiations. Prior to the start of formal negotiations
concerning contract awards the following documents are required for
review:
(i) Five copies of the prenegotiation plan and draft contract (six
copies in the case of operating and on-site service contracts which
contain a personnel appendix).
(ii) If applicable, one copy of the Justification For Other Than Full
and Open Competition shall be provided.
(iii) One copy of documentation (including audits and technical
evaluation of costs) to support a pricing action.
(2) After completing negotiation. If there were significant
departures from the objectives of the prenegotiation plan, or new and
significant issues were developed which were not addressed in the
prenegotiation plan, one copy of the post negotiation summary shall be
submitted for Headquarters' review and approval. In the event all of
the prenegotiation objectives were substantially met, one information
copy is to be submitted.
(3) Prior to a sealed bid award. (i) Four copies of the successful
bid.
(ii) Copy of proposed contract.
(iii) Record of bid opening and selection.
(iv) Copy of the solicitation.
(4) After completing a sealed bid award. (i) Four copies of an award
memorandum which documents that the award was made to the responsible,
responsive bidder whose bid is most advantageous to the Government,
price and other factors considered as provided in FAR 14.407.
(ii) One copy of any other documents the contracting officer believes
would benefit the Headquarters review. (List of documents required for
contract file are cited at FAR 4.803(a)).
(b) When solicitations require review and approval by Headquarters,
two copies of the solicitation shall be submitted to the Business
Clearance Division, Headquarters, in sufficient time prior to the
planned release to allow a comprehensive review.
(c) The following information should also be provided with the
documentation submitted to Headquarters:
(1) Name and telephone number of the cognizant Headquarters program
official.
(2) The supporting documentation should include a copy of the local
independent review, if any, conducted in accordance with 971.203.
(49 FR 12107, Mar. 28, 1984, as amended at 52 FR 38427, Oct. 16,
1987; 56 FR 41966, Aug. 26, 1991)
48 CFR 971.103 Subpart 971.2 -- Contracting Activity Review Requirements
48 CFR 971.200 Scope of subpart.
This subpart sets forth the administrative requirement for an
independent Contracting Activity review of contracts to be awarded by
that activity and subcontracts to be awarded by a prime or operating and
management contract under a cost-reimbursement contract.
48 CFR 971.201 Requirements.
Prime contracts and subcontracts under cost-reimbursement contracts
shall be reviewed, based on dollar thresholds to be established by Heads
of Contracting Activities.
48 CFR 971.202 Responsibilities.
Each Head of Contracting Activity shall establish procedures,
providing for an independent review by that activity prior to award of
proposed contract and subcontract actions and to review termination
settlements.
48 CFR 971.203 Review functions.
Responsibility for conducting the independent review of contract and
subcontract actions shall be assigned to a contract review board or
where it is impracticable to establish a contract review board, under
appropriate alternate independent review procedures. The mode of
conduct of the review is not prescribed herein in order to permit
discretionary judgment in determining the depth to which significant
areas are examined. The results of the review shall be documented
showing the scope and extent of the review and written recommendations
submitted to Heads of Contracting Activities (or to such other approving
officials as may be appropriate) on each proposed contract or
subcontract action reviewed. In the event the approving official
departs from the recommendation of the review board, the basis for such
action shall be appropriately documented in the files.
48 CFR 971.203 Subpart 971.3 -- Procurement Management System Reviews
48 CFR 971.300 Scope of subpart.
This subpart advises Contracting Activites of the Headquarters
responsibility for oversight and review of Procurement Systems by
contracting activities.
48 CFR 971.301 Review of procurement management systems.
The Procurement Executive is responsible for establishing and
maintaining a program for the review of DOE procurement management
systems. Review will be conducted in accordance with the procedures
prescribed for that program. A review schedule will be published and
maintained. Each contracting activity will be notified at least 60 days
in advance of its review.
48 CFR 971.301 48 CFR Ch. 10 (10-1-91 Edition)
48 CFR 971.301 Department of the Treasury
48 CFR 971.301 CHAPTER 10 -- DEPARTMENT OF THE TREASURY
48 CFR 971.301 (Parts 1000 to 1099)
48 CFR 971.301 SUBCHAPTER E -- GENERAL CONTRACTING REQUIREMENTS
Part
Page
1033 Protests, disputes, and appeals
48 CFR 971.301
48 CFR 971.301 48 CFR Ch. 10 (10-1-91 Edition)
48 CFR 971.301 Department of the Treasury
48 CFR 971.301 SUBCHAPTER E -- GENERAL CONTRACTING REQUIREMENTS
48 CFR 971.301 PART 1033 -- PROTESTS, DISPUTES, AND APPEALS
48 CFR 971.301 Subpart 1033.1 -- Protests
1033.103 Protests to the Agency.
48 CFR 971.301 Subpart 1033.2 -- Appeals
1033.270 Treasury contract appeals.
Authority: 41 U.S.C. 418b (a) and (b), as delegated by Department of
the Treasury Order 101-30 and Treasury Directive 12-11.
48 CFR 971.301 Subpart 1033.1 -- Protests
48 CFR 1033.103 Protests to the Agency.
(a) Policy. It is the Department's policy to resolve protests in an
informal manner whenever possible. Protesters are strongly encouraged
to address their concerns to the contracting officer prior to resorting
to litigation or other formal, external means of resolution. The
objectives of the following procedures are to resolve agency protests
effectively, to help build confidence in the Department's procurement
system, to reduce the need to file protests at GAO or GSBCA, and to
provide both the Department and the protester maximum information
regarding their respective positions.
(b) Procedures. (1) Agency protest may be submitted by interested
parties to the contracting officer, who will normally be designated in
FAR provision 52.233-2 of the solicitation.
(2) Protests based on alleged improprieties in a solicitation which
are apparent prior to bid opening or the closing date for receipt of
initial proposals shall be filed prior to bid opening or the closing
date for receipt of initial proposals. In negotiated acquisitions,
alleged improprieties which do not exist in the initial solicitation but
which are subsequently incorporated into the solicitation must be
protested not later than the next closing date for receipt of proposals
following the incorporation.
(3) In cases other than those covered in paragraph (b)(2) of this
section, protests shall be filed not later than 10 working days after
the basis of protest is known or should have been known, whichever is
earlier.
(4) Protests shall be in writing and shall include, as a minimum, the
following information:
(i) Name, address, and telephone number of the protestor;
(ii) Solicitation or contract number;
(iii) Detailed statement of the legal and factual grounds for the
protest, including copies of relevant documents;
(iv) Request for a ruling by the contracting officer to whom the
protest is submitted;
(v) Statement as to the form of relief requested.
(5) Protest submissions shall be concise, logically arranged, and
state sufficient grounds of protest. Failure to comply with any of the
above requirements may be grounds for dismissal of the protest. A
protester may request an informal conference with the contracting
officer, which may be granted at the latter's sole discretion.
(6) Upon receipt of an agency protest, the contracting officer shall:
(i) Immediately notify legal counsel and the Departmental Office of
Procurement (MMK) and provide each with a copy of the protest;
(ii) Prepare a report as prescribed in FAR 33.104(a)(2), except that,
if the contract action or contract performance continues after receipt
of the protest, the report shall include any determination prescribed in
FAR 33.103(a) or 1033.103(b)(9);
(iii) Obtain review of the protest response by legal counsel and
forward the protest response for MMK review and approval at least three
working days prior to the due date; and
(iv) Ensure that the protest response is received by the protester no
later than 25 working days after receipt of the protest.
(7) If the contracting officer and the protester agree on corrective
action, a report is not required; however, in addition to amending the
solicitation or taking other corrective action, the contracting officer
shall inform the protester in writing of the proposed corrective action
and shall obtain from the protester a written notice withdrawing the
protest. A copy of this notice and any amendment shall be provided to
MMK.
(8) If a written protest before award has been lodged with the
contracting officer, only the bureau chief procurement officer may make
the determination described in FAR 33.103(a). Prior to making an award
of a contract under the circumstances in FAR 33.103(a), the advice of
legal counsel shall be obtained.
(9) If a written protest after award has been lodged with the
contracting officer, the bureau chief procurement officer may authorize
contract performance notwithstanding the pending protest if he or she
makes a written determination that (i) performance of the contract is in
the Government's best interest, or (ii) urgent and compelling
circumstances significantly affecting interests of the United States do
not permit waiting for the protest decision. A copy of this
determination shall be forwarded to MMK.
(Approved by the Office of Management and Budget under control number
1505-0107)
(53 FR 12771, Apr. 19, 1988)
48 CFR 1033.103 Subpart 1033.2 -- Appeals
48 CFR 1033.270 Treasury contract appeals.
The General Services Administration Board of Contract Appeals has
been designated to serve as the authorized representative of the
Secretary of the Treasury in hearing, considering, and determining all
appeals of decisions of contracting officers filed by contractors
pursuant to Subpart 33.2 of the FAR (other than contracts of the
Comptroller of the Currency). Where ''agency Board of Contract Appeal''
appears in FAR Subpart 33.2 this shall be deemed to mean the General
Services Administration Board of Contract Appeals. Appeals of
contracting officer decisions under FAR Subpart 33.2 shall be governed
by the Rules of the General Services Administration Board of Contract
Appeals (48 CFR Chapter 61, (Part 6101)).
(50 FR 31844, Aug. 7, 1985; 51 FR 6741, Feb. 26, 1986)
48 CFR 1033.270 48 CFR Ch. 12 (10-1-91 Edition)
48 CFR 1033.270 Department of Transportation
48 CFR 1033.270 CHAPTER 12 -- DEPARTMENT OF TRANSPORTATION
48 CFR 1033.270 (Parts 1200 to 1299)
48 CFR 1033.270 SUBCHAPTER A -- GENERAL
Part
Page
1201 Federal Acquisition Regulations System
1202 Definitions of words and terms
1203 Improper business practices and personal conflicts of interest
1204 Administrative matters
48 CFR 1033.270
48 CFR 1033.270 SUBCHAPTER B -- COMPETITION AND ACQUISITION PLANNING
1205 Publicizing contract actions
1206 Competition requirements
1207 Acquisition planning
1208 Required sources of supplies and services
1209 Contractor qualifications
1210 Specifications, standards, and other purchase descriptions
1212 Contract delivery or performance
48 CFR 1033.270
48 CFR 1033.270 SUBCHAPTER C -- CONTRACTING METHODS AND CONTRACT TYPES
1213 Small purchase and other simplified purchase procedures
1214 Sealed bidding
1215 Contracting by negotiation
1216 Types of contracts
1217 Special contracting methods
48 CFR 1033.270
48 CFR 1033.270 SUBCHAPTER D -- SOCIOECONOMIC PROGRAMS
1219 Small business and small disadvantaged business concerns
1222 Application of labor laws to Government acquisitions
1223 Environment, conservation, and occupational safety
1224 Protection of privacy and freedom of information
1225 Foreign acquisition
48 CFR 1033.270
48 CFR 1033.270 SUBCHAPTER E -- GENERAL CONTRACTING REQUIREMENTS
1227 Patents, data and copyrights
1228 Bonds and insurance
1229 Taxes
1230 Cost accounting standards
1231 Contract cost principles and procedures
1232 Contract financing
1233 Protests, disputes, and appeals
48 CFR 1033.270
48 CFR 1033.270 SUBCHAPTER F -- SPECIAL CATEGORIES OF CONTRACTING
1234 Major system acquisition
1235 Research and development contracting
1236 Construction and architect-engineer contracts
1237 Service contracting
48 CFR 1033.270
48 CFR 1033.270 SUBCHAPTER G -- CONTRACT MANAGEMENT
1242 Contract administration
1243 Contract modifications
1244 Subcontracting policies and procedures
1245 Government property
1246 Quality assurance
1249 Termination of contracts
1250 Extraordinary contractual actions
48 CFR 1033.270
48 CFR 1033.270 SUBCHAPTER H -- CLAUSES AND FORMS
1252 Solicitation provisions and contract clauses
1253 Forms
48 CFR 1033.270
48 CFR 1033.270 48 CFR Ch. 12 (10-1-91 Edition)
48 CFR 1033.270 Department of Transportation
48 CFR 1033.270 SUBCHAPTER A -- GENERAL
48 CFR 1033.270 PART 1201 -- FEDERAL ACQUISITION REGULATIONS SYSTEM
48 CFR 1033.270 Subpart 1201.1 -- Purpose, Authority, Issuance
Sec.
1201.101 Purpose.
1201.102 Authority.
1201.103 Applicability.
1201.104 Issuance.
1201.104-1 Publication and code arrangement.
1201.104-2 Arrangement of regulations.
1201.104-3 Copies.
1201.105 OMB Approval under the Paperwork Reduction Act.
48 CFR 1033.270 Subpart 1201.2 -- Administration
1201.201 Maintenance of the FAR.
1201.201-1 The two councils.
1201.270 Amendment of regulation.
1201.270-1 Revisions.
1201.270-2 TAR Notices.
1201.270-3 Effective date.
1201.270-4 Numbering.
48 CFR 1033.270 Subpart 1201.3 -- Agency Acquisition Regulations
1201.303 Publication and codification.
1201-303-70 Administration regulations.
1201.304 Agency control and compliance procedures.
48 CFR 1033.270 Subpart 1201.4 -- Deviations From the FAR
1201.401 Definition.
1201.403 Individual deviations.
1201.404 Class deviations.
1201.470 Deviations to and waivers from the requirements of
Departmental orders related to acquisition.
48 CFR 1033.270 Subpart 1201.6 -- Contracting Authority and
Responsibilities
1201.601 General.
1201.602 Contracting officers.
1201.603 Selection, appointment, and termination of appointment.
1201.603-1 General.
Authority: Sec. 205(c) Federal Property and Administrative Services
Act, as amended 40 U.S.C. 486(c); 41 U.S.C. 255 et seq., 10 U.S.C. 2301
et seq., 41 U.S.C. 403 et seq., as amended by Pub. L. 98-369; 48 CFR
1.301; 49 CFR 1.49.
Source: 52 FR 44525, Nov. 19, 1987, unless otherwise noted.
48 CFR 1033.270 Subpart 1201.1 -- Purpose, Authority, Issuance
48 CFR 1201.101 Purpose.
(a) The Department of Transportation Acquisition Regulation (TAR), is
issued as Chapter 12, Title 48, the Federal Acquisition Regulations
System, to establish uniform acquisition policies and procedures within
the Department.
(b) The purpose of the TAR is to implement and supplement the Federal
Acquisition Regulation (FAR).
48 CFR 1201.102 Authority.
The TAR is prescribed by the Assistant Secretary for Administration
and the Senior Procurement Executive under a delegation of authority
from the Secretary.
48 CFR 1201.103 Applicability.
(a) The FAR and the TAR apply to all acquisitions within the
Department of Transportation except where expressly excluded in the FAR
or in this Regulation.
(b) The Maritime Administration may depart from the requirements of
the FAR and TAR as authorized by 40 U.S.C. 474(16), but shall adhere to
those regulations to the maximum extent practicable. Exceptions from
the FAR/TAR requirements shall be documented in administration
regulations or procedures, or in each contract file.
1201.104 Issuance.
48 CFR 1201.104-1 Publication and code arrangement.
(a) The TAR is published in:
(1) The Federal Register,
(2) Cumulated form in the Code of Federal Regulations (CFR), and
(3) A separate loose-leaf form.
(b) The TAR is issued as Chapter 12 of Title 48 of the CFR.
48 CFR 1201.104-2 Arrangement of regulations.
(a) General. The TAR conforms with the arrangement and numbering
system prescribed by FAR 1.104. The numbering illustrations at FAR
1.104-2(b) are equally applicable to the TAR.
(b) Numbering. (1) All coverage in the TAR that is unique to DOT
will use part, subpart, section and subsection numbers 70-89.
(2) All coverage in the TAR, other than that identified with a 70 or
higher number, implements the FAR and will bear the identical number
sequence and title of the FAR segment being implemented down to the
subsection level with the Department's ''12'' prefix (e.g., 1215.402
implements FAR 15.402).
48 CFR 1201.104-3 Copies.
Copies of the TAR in Federal Register and CFR form may be purchased
from the Superintendent of Documents, Government Printing Office (GPO),
Washington, DC 20402. Copies of the TAR in loose-leaf form are
distributed within DOT and may be obtained from the Chief, Procurement
Management Division, Office of the Secretary.
48 CFR 1201.105 OMB Approval under the Paperwork Reduction Act.
Under the regulations implementing the Paperwork Reduction Act of
1980, the Office of Management and Budget (OMB) must approve, prior to
commitments of funds, proposed contract surveys which require the
collection of information from ten or more non-federal persons or
entities. Prior to committing funds and entering into a contractual
agreement for such information collection activities, the contracting
officer shall ensure that a clearance and approval has been obtained
from OMB. The SF83, Request for OMB Review, will be used to request
OMB's review and approval. SF83's must be forwarded to the Information
Requirements Division (M-34) of the Office of Information and Resource
Management, for processing to OMB. For assistance in preparing the
information collection justification for the SF83, contact the
administration's Paperwork Clearance Officer or the Information
Requirements Division (M-34). Early coordination with M-34, prior to
solicitation, should prevent any delays caused by the time required to
obtain OMB approval. The information collection and recordkeeping
requirements contained in this regulation have been approved by the OMB.
The applicable OMB control number is 2105-0517.
48 CFR 1201.105 Subpart 1201.2 -- Administration
1201.201 Maintenance of the FAR.
48 CFR 1201.201-1 The two councils.
The Senior Procurement Executive shall appoint the Department of
Transportation representative to the CAA Council.
48 CFR 1201.270 Amendment of regulation.
This Regulation will be amended from time to time as determined
necessary by the Senior Procurement Executive. Requests for changes to
the TAR should be submitted to the Senior Procurement Executive, Office
of the Secretary (M-60).
48 CFR 1201.270-1 Revisions.
This Regulation will be amended by issuance of TAR Directives (TDs)
containing loose-leaf replacement pages which revise Parts, Subparts, or
paragraphs (also see 1201.270-2 of this subpart). Each replacement page
will bear at the top the TD number, page number and date. A vertical
bar at the beginning or end of a line indicates that a change has been
made within that line.
48 CFR 1201.270-2 TAR Notices.
(a) TAR Notices (TNs) shall also be published as often as may be
necessary or advisable under any of the following circumstances:
(1) To promulgate as rapidly as possible selected material revising
this Regulation, in a general or narrative manner, in advance of a
specific page replacement to this Regulation.
(2) To disseminate material applicable to the acquisition process
which is not suitable for insertion in this Regulation.
(3) When the policy and/or procedure is expected to be effective for
a period of 1 year or less.
(b) Unless otherwise indicated, each item in a TN will remain in
effect until the effective date of that subsequent revision which
incorporates the item or until specifically canceled.
48 CFR 1201.270-3 Effective date.
(a) Statements in TDs and TNs to the effect that the material
published therein is ''effective upon receipt,'' upon a specific date,
or that changes set forth in the Directive or Notice are ''to be used
upon receipt,'' mean that any new or revised provisions, clauses,
procedures, or forms included in the Directive or Notice shall be
included in solicitations, contracts or modifications issued thereafter,
unless a different meaning is expressed in the Directive or Notice.
(b) Compliance with a revision to this Regulation shall be in
accordance with the TD or TN which contains the revision.
(c) Unless otherwise stated, solicitations which have been issued and
bilateral agreements upon which negotiations have been completed prior
to the receipt of new or revised contract clauses need not be amended if
the amendment would delay the acquisition action.
48 CFR 1201.270-4 Numbering.
TAR Directives and Notices will be numbered consecutively on a
calendar year basis beginning with number 1 prefixed by the last two
digits of the calendar year, e.g., 84-1; 84-2; 84-3, etc.
48 CFR 1201.270-4 Subpart 1201.3 -- Agency Acquisition Regulations
48 CFR 1201.303 Publication and codification.
(a) The TAR is codified as Chapter 12 in Title 48, Code of Federal
Regulations, Parts 1201 through 1285.
(b) Public participation in promulgation of the TAR shall be in the
same manner as specified for the FAR in FAR 1.501.
48 CFR 1201.303-70 Administration regulations.
Administration regulations implementing or supplementing the TAR will
be included as separate appendices to 48 CFR Chapter 12 as follows:
OST -- Office of the Secretary
FAA -- Federal Aviation Administration
USCG -- United States Coast Guard
FHWA -- Federal Highway Administration
NHTSA -- National Highway Traffic Safety Administration
FRA -- Federal Railroad Administration
UMTA -- Urban Mass Transportation Administration
SLSDC -- Saint Lawrence Seaway Development Corporation
MARAD -- Maritime Administration
RSPA -- Research and Special Programs Administration
Supplementary material for which there is no counterpart in the TAR
shall be identified using chapter, part, subpart, section, or subsection
numbers of 90 and up (e.g., for the U.S. Coast Guard, whose assigned
acronym is ''USCG'', an agency-unique clause pertaining to ''Inspection
and/or Acceptance'' would be designated ''USCG 1252.246-90'').
48 CFR 1201.304 Agency control and compliance procedures.
(a) All administration acquisition regulations, and all TAR
Directives and Notices, shall be approved by the Senior Procurement
Executive prior to promulgation to assure compliance with FAR Part 1.
(b) Prior to approval submission:
(1) All TAR issuances shall be reviewed by the OST Office of the
General Counsel.
(2) Administration aquisition regulations shall be reviewed by
appropriate administration counsel.
48 CFR 1201.304 Subpart 1201.4 -- Deviations From the FAR
48 CFR 1201.401 Definition.
A deviation to the Transportation Acquisition Regulation (TAR) is
defined in the same manner as a deviation to the Federal Acquisition
Regulation (FAR).
48 CFR 1201.403 Individual deviations.
Requests for individual deviations from the FAR and the TAR shall be
submitted by the head of the contracting activity (HCA) to the agency
head for approval; however, for the Office of the Secretary, the
request shall be submitted by the HCA to the Senior Procurement
Executive for approval. All such requests shall be coordinated with
legal counsel. Requests submitted shall cite the specific part of the
FAR or TAR from which it is desired to deviate; shall set forth the
nature of the deviation(s); and shall give the reasons for the action
requested. The agency head shall transmit copies of approved individual
FAR and TAR deviations to the Senior Procurement Executive.
(52 FR 44525, Nov. 19, 1987, as amended at 53 FR 28397, July 28,
1988)
48 CFR 1201.404 Class deviations.
Requests for class deviations to the FAR and TAR shall be submitted
to the Senior Procurement Executive for approval. Requests submitted
shall include the same type of information as required for individual
deviations as prescribed in 1201.403.
48 CFR 1201.470 Deviations to and waivers from the requirements of
Departmental Orders related to acquisition.
Requests for such deviations and waivers shall be submitted to the
Senior Procurement Executive for approval, unless the specific DOT Order
specifies procedures for obtaining waivers or deviations.
48 CFR 1201.470 Subpart 1201.6 -- Contracting Authority and Responsibilities
48 CFR 1201.601 General.
In accordance with 49 CFR 1.45(a)(2), the authority and
responsibility vested in the Secretary to contract for authorized
supplies and services is delegated to the agency heads. Provided it is
not inconsistent with the FAR, any authority established at or below the
agency head level by this regulation may be redelegated, unless
authority to redelegate is specifically withheld.
48 CFR 1201.602 Contracting officers.
The head of the contracting activity (HCA) shall maintain information
on the limits of contracting officer authority.
(52 FR 44525, Nov. 19, 1987, as amended at 53 FR 28397, July 28,
1988)
1201.603 Selection, appointment, and termination of appointment.
48 CFR 1201.603-1 General.
The agency head shall select and appoint contracting officers and
terminate such appointments. This authority may be altered upon
establishment of the ''DOT Contracting Officer Warrant Program.''
48 CFR 1201.603-1 PART 1202 -- DEFINITIONS OF WORDS AND TERMS
Authority: Sec. 205(c), Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
48 CFR 1201.603-1 Subpart 1202.1 -- Definitions
48 CFR 1202.170 Definitions.
(a) Department of Transportation means all of the administrations,
including the Office of the Secretary.
(b) Administration means the following:
Office of the Secretary (OST)
Federal Aviation Administration
U.S. Coast Guard
Federal Highway Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Urban Mass Transportation Administration
St. Lawrence Seaway Development Corporation
Maritime Administration
Research and Special Programs Administration
(c) Head of the agency (also called agency head) means the Assistant
Secretary for Administration for OST acquisitions; and for acquisitions
within their administrations, the Administrators of the Federal Aviation
Administration, Federal Highway Administration, Federal Railroad
Administration, Urban Mass Transportation Administration, National
Highway Traffic Safety Administration, Maritime Administration, St.
Lawrence Seaway Development Corporation, Research and Special Programs
Administration, and the Commandant, U.S. Coast Guard, except to the
extent that any law or executive order limits the exercise of authority
to persons at the Secretarial level. In the latter situation, the
Assistant Secretary for Administration shall exercise the authority for
the administrations.
(d) Head of the contracting activity (HCA) means the following:
The Chief, Procurement Division, Washington, DC
In the Federal Aviation Administration
The Director, Acquisition and Materiel Service, Washington, DC
The Director, Alaskan Region, Anchorage, AL
The Director, Western Pacific Region, Los Angeles, CA
The Director, Southern Region, Atlanta, GA
The Director, Northwest Mountain Region, Seattle, WA
The Director, Central Region, Kansas City, MO
The Director, Eastern Region, Jamaica, NY
The Director, Southwest Region, Fort Worth, TX
The Director, Aeronautical Center, Oklahoma City, OK
The Director, FAA Technical Center, Atlantic City, NJ
The Director, New England Region, Burlington, MA
The Director, Great Lakes Region, Des Plaines, IL
Chief, Contract Support Division, Commandant (G-ACS), Washington, DC,
for Headquarters and Resident Inspection Offices.
Chief, Procurement Management Division, Commandant (G-FPM),
Washington, DC, for other designated Headquarters Units and Commandant
(G-CAS-4).
Commander, First Coast Guard District, Boston, MA
Commander, Second Coast Guard District, St. Louis, MO
Commander, Fifth Coast Guard District, Portsmouth, VA
Commander, Seventh Coast Guard District, Miami, FL
Commander, Eighth Coast Guard District, New Orleans, LA
Commander, Ninth Coast Guard District, Cleveland, OH
Commander, Eleventh Coast Guard District, Long Beach, CA
Commander, Thirteenth Coast Guard District, Seattle, WA
Commander, Fourteenth Coast Guard District, Honolulu, HI
Commander, Seventeenth Coast Guard District, Juneau, AL
Superintendent, U.S. Coast Guard Academy, New London, CT
Commander, Maintenance and Logistics Command, Atlantic
Commander, Maintenance and Logistics Command, Pacific
Associate Administrator for Administration, Washington, DC
Federal Lands Highway Program Administrator, Direct Federal
Construction Program, Washington, DC
Director, Office of Procurement, Washington, DC
Director, Office of Contracts and Procurement, Washington, DC
Director, Office of Procurement and Third Party Contract Review,
Washington, DC
Chief, Acquisition Division, Transportation Systems Center,
Cambridge, MA
Associate Administrator for Administration, Washington, DC
Central Region Director, New Orleans, LA
Western Region Director, San Francisco, CA
Assistant Superintendent for Administration, U.S. Merchant Marine
Academy
(e) Senior Procurement Executive means that individual formally
designated by the Secretary, currently the Director of Acquisition and
Grant Management, Office of the Secretary.
(f) Acquisition executive means the Deputy Secretary for programs
defined as major systems in accordance with OMB Circular A-109 and DOT
Order 4200.14A, Major Systems Acquisition Review and Approval.
(52 FR 44528, Nov. 19, 1987, as amended at 53 FR 28398, July 28,
1988)
48 CFR 1202.170 PART 1203 -- IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
48 CFR 1202.170 Subpart 1203.1 -- Safeguards
Sec.
1203.101 Standards of conduct.
1203.101-1 General.
48 CFR 1202.170 Subpart 1203.5 -- Other Improper Business Practices
1203.502 Subcontractor kickbacks.
48 CFR 1202.170 Subpart 1203.6 -- Contracts With Government Employees or
Organizations Owned or Controlled by Them
1203.602 Exceptions.
48 CFR 1202.170 Subpart 1203.70 -- Reporting Suspected Fraud and
Improper Business Practices
1203.7000 Policy.
48 CFR 1202.170 Subpart 1203.71 -- Contracts Between DOT and Former DOT
Employees
1203.7101 Policy.
Authority: Sec. 205(c) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44528, Nov. 19, 1987, unless otherwise noted.
48 CFR 1202.170 Subpart 1203.1 -- Safeguards
1203.101 Standards of conduct.
48 CFR 1203.101-1 General.
(a) Personnel involved in contracting activities must familiarize
themselves with a number of Federal criminal statutes prohibiting
certain acts by Government officials or employees and, in varying
degrees, special Government employees (as defined in 18 U.S.C. 202),
which generally provide, among other things, the following:
(1) 18 U.S.C. 201: Prohibits the asking, demanding, exacting,
soliciting, seeking, acceptance, or receipt of or agreement to accept
anything of value for him or herself or for any other person or entity
in return for being influenced in the performance or non-performance of
their official duties or other conduct of their office. (i.e.,
''bribes'').
(2) 18 U.S.C. 203: Prohibits compensation for services rendered by
any officer, employee, or another, such as partnership income in an
accounting firm in relation to any particular matter in which the United
States is a party.
(3) 18 U.S.C. 205: Prohibits acting as an agent or attorney in
prosecuting any claim against the United States or before any United
States agency in relation to any matter in which the United States is a
party, with or without compensation.
(4) 18 U.S.C. 208: Prohibits personal and substantial participation
in any particular matter in which an individual or an individual's
spouse, minor child, partner, organization in which the individual
serves as an officer, director, trustee, partner, or employee, or
potential employer (with whom the individual is negotiating or has an
arrangement for future employment) has a financial interest.
(5) 18 U.S.C. 209: Prohibits receipt of any salary or
supplementation of salary (anything of value) from a non-Government
source as compensation for services as an officer or employee.
(b) Under 18 U.S.C. 218, a conviction under one of these statutes in
relation to a contract makes the contract voidable.
(c) In addition to these statutory provisions, personnel involved in
contracting activities must familiarize themselves with the Department's
Employee Responsibilities and Conduct regulations in 49 CFR Part 99.
These regulations, among other things, set forth standards of employee
conduct and prohibit an employee's doing anything which could result in,
or create the appearance of having, a conflict of interest.
(d) Personnel involved in contracting activities must be particularly
aware of the prohibitions against accepting gifts. In general,
contracting personnel must not accept a gift from anyone who has, is
seeking, or is likely to seek a contract with the Department. Gifts
includes meals (lunches, dinners, etc.), entertainment (theater or
sporting event tickets, weekends at private retreats, private cocktail
parties, hospitality suites, etc.), and travel expenses (airplane
tickets, hotel accommodations, etc.), as well as tangible gifts. The
only general exception is gifts of unsolicited advertising or
promotional material, such as pens, calendars, or desk toys, that are
worth $10 or less.
(e) Refer any questions concerning the matters discussed in this
subpart to administration legal counsel.
48 CFR 1203.101-1 Subpart 1203.5 -- Other Improper Business Practices
48 CFR 1203.502 Subcontractor kickbacks.
Contracting officers shall report suspected violations of the
Anti-Kickback Act through the head of the contracting activity to
administration legal counsel.
48 CFR 1203.502 Subpart 1203.6 -- Contracts With Government Employees or Organizations Owned or Controlled by Them
48 CFR 1203.602 Exceptions.
The agency head has the authority to authorize an exception to the
policy in FAR 3.601. This authority may be redelegated to a level not
below the head of the contracting activity for contracts under $25,000.
Before an exception is granted in any case, consult administration legal
counsel as to the effect of the conflict of interest laws.
48 CFR 1203.602 Subpart 1203.70 -- Reporting Suspected Fraud and Improper Business Practices
48 CFR 1203.7000 Policy.
Contracting officers shall report suspected violations of the
gratuities clause, anti-trust violations, misrepresentations or
violations of the covenant against contingent fees, subcontractor
kickbacks, and other suspected fraudulent behavior through normal
administrative channels to the Office of Inspector General (J-1), with a
copy to General Counsel or the appropriate Chief Counsel.
48 CFR 1203.7000 Subpart 1203.71 -- Contracts Between DOT and Former DOT Employees
48 CFR 1203.7101 Policy.
(a) Agency head approval is required for all contracts with
individuals who have been employed by DOT within the two years prior to
the expected date of contract award, and with firms in which such a
former DOT employee is a partner, principal officer, majority
stockholder, or which is otherwise controlled or predominantly staffed
by such former DOT employees.
(b) When current DOT employees are initially contacted by a former
DOT official or employee on behalf of him or herself or a contractor in
connection with a contract matter, they shall consult with appropriate
legal counsel for a determination of impact on the acquisition involved,
and to take action, as necessary, regarding violation of post-employment
laws.
48 CFR 1203.7101 PART 1204 -- ADMINISTRATIVE MATTERS
48 CFR 1203.7101 Subpart 1204.2 -- Contract Distribution
Sec.
1204.202 Agency distribution requirements.
48 CFR 1203.7101 Subpart 1204.6 -- Contract Reporting
1204.602 Federal Procurement Data System.
48 CFR 1203.7101 Subpart 1204.8 -- Contract Files
1204.804 Closeout of contract files.
1204.804-5 Detailed procedures for closing out contract files.
48 CFR 1203.7101 Subpart 1204.70 -- Procurement Requests
1204.7001 General.
1204.7002 Forms.
Authority: Sec. 205(c), Federal Property and Administrative Services
Act; as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44529, Nov. 19, 1987, unless otherwise noted.
48 CFR 1203.7101 Subpart 1204.2 -- Contract Distribution
48 CFR 1204.202 Agency distribution requirements.
The contracting officer shall distribute one copy of all contracts
which are for the acquisition of personal property (as defined at FAR
45.601) to the property management organization that has responsibility
for recordkeeping and control of such property. The contracting officer
shall also distribute one copy of all contract modifications which
change the basic contract so that it includes the acquisition of
personal property, to the applicable property management organization.
48 CFR 1204.202 Subpart 1204.6 -- Contract Reporting
48 CFR 1204.602 Federal Procurement Data System.
(a) The DOT Contract Information System (CIS) collects the
information required to comply with the reporting required for the
Federal Procurement Data System (FPDS). Each contracting officer is
responsible for proper reporting of contracts under his/her cognizance.
(b) DOT Order 1340.5, Contract Information System, provides detailed
reporting instructions.
(c) The CIS Data Input Form (DOTF.4220.11) shall be used to provide
acquisition records and statistics in lieu of the SF 279, Individual
Contract Action Report (over $25,000). A copy of each data input form
affecting the contract shall be included in the contract file. Those
administrations which use automation for reporting the information
normally included on the DOTF.4220.11, shall ensure that this
information is readily available in the contract office. The FPDS
Summary of Contract Actions of $10,000 or Less (SF 281) shall be used to
summarize contract actions of $25,000 or less.
(52 FR 44529, Nov. 19, 1987, as amended at 53 FR 28398, July 28,
1988)
48 CFR 1204.602 Subpart 1204.8 -- Contract Files
48 CFR 1204.804 Closeout of contract files.
48 CFR 1204.804-5 Detailed procedures for closing out contract files.
(a) In addition to those procedures set forth in FAR 4.804-5, the
contracting officer shall, before final payment is made under a
cost-reimbursement type contract, verify the allowability, allocability,
and reasonableness of costs claimed. Verification of total costs
incurred shall be obtained in the form of a final audit certification,
unless the contract is below $1,000,000, in which case the contracting
officer may choose to waive the audit certification requirement (with
respect to both direct costs and indirect costs) provided that she or he
determines in writing that the use of quick-closeout procedures is
appropriate in accordance with paragraph (b) of this section. Similar
verification of actual costs must be made for fixed-price contracts when
cost incentives or price redeterminations are involved.
(b) DOT contracting officers may utilize quick-closeout procedures on
cost-type contracts not exceeding $1,000,000 provided the stipulations
at FAR 42.708(a) (1) through (3) are met and:
(1) All terms and conditions of the contract have been met
satisfactorily;
(2) Invoiced costs are consistent with original cost estimates;
(3) There is no suspected fraud or wrongdoing; and
(4) The Contracting Officer determines in writing, that the use of
this procedure will be beneficial to the Government.
(53 FR 28398, July 28, 1988)
48 CFR 1204.804-5 Subpart 1204.70 -- Procurement Requests
48 CFR 1204.7001 General.
(a) Procurement requests will be prepared and submitted to the
contracting office in accordance with administration procedures.
(b) Except in unusual circumstances, the contracting office will not
issue solicitations until an approved procurement request, containing a
certification that funds are available, has been received. However, the
contracting office may take all necessary actions up to the point of
contract award prior to the receipt of the approved procurement request
certifying that funds are available when:
(1) Such action is necessary to meet critical program schedules;
(2) It has been established that program authority has been issued
and that funds to cover the acquisition will be available prior to the
date set for contract award or contract modification;
(3) A person at a level above the contracting officer authorizes such
action prior to the issuance of the solicitation, and the contract file
is properly documented; and
(4) The solicitation document clearly indicates that the award is
subject to the availability of funds.
(c) The procurement request shall be assigned within the contracting
office to an individual who, if not the contracting officer, will be
responsible to the contracting officer for conducting the business
aspects of the transaction. This individual shall review the request to
ensure that it complies with the FAR and this Regulation and that the
information contained in the request is in sufficient detail to prepare
presolicitation and solicitation documents. The contracting officer, or
other designated individual in the contracting office, shall discuss
uncertain requirements or inconsistencies in the procurement request
with the initiator of the request and obtain clarification prior to
taking any further action.
48 CFR 1204.7002 Forms.
Procurement Request Forms DOT F.4200.1 and DOT F.4200.2 (continuation
sheet) shall be used to request the acquisition of supplies, services,
or construction and may be used to request items obtained through
FEDSTRIP, MILSTRIP, or similar single- or multi-line requisitioning
methods.
48 CFR 1204.7002 SUBCHAPTER B -- COMPETITION AND ACQUISITION PLANNING
48 CFR 1204.7002 PART 1205 -- PUBLICIZING CONTRACT ACTIONS
48 CFR 1204.7002 Subpart 1205.1 -- Dissemination of Information
Sec.
1205.102 Availability of solicitations.
48 CFR 1204.7002 Subpart 1205.2 -- Synopses of Proposed Contract Actions
1205.207 Preparation and transmittal of synopses.
48 CFR 1204.7002 Subpart 1205.3 -- Synopses of Contract Awards
1205.303 Announcement of contract awards.
48 CFR 1204.7002 Subpart 1205.4 -- Release of Information
1205.402 General public.
1205.402-70 Furnishing additional contract information to the general
public.
48 CFR 1204.7002 Subpart 1205.5 -- Paid Advertisements
1205.502 Authority.
Authority: Sec. 205(c), Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)), 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44530, Nov. 19, 1987, unless otherwise noted.
48 CFR 1204.7002 Subpart 1205.1 -- Dissemination of Information
48 CFR 1205.102 Availability of solicitations.
Notwithstanding the limitations of FAR 5.102, Availability of
solicitations, it is the Department's policy to provide a copy of any
solicitation to all who submit a request for a copy of the solicitation.
48 CFR 1205.102 Subpart 1205.2 -- Synopses of Proposed Contract Actions
48 CFR 1205.207 Preparation and transmittal of synopses.
Numbered notes: The Civilian Agency Acquisition Council has granted
a class deviation to DOT exempting the Department from the requirements
of FAR 5.207(e)(3). The use of Numbered Note 22 is prohibited in DOT
synopses of proposed contract actions. For those actions requiring a
market survey to support a justification for other than full and open
competition, the survey shall be conducted separately from and well in
advance of the synopsis of the proposed contract action. In these
instances, the market survey must be performed as part of and in support
of the acquisition planning which supports the determination to contract
with less than full and open competition. In addition to the
requirements of FAR 5.207, and in lieu of Numbered Note 22, the
Contracting Officer shall use terminology substantially as follows:
''This contract action is for supplies or services for which the
Government intends to solicit and negotiate only with (name of
contractor) under authority of FAR (insert appropriate authority from
FAR 6.302). A market survey was conducted on (date), and the results of
this survey support our determination to solicit and negotiate with only
one firm.
48 CFR 1205.207 Subpart 1205.3 -- Synopses of Contract Awards
48 CFR 1205.303 Announcement of contract awards.
Contracts valued at $200,000, or more shall not be executed,
distributed, nor any information released to any source outside of DOT
that the contract has been approved until the Director, Office of Public
Information, has advised the contract activity that the contract can be
released. The contracting officer shall prepare and submit a public and
Congressional notification form, entitled ''Proposed Award of Contract
or Grant,'' for the purpose of obtaining this release.
(53 FR 28398, July 28, 1988, as amended at 53 FR 34301, Sept. 6,
1988)
48 CFR 1205.303 Subpart 1205.4 -- Release of Information
1205.402 General public.
48 CFR 1205.402-70 Furnishing additional contract information to the
general public.
(a) In addition to publicizing proposed contracts and contract awards
in the Commerce Business Daily, it is DOT policy to furnish the general
public, upon request, the following information on proposed contracts
and contract awards.
(1) The names of firms invited to submit bids or proposals;
(2) The names of firms which attended pre-proposal briefing
conferences when held;
(3) After the award of contracts, names of firms which submitted
proposals; and
(4) After the date established for receipt of bids, names of firms
which submitted bids.
(b) Exceptions to this policy will be permitted only when the head of
the contracting activity determines that the disclosure of such
information would be prejudicial to the interests of DOT.
(53 FR 28398, July 28, 1988)
48 CFR 1205.402-70 Subpart 1205.5 -- Paid Advertisements
48 CFR 1205.502 Authority.
Authority to approve publication of paid advertisements in newspapers
is delegated to the head of the contracting activity.
48 CFR 1205.502 PART 1206 -- COMPETITION REQUIREMENTS
Sec.
1206.003 Definitions.
48 CFR 1205.502 Subpart 1206.1 -- Full and Open Competition
1206.102 Use of competitive procedures.
48 CFR 1205.502 Subpart 1206.3 -- Other Than Full and Open Competition
1206.302 Circumstances permitting other than full and open
competition.
1206.302-1 Only one responsible source and no other supplies or
services will satisfy agency requirements.
1206.302-2 Unusual and compelling urgency.
1206.302-7 Public interest.
1206.303 Justifications.
1206.303-1 Requirements.
1206.304 Approval of the justification.
1206.305 Availability of the justification.
48 CFR 1205.502 Subpart 1206.5 -- Competition Advocates
1206.501 Requirement.
Authority: 41 U.S.C. 253 et. seq., 10 U.S.C. 2301 et. seq., t1
U.S.C. 403 et. seq., as amended by Pub. L. 98-369.
Source: 52 FR 44531, Nov. 19, 1987, unless otherwise noted.
48 CFR 1206.003 Definitions.
Head of the procuring activity, as used in this part shall be
synonymous with ''head of the agency'' as defined in 1202.170(c).
Procuring activity, as used in this part, shall be synonymous with
''Administration'' as defined in 1202.170(b).
48 CFR 1206.003 Subpart 1206.1 -- Full and Open Competition
48 CFR 1206.102 Use of competitive procedures.
(a) Contracting officers shall ensure that the special competition
requirements for acquiring automatic data processing and
telecommunications equipment, software, or services are met. These
requirements currently are set forth in the Federal Information
Resources Management Regulation (FIRMR), chapter 201 of title 41, Code
of Federal Regulation.
(b) Prior to proceeding with a contract award, contracting officers
shall review all competitive solicitations which produce only one offer
from responsible sources. The contracting officer shall attempt to
ascertain the reasons for the lack of response and shall place a written
statement in the contract file documenting his conclusions regarding the
lack of competition under the solicitation. The contracting officer
shall provide a copy of the statement to the procuring activity
competition advocate and the Senior Competition Advocate. Should the
contracting officer conclude that the solicitation was structured or
conducted in a manner which did not provide for full and open
competition, the contracting officer shall either cancel the
solicitation or shall proceed to justify the award under FAR subpart
6.3. See FAR 14.404-1 when contemplating cancellation of sealed bid
solicitations after bid opening.
(52 FR 44531, Nov. 19, 1987, as amended at 53 FR 28399, July 28,
1988)
48 CFR 1206.102 Subpart 1206.3 -- Other Than Full and Open Competition
competition.
1206.302 Circumstances permitting other than full and open
48 CFR 1206.302-1 Only one responsible source and no other supplies or
services will satisfy agency requirements.
Unsolicited proposals with an estimated value in excess of $25,000,
may be considered for award under FAR 6.302-1 only after they are
reviewed and approved by the Senior Competition Advocate. This approval
is in addition to that approval stipulated at 1206.304. For unsolicited
proposals with an estimated value in excess of $200,000, this approval
may be obtained through the Department's Prenotification Process
implemented by DOT Order 4200.16, Prenotification Review of Proposed
Acquisition and Assistance Actions and Related Matters.
(52 FR 44531, Nov. 19, 1987, as amended at 53 FR 28399, July 28,
1988)
48 CFR 1206.302-2 Unusual and compelling urgency.
The contracting officer shall ensure that the justification
supporting the use of this authority is approved prior to contract award
unless immediate loss of life or property, or other equally compelling
circumstances, are involved. When such a compelling circumstance
exists, the contracting officer should inform the approving official of
the action at the earliest opportunity, preferably before award. In
cases involving approval after award, the justification required by FAR
6.303 shall contain a summary of facts justifying approval after award,
including a statement of the number of days that were available to
execute the justification prior to award.
48 CFR 1206.302-7 Public interest.
(a) The operating administrations shall coordinate and process all
requests for a Secretarial determination, under this authority, through
the Senior Competition Advocate. The Senior Competition Advocate shall
review the request and shall prepare a recommendation to the Secretary
regarding the merits of the request.
(b) The request must be submitted by the head of the procuring
activity.
(c) All supporting documentation and a proposed determination and
findings must accompany the request.
1206.303 Justifications.
48 CFR 1206.303-1 Requirements.
The requirements of 1206.302-2 must be met for justifications
approved after contract award.
48 CFR 1206.304 Approval of the justification.
(a) The justification for other than full and open competition shall
be approved by the following officials;
(1) For proposed acquisitions estimated between $25,000 and $100,000:
(i) For all Administrations except the Coast Guard: The individuals
cited at 1202.170(d) under the definition of ''Head of Contracting
Activity.''
(ii) For the Coast Guard: The individuals cited at 1202.170(d) under
the definition of ''Head of Contracting Activity,'' excluding the
District Commanders. The justifications for the units listed below
shall be approved by the Commanding Officer or the Commander
(redelegable to the individual of that unit with comptroller authority):
(A) Commanding Officer, U.S. Coast Guard Aircraft Repair and Supply
Center, Elizabeth City, North Carolina.
(B) Commanding Officer, U.S. Coast Guard Supply Center, Brooklyn, New
York.
(C) Commanding Officer, U.S. Coast Guard Training Center, Cape May,
New Jersey.
(D) Commanding Officer, U.S. Coast Guard Training Center, Petaluma,
California.
(E) Commanding Officer, U.S. Coast Guard Yard, Baltimore, Maryland.
(F) Commanding Officer, Electronics Engineering Center, Wildwood, New
Jersey.
(G) Commander, Coast Guard Activities, Europe, London.
(H) Commanding Officer, U.S. Coast Guard Reserve Training Center,
Yorktown, Virginia.
(I) -- (J) (Reserved)
(K) Commanding Officer, U.S. Coast Guard Pay and Personnel Center,
Topeka, Kansas.
(L) Commanding Officer, U.S. Coast Guard Resident Inspection Office,
Middletown, Rhode Island.
(M) Commanding Officer, U.S. Coast Guard Resident Inspection Office,
Bath, Maine.
(N) Commanding Officer, U.S. Coast Guard Resident Inspection Office,
Lockport, Louisiana.
(O) Commanding Officer, U.S. Coast Guard Resident Inspection Office,
Seattle, Washington.
(P) Commanding Officer, U.S. Coast Guard, Aircraft Program Office,
Grand Prairie, Texas.
(Q) Commanding Officer, U.S. Coast Guard Air Station, Washington
National Airport, Washington, D.C.
(R) Commanding Officer, U.S. Coast Guard Aviation Training Center,
Mobile, Alabama.
(S) Commanding Officer, U.S. Coast Guard Station, Alexandria,
Virginia.
(T) Commanding Officer, U.S. Coast Guard COMDAC Support Facility,
Portsmouth, Virginia.
(U) Commanding Officer, U.S. Coast Guard Central Regional Recruiting
Center, Hazelwood, Missouri.
(V) Commanding Officer, U.S. Coast Guard Eastern Regional Recruiting
Center, Norfolk, Virginia.
(W) Commanding Officer, U.S. Coast Guard Western Regional Recruiting
Center, Seattle, Washington.
(2) For proposed acquisitions over $100,000 but not exceeding
$1,000,000: The procuring activity's competition advocate.
(3) For proposed acquisitions over $1,000,000 but not exceeding
$10,000,000: The procuring activity's competition advocate and the
following:
(i) The Assistant Secretary for Administration for OST Acquisitions;
(ii) The Administrator or Deputy Administrator; the Commandant or
Vice Commandant for Acquisitions of their administrations.
(4) For proposed acquisitions over $10,000,000: The approval
authorities cited in 1206.304(a)(3) and the following:
(i) The Senior Procurement Executive.
(ii) The Assistant Secretary for Administration in the absence of the
Senior Procurement Executive.
(b) The approval authorities cited in 1206.304(a) may not be
delegated. With respect to the approval authorities cited in
1206.304(a), individuals acting in the place of these approving
officials must also meet the qualification requirements stipulated by
the Competition in Contracting Act of 1984 and also, for the Coast
Guard, the qualification requirements stipulated by Title 10 of the U.S.
Code.
(c) Legal review shall be obtained when appropriate.
(d) In addition to the approvals stipulated in 1206.304(a), class
justifications for other than full and open competition for requirements
with an estimated value exceeding $25,000 must be reviewed and approved
by the Senior Competition Advocate. A copy of the CBD synopsis, or a
copy of the synopsis waiver, should be attached to the justification.
(52 FR 44531, Nov. 19, 1987, as amended at 53 FR 28399, July 28,
1988)
48 CFR 1206.305 Availability of the justification.
The contracting officer shall forward a copy of all approved
justifications for other than full and open competition, including
supporting documentation, to the Senior Competition Advocate within 10
working days of approval. A copy of the CBD synopsis, or a copy of the
synopsis waiver, should be attached to the justification.
48 CFR 1206.305 Subpart 1206.5 -- Competition Advocates
48 CFR 1206.501 Requirement.
(a) The Secretary shall appoint a Senior Competition Advocate (SCA)
and procuring activity competition advocates.
(b) The SCA shall --
(1) Act as the agency competition advocate;
(2) Oversee and coordinate the activities of the competition
advocates in the operating administrations;
(3) Act as the Secretary's principal advisor regarding competition
issues.
(c) The head of each operating administration shall recommend to the
Secretary, in writing, a procuring activity competition advocate for the
administration. The advocate must be a member of the Senior Executive
Service or a flag officer. The head of the operating administration
shall forward the recommendation letter through the SCA.
(d) The head of the operating administration may appoint competition
advocates in headquarters and field contracting offices to assist the
procuring activity competition advocate. Such individuals shall not
have approval authority under 1206.304.
(e) The head of each operating administration shall make available
professional contracting and engineering staff to support the
competition advocates.
48 CFR 1206.501 PART 1207 -- ACQUISITION PLANNING
48 CFR 1206.501 Subpart 1207.1 -- Acquisition Plans
Sec.
1207.102 Policy.
48 CFR 1206.501 Subpart 1207.3 -- Contractor Versus Government
Performance
1207.302 General.
1207.305 Solicitation provision and contract clause.
1207.307 Appeals.
1207.370 A-76 preward surveys.
48 CFR 1206.501 Subpart 1207.4 -- Equipment Lease or Purchase
1207.401 Acquisition considerations.
Authority: Sec. 205(c), Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44532, Nov. 19, 1987, unless otherwise noted.
48 CFR 1206.501 Subpart 1207.1 -- Acquisition Plans
48 CFR 1207.102 Policy.
The Department has implemented its acquisition planning system in DOT
Orders in the 4200 Series, which are available for inspection in DOT
contracting offices. This system meets the criteria prescribed in FAR
Subpart 7.1 covering major projects. Planning for smaller projects is
the responsibility of the agency head.
48 CFR 1207.102 Subpart 1207.3 -- Contractor Versus Government Performance
48 CFR 1207.302 General.
The Department's implementation of OMB Circular A-76 and FAR Subpart
7.3 is set forth in DOT Order 4400.2C, Performance of Commercial
Activities, which is available for inspection in DOT Contracting
Offices.
48 CFR 1207.305 Solicitation provision and contract clause.
(a)(1) The contracting officer shall insert the clause at
1252.207-70, Implementation of Right of First Refusal of Employment, in
solicitations and contracts which include FAR clause 52.207-3, Right of
First Refusal of Employment, and in contracts in which required
contractor performance causes Federal employees to be adversely
affected. This clause is required in solicitations and contracts as
stipulated herein, until that time when the FAR specifies contractual
provisions for the implementation of right of first refusal.
(2) At their own discretion, contracting officers may use the clause
with its alternate in lieu of the basic clause.
(b) Contracting officers shall include in all A-76 solicitations for
sealed bids a preaward survey clause substantially the same as that
specified at 1252.207-71, Financial and Technical Ability. Some
negotiated and two-step forms of contracting use technical proposals to
determine how well offerors understands the statement of work. The
clause stipulated at 1252.207-71, Financial and Technical Ability, may
be adapted and included as evaluation factors in negotiated
solicitations.
(52 FR 44532, Nov. 19, 1987, as amended at 53 FR 28399, July 28,
1988)
48 CFR 1207.307 Appeals.
The Department's appeals procedures required by OMB Circular A-76 and
FAR 7.307 are set forth in DOT Order 4400.2C.
48 CFR 1207.370 A-76 preaward surveys.
When soliciting under sealed bid methodology, contracting officers
shall normally conduct a preaward survey, as described in Chapter 6 of
the Supplement to A-76, with the contractor with the lowest responsive
bid, if the contractor's adjusted cost on the cost comparison form is
less than the Government's costs. However, a preaward survey will not
be conducted when the contractor alleges a mistake in bid and is allowed
to withdraw the bid for obvious reasons in accordance with FAR 14.406.
If the contractor which submitted the low bid is not determined to be
responsible, the next contractor whose adjusted costs are lower than the
Government's costs shall normally be subject to a preaward survey.
48 CFR 1207.370 Subpart 1207.4 -- Equipment Lease or Purchase
48 CFR 1207.401 Acquisition considerations.
The evaluation required by FAR 7.401 shall be documented whenever
contracting for the lease of equipment.
48 CFR 1207.401 PART 1208 -- REQUIRED SOURCES OF SUPPLIES AND SERVICES
48 CFR 1207.401 Subpart 1208.1 -- Excess Personal Property
Sec.
1208.102 Policy.
48 CFR 1207.401 Subpart 1208.4 -- Ordering From Federal Supply Schedules
1208.401 General.
Authority: Sec. 205(c), Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)), 48 CFR 1.301, 49 CFR 1.59.
Source: 52 FR 44533, Nov. 19, 1987, unless otherwise noted.
48 CFR 1207.401 Subpart 1208.1 -- Excess Personal Property
48 CFR 1208.102 Policy.
DOT Administrations shall use excess personal property as the first
source of supply when practicable. The HCA shall ensure that
procurement requests to acquire personal property are reviewed by the
appropriate property management organization to determine if
requirements are available from excess sources.
48 CFR 1208.102 Subpart 1208.4 -- Ordering From Federal Supply Schedules
48 CFR 1208.401 General.
Contracting officers shall consult the Federal Information Resources
Management Regulation (FIRMR) when ordering automatic data processing
(ADP) or telecommunications equipment and services under multiple award
schedules. Special procedures for ordering such equipment and services
are set forth in the FIRMR, Chapter 201 of Title 41, Code of Federal
Regulations.
48 CFR 1208.401 PART 1209 -- CONTRACTOR QUALIFICATIONS
48 CFR 1208.401 Subpart 1209.1 -- Responsible Prospective Contractors
Sec.
1209.104 Standards.
48 CFR 1208.401 Subpart 1209.3 -- First Article Testing and Approval
1209.302 General.
48 CFR 1208.401 Subpart 1209.4 -- Debarment, Suspension, and
Ineligibility
1209.402 Policy.
48 CFR 1208.401 Subpart 1209.5 -- Organizational Conflicts of Interest
1209.503 Waiver.
1209.508 Solicitation provisions and contract clause.
1209.508-1 Solicitation provisions.
Authority: Sec. 205(c), Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)); 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44533, Nov. 19, 1987, unless otherwise noted.
48 CFR 1208.401 Subpart 1209.1 -- Responsible Prospective Contractors
48 CFR 1209.104 Standards.
DOT Form DOTF 4220.1, Determination of Prospective Contractor
Responsibility, may be used to document the determination of a
prospective contractor's responsibility.
48 CFR 1209.104 Subpart 1209.3 -- First Article Testing and Approval
48 CFR 1209.302 General.
The procurement request initiator shall prepare a written statement
addressing the factors enumerated in FAR 9.302 whenever first article
testing and approval is required. This statement shall be forwarded
with the procurement request.
48 CFR 1209.302 Subpart 1209.4 -- Debarment, Suspension, and Ineligibility
48 CFR 1209.402 Policy.
DOT procedures to implement the policy of FAR 9.402 are set forth in
DOT Order 4200.5 ''Government-Wide Debarment, Suspension and
Ineligibility.''
48 CFR 1209.402 Subpart 1209.5 -- Organizational Conflicts of Interest
48 CFR 1209.503 Waiver.
In the rare instances, when necessary, the agency head is authorized
to approve waivers in accordance with FAR 9.503. This authority may not
be redelegated below the level of HCA.
48 CFR 1209.508 Solicitation provisions and contract clause.
48 CFR 1209.508-1 Solicitation provisions.
In additon to the provision discussed at FAR 9.508-1 (used where
appropriate), the contracting officer may insert the provision at
1252.209-71 ''Disclosure of Conflicts of Interest'' in solicitations for
negotiated acquisitions (see also 1215.407(a)).
48 CFR 1209.508-1 PART 1210 -- SPECIFICATIONS, STANDARDS, AND OTHER
PURCHASE DESCRIPTIONS
Sec.
1210.004 Selecting specifications or descriptions for use.
1210.004-70 Brand name products or equal.
1210.004-71 Limits on the use of brand name or equal purchase
descriptions.
1210.004-72 Solicitations, brand name or equal descriptions.
1210.004-73 Offer evaluation and award, brand name or equal
descriptions.
1210.007 Deviations.
1210.011 Solicitation provisions and contract clauses.
1210.011-70 Solicitation provision.
Authority: Sec. 205(C), Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44533, Nov. 19, 1987, unless otherwise noted.
1210.004 Selecting specifications or descriptions for use.
48 CFR 1210.004-70 Brand name products or equal.
(a) General. Consistent with the policy stated in FAR 10.004(b)(2),
DOT acquisitions will generally not be based on a specifically
identified product or feature(s) thereof. However, under unusual
circumstances such an approach may be used as described below.
(b) Citing brand name products. Brand name or equal purchase
descriptions shall cite all brand name products known to be acceptable
and of current manufacture.
(c) Specifying essential characteristics. (1) Brand name or equal
purchase descriptions shall specify each physical or functional
characteristic of the product that is essential to the intended use.
Failure to do so may result in a defective solicitation and the
necessity to resolicit the requirement. (See 1210.004-73) Care must be
taken to avoid specifying characteristics that cannot be shown to
materially affect the intended end use and which unnecessarily restrict
competition.
(2) When describing essential characteristics, permissible tolerances
should be indicated. Avoid specifying a characteristic (e.g. a specific
dimension) of a brand name product unless it is essential to the
Government's need. The contracting officer must be able to justify the
requirement.
48 CFR 1210.004-71 Limits on the use of brand name or equal purchase
descriptions.
(a) General. The use of brand name or equal purchase descriptions in
solicitations is intended to promote competition by encouraging the
offering of products that are equal in all material respects to brand
name products cited in such descriptions. Identification by brand name
does not indicate a preference for the products mentioned but indicates
the quality and characteristics of products that will meet the
Government's needs. Where a component of an item is described in the
solicitation by a brand name or equal purchase description and the
contracting officer determines that application of the provision at
1252.210-71 would be impracticable, the requirement to include the entry
described in 1210.004-72(a) shall not apply. If the provision is
included in the solicitation for other reasons, there also shall be
included in the solicitation a statement to identify either the
component parts (described by brand name or equal descriptions) to which
the provision applies or those to which it does not apply. This also
applies to accessories related to an end item where a brand name or
equal purchase description of the accessories is a part of the
description of an end item. Brand name or equal descriptions shall not
be used to acquire a particular product under the guise of competitive
acquisition to the exclusion of other products that would meet the
actual needs.
(b) Small purchases. In small purchases within the open market
limitations, brand name policies and procedures shall be applicable to
the extent practical.
(c) Approval required. A statement approved at least one level above
the contracting officer shall be included in the contract file to
justify use of brand name products or brand name or equal purchase
descriptions.
48 CFR 1210.004-72 Solicitations, brand name or equal descriptions.
(a) An entry substantially as follows shall be prominently inserted
in the item listing after each item or component part of an end item to
which a brand name or equal purchase description applies.
Bidding on:
Manufacturer's Name:
Brand:
No.:
(b) Because bidders frequently overlook the requirements of the
provision at 1252.210-70 ''Brand Name or Equal,'' the following note
shall be inserted in the item listing after each brand name or equal
item (or component part), or at the bottom of each page, listing several
such items, or in a manner that may otherwise direct the offeror's
attention to this clause.
Offerors offering other than brand name items identified herein
should furnish with their offers adequate information to ensure that a
determination can be made as to equality of the product(s) offered (see
the provision ''brand name or equal'' set forth in section 1252.210-70
of the Transportation Acquisition Regulation).
(c) If offeror samples are requested for brand name or equal
acquisitions, the above notice shall not be included in the
solicitation.
48 CFR 1210.004-73 Offer evaluation and award, brand name or equal
descriptions.
An offer may not be rejected for failure of the offered product to
equal a characteristic of a brand name product if it was not specified
in the brand name or equal description. However, if it is clearly
established that the unspecified characteristic is essential to the
intended end use, the solicitation is defective and no award may be
made. In such cases, the contracting officer should resolicit the
requirement, using a purchase description that sets forth the essential
characteristics.
48 CFR 1210.007 Deviations.
The head of the contracting activity is the designated official
responsible for ensuring that Federal specifications are used and
exceptions and deviations are justified in accordance with FAR
10.007(a).
1210.011 Solicitation provisions and contract clauses.
48 CFR 1210.011-70 Solicitation provision.
The contracting officer shall include the provision at 1252.210-70.
''Brand Name or Equal'' in solicitations for which a brand name or equal
purchase description is used.
48 CFR 1210.011-70 PART 1212 -- CONTRACT DELIVERY OR PERFORMANCE
Authority: Sec. 205(c), Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
48 CFR 1210.011-70 Subpart 1212.70 -- Delays
48 CFR 1212.7001 Delays.
The contracting officer shall insert the clause at 1252.212-71
''Notice of Delay'' in all DOT contracts except fixed-price construction
solicitations and contracts. The notice requirements may be modified
for short-term contracts, as appropriate.
(52 FR 44534, Nov. 19, 1987)
48 CFR 1212.7001 SUBCHAPTER C -- CONTRACTING METHODS AND CONTRACT TYPES
48 CFR 1212.7001 PART 1213 -- SMALL PURCHASE AND OTHER SIMPLIFIED PURCHASE PROCEDURES
48 CFR 1212.7001 Subpart 1213.1 -- General
Sec.
1213.106 Competition and price reasonableness.
1213.106-70 Data to support small purchases over $1,000.
1213.107 Solicitation and evaluation of quotations.
48 CFR 1212.7001 Subpart 1213.2 -- Blanket Purchase Agreements
1213.2 General.
1213.203 Establishment of blanket purchase agreements.
1213.203-1 General.
48 CFR 1212.7001 Subpart 1213.3 -- Fast Payment Procedure
1213.302 Conditions for use.
48 CFR 1212.7001 Subpart 1213.4 -- Imprest Fund
1213.403 Agency responsibilities.
1213.404 Conditions for use.
1213.405 Procedures.
48 CFR 1212.7001 Subpart 1213.5 -- Purchase Orders
1213.505 Purchase order and related forms.
1213.505-2 Agency order forms in lieu of Optional Forms 347 and 348.
1213.505-3 Standard Form 44, Purchase Order-Invoice-Voucher.
Authority: Sec. 205(C), Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44534, Nov. 19, 1987, unless otherwise noted.
48 CFR 1212.7001 Subpart 1213.1 -- General
1213.106 Competition and price reasonableness.
48 CFR 1213.106-70 Data to support small purchases over $1,000.
Form DOT F 4230.1, Small Purchase Summary, may be used to satisfy
documentation requirements of FAR 13.106(c).
48 CFR 1213.107 Solicitation and evaluation of quotations.
Standard Form 18, Request For Quotations, shall be used to obtain
written quotations as prescribed in FAR 13.107(a) unless an
administration equivalent form has been authorized for use by the Senior
Procurement Executive. (See FAR 53.103).
48 CFR 1213.107 Subpart 1213.2 -- Blanket Purchase Agreements
48 CFR 1213.201 General.
The head of the contracting activity may require that only
contracting officers make purchases under a blanket purchase agreement
(BPA).
1213.203 Establishment of blanket purchase agreements.
48 CFR 1213.203-1 General.
Optional Form 347, Order for Supplies or Services, shall be used for
BPAs unless an administration equivalent form has been authorized for
use by the HCA.
(53 FR 28399, July 28, 1988)
48 CFR 1213.203-1 Subpart 1213.3 -- Fast Payment Procedure
48 CFR 1213.302 Conditions for use.
The agency head may establish higher dollar limitations than those
specified at FAR 13.302(a) for specified activities or items.
48 CFR 1213.302 Subpart 1213.4 -- Imprest Fund
48 CFR 1213.403 Agency responsibilities.
(a) Regulations governing the use and administration of Imprest Funds
within the Department are contained in DOT Order 2770.7A, Imprest Fund
Manual.
(b) Heads of contracting activities (HCAs) shall establish procedures
for designation of personnel authorized to approve requisitions and make
purchases using imprest funds. HCAs may require that only contracting
officers may approve requisitions using imprest funds.
48 CFR 1213.404-1 Conditions for use.
The Department has implemented its imprest fund procedures and policy
in DOT Order 2770.7A, Imprest Fund Manual.
48 CFR 1213.405 Procedures.
(a) The individual making an approved purchase from the imprest fund
shall be responsible for compliance with the documentation requirements
of FAR 13.405(f) and DOT Order 2770.7A, Chapter 6.
(b) The individual having acquisition authority to approve purchases
from the imprest fund shall be responsible for checking the authorized
purchase requisition for compliance with the internal control
requirements mandated by DOT Order 2770.7A, Chapter 6, Paragraph 2a.
48 CFR 1213.405 Subpart 1213.5 -- Purchase Orders
1213.505 Purchase order and related forms.
48 CFR 1213.505-2 Agency order forms in lieu of Optional Forms 347 and
348.
Optional Forms 347 and 348 shall be used as prescribed in FAR 13.505
unless an administration equivalent form has been authorized for use by
the HCA. Exceptions may be granted, on a case by case basis, in order
to accommodate computer-generated purchase order forms. Exception
approval for overprinting (FAR 53.104) is not needed.
(52 FR 44534, Nov. 19, 1987, as amended at 53 FR 28399, July 28,
1988)
48 CFR 1213.505-3 Standard Form 44, Purchase Order-Invoice-Voucher.
(a) In addition to the procedures in FAR 13.505-3; DOT Order 4230.2
Standard Form 44 (SF 44), Purchase Order-Invoice-Voucher contains
guidance on the use of Standard Form 44.
(b) Agency heads are responsible for establishing procedures to
control the use of Standard Form 44 and accounting for all purchases
made using the form, including:
(1) Maintenance of a list of designated individuals authorized to
make purchases using the form;
(2) Controls for issuance of the form to authorized individuals; and
(3) Review of purchase transactions using the form to assure
compliance with authorized procedures.
48 CFR 1213.505-3 PART 1214 -- SEALED BIDDING
48 CFR 1213.505-3 Subpart 1214.2 -- Solicitation of Bids
Sec.
1214.201 Preparation of invitations for bids.
1214.201-1 Uniform contract format.
1214.202 General rules for solicitation of bids.
1214.202-4 Bid samples.
1214.202-5 Descriptive literature.
1214.205 Solicitation mailing lists.
1214.205-1 Establishment of lists.
1214.208 Amendment of invitations for bids.
48 CFR 1213.505-3 Subpart 1214.3 -- Submission of Bids
1214.302 Bid submission.
48 CFR 1213.505-3 Subpart 1214.4 -- Opening of Bids and Award of
Contract
1214.406 Mistakes in bids.
1214.406-3 Other mistakes disclosed before award.
1214.406-4 Mistakes after award.
1214.408 Information to bidders.
1214.408-2 Award of classified contracts.
1214.470 Revalidation of requirements (sealed bidding).
Authority: Sec. 205(C), Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44535, Nov. 19, 1987, unless otherwise noted.
48 CFR 1213.505-3 Subpart 1214.2 -- Solicitation of Bids
1214.201 Preparation of invitations for bids.
48 CFR 1214.201-1 Uniform contract format.
In those cases where the uniform contract format need not be used,
the contract still should be structured to conform to the various
uniform contract format sections as closely as is practicable.
1214.202 General rules for solicitation of bids.
48 CFR 1214.202-4 Bid samples.
The justification required by FAR 14.202-4(d) shall be prepared by
the requiring activity and approved, in writing, by the contracting
officer.
48 CFR 1214.202-5 Descriptive literature.
The justification required by FAR 14.202-5(c) shall be prepared by
the requiring activity and approved, in writing, by the contracting
officer.
1214.205 Solicitation mailing lists.
48 CFR 1214.205-1 Establishment of lists.
Requests for supplemental information shall be attached to the
Standard Form 129 and fowarded to potential suppliers for completion.
48 CFR 1214.208 Amendment of invitations for bids.
Amendments which are substantive in nature shall be subject to the
same review process as was required for issuance of the solicitation.
48 CFR 1214.208 Subpart 1214.3 -- Submission of Bids
48 CFR 1214.302 Bid submission.
As permitted by FAR 14.302(b), a telegraphic bid may be communicated
by means of a telephone call to the designated office.
48 CFR 1214.302 Subpart 1214.4 -- Opening of Bids and Award of Contract
1214.406 Mistakes in bids.
48 CFR 1214.406-3 Other mistakes disclosed before award.
The head of the contracting activity is authorized to make the
determinations under FAR 14.406-3 (a), (b), (c), and (d). This
authority may not be redelegated. Any doubtful case under FAR 14.406-3
may be forwarded for advance decision to the Comptroller General, with a
copy to the senior procurement executive.
(52 FR 44535, Nov. 19, 1987, as amended at 53 FR 28399, July 28,
1988)
48 CFR 1214.406-4 Mistakes after award.
The contracting officer shall make the determination required by FAR
14.406-4(b) after coordination with legal counsel.
1214.408 Information to bidders.
48 CFR 1214.408-2 Award of classified contracts.
Each administration having access to classified information during
the acquisition process shall comply with appropriate security
procedures.
48 CFR 1214.470 Revalidation of requirements (sealed bidding).
In every case where a procurement action has been in process for more
than 1 year from the date of the Procurement Request, the contracting
officer shall revalidate user needs which justify the procurement action
prior to contract award. The revalidation must be accomplished
immediately prior to award.
(52 FR 44535, Nov. 19, 1987, as amended at 53 FR 28399, July 28,
1988)
48 CFR 1214.470 PART 1215 -- CONTRACTING BY NEGOTIATION
48 CFR 1214.470 Subpart 1215.1 -- General Requirements for Negotiation
Sec.
1215.106 Contract clauses.
1215.106-70 Key personnel and facilities.
1215.170 Pre-contract costs.
48 CFR 1214.470 Subpart 1215.4 -- Solicitation and Receipt of Proposals
and Quotations
1215.405 Solicitations for information or planning purposes.
1215.406 Preparing requests for proposals (RFPs) and requests for
quotations (RFQs).
1215.406-1 Uniform contract format.
1215.407 Solicitation provisions.
1215.408 Issuing solicitations.
1215.411 Receipt of proposals and quotations.
1215.413 Disclosure and use of information before award.
48 CFR 1214.470 Subpart 1215.5 -- Unsolicited Proposals
1215.502 Policy.
1215.506 Agency procedures.
48 CFR 1214.470 Subpart 1215.6 -- Source Selection
1215.605 Evaluation factors.
1215.612 Formal source selection.
48 CFR 1214.470 Subpart 1215.8 -- Price Negotiation
1215.803 General.
1215.804 Cost or pricing data.
1215.804-3 Exemptions from or waiver of submission of certified cost
or pricing data.
1215.805 Proposal analysis.
1215.805-4 Technical analysis.
1215.805-5 Field pricing support.
1215.807 Prenegotiation objectives.
1215.807-70 Contents of prenegotiation memorandum.
1215.808 Price negotiation memorandum.
1215.810 Should-cost analysis.
48 CFR 1214.470 Subpart 1215.9 -- Profit
1215.902 Policy.
1215.905 Profit-analysis factors.
1215.905-70 Methods.
1215.905-71 Profit/fee objective for non-commercial enterprises.
48 CFR 1214.470 Subpart 1215.70 -- Revalidation of Requirements
(Negotiated)
1215.7000 Policy.
Authority: Sec. 205(c) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44536, Nov. 19, 1987, unless otherwise noted.
48 CFR 1214.470 Subpart 1215.1 -- General Requirements for Negotiation
1215.106 Contract clauses.
48 CFR 1215.106-70 Key personnel and facilities.
Whenever contractor selection (either sole source or competitive
acquisition) has been substantially predicated on the contractor's
possession of special capabilities (i.e. personnel and/or facilities)
the contracting officer shall include the clause at 1252.215-71 ''Key
Personnel and Facilities'' in the awarded contract.
48 CFR 1215.170 Pre-contract costs.
(a) Except as authorized in 1215.170(b), no DOT employee shall
encourage or authorize any potential contractor to incur costs prior to
contract award.
(b) No contract provision for reimbursement of a contractor's
precontract costs shall be negotiated or included in any contractual
document prior to approval of such provision by the head of the
contracting activity. The request for HCA approval shall include the
following:
(1) Identification of the requirement;
(2) Name of the proposed contractor;
(3) Brief description of the work for which precontract costs are
necessary;
(4) Total amount of pre-contract costs involved and approximate
duration of the period over which costs will be incurred;
(5) Reason(s) why use of pre-contract costs are necessary and in the
best interest of the Government.
48 CFR 1215.170 Subpart 1215.4 -- Solicitation and Receipt of Proposals and Quotations
48 CFR 1215.405 Solicitations for information or planning purposes. for
quotations (RFQs).
All determinations to issue solicitations for information or planning
purposes shall be approved at least one level above the contracting
officer.
1215.406 Preparing requests for proposals (RFPs) and requests
48 CFR 1215.406-1 Uniform contract format.
In those cases where the uniform contract format is optional or does
not apply, the solicitation and contract should be structured to conform
to the various uniform contract format sections as closely as is
practicable.
48 CFR 1215.407 Solicitation provisions.
(a) The contracting officer shall insert the provision at 1252.209-71
''Disclosure of Conflicts of Interest'', in accordance with 1209.508-1.
(b) The contracting officer may insert a provision substantially the
same as that at 1252.215-72, Cost Proposal Instructions, in requests for
proposals when cost or pricing data are to be obtained.
(c) When automatic data processing (ADP) hardware and/or software
will be acquired either as part or all of the acquisition, contracting
officers may include Form DOT F. 4220.21 in the request for proposal
(see 1253.215-70(a)). The form would then be completed by offerors and
submitted with SF 1411 and other supporting data.
48 CFR 1215.408 Issuing solicitations.
Each administration having access to classified information during
the acquisition process shall comply with appropriate security
procedures.
48 CFR 1215.411 Receipt of proposals and quotations.
The requirement set forth in 1215.408 applies.
48 CFR 1215.413 Disclosure and use of information before award.
The alternate procedure at FAR 15.413-2 shall be used in lieu of
those prescribed at FAR 15.413-1. Each administration shall establish
procedures to implement this section. In so doing, the principles in
FAR 15.413-1 (a) and (b) and the stipulations contained in FAR
15.413-2(f) shall be followed.
48 CFR 1215.413 Subpart 1215.5 -- Unsolicited Proposals
48 CFR 1215.502 Policy.
Acceptance of unsolicited proposals is subject to the requirements of
1206.302-1.
48 CFR 1215.506 Agency procedures.
(a) Each administration shall establish procedures for controlling
the receipt, evaluation, and timely disposition of unsolicited
proposals.
(b) A central receiving office shall be established to implement
these procedures. Each central receiving office shall:
(1) Serve as the point of contact with the submitter;
(2) Maintain records showing the receipt and status of unsolicited
proposals; and
(3) Coordinate with other administrations or other Federal agencies
when appropriate.
(c) An information copy of central office designations and any
implementing instructions will be furnished to the Senior Procurement
Executive.
48 CFR 1215.506 Subpart 1215.6 -- Source Selection
48 CFR 1215.605 Evaluation factors.
Actual numerical weights, which may be employed in the evaluation of
technical proposals, shall not be disclosed in the solicitation.
48 CFR 1215.612 Formal source selection.
DOT's procedures for formal source selection are contained in DOT
Order 4200.11, Source Selection, which is available in DOT contracting
offices. The procedures described in this DOT Order are consistent with
requirements of the FAR.
48 CFR 1215.612 Subpart 1215.8 -- Price Negotiation
48 CFR 1215.803 General.
(a) The procurement request initiator shall provide, as part of the
procurement request, an independent Government estimate for all
acquisitions in excess of $25,000. This estimate shall include, to the
extent applicable, the major cost areas of labor (by category),
materials, travel, consultant, computer usage, etc. The level of detail
and rationale for the estimate shall be commensurate with the complexity
and value of the acquisition. Any prior cost experience the Government
has had in buying the same, or like items, should be referenced. The
contracting officer may require, at his/her discretion, an estimate
where the anticipated cost is less than $25,000. Under no circumstances
should the estimate be based on information furnished solely by a
potential contractor who may be considered for award.
(b) Unreasonable profit or fee demands made by an offeror, if not
resolved by the contracting officer, shall be referred to the HCA.
1215.804 Cost or pricing data.
48 CFR 1215.804-3 Exemptions from or waiver of submission of certified
cost or pricing data.
(a) Administrations shall establish monitoring procedures to ensure
that the exemptions from the requirement to submit certified cost or
pricing data (as specified in the FAR) are properly applied.
(b) Waivers should rarely be granted and utmost discretion must be
exercised.
1215.805 Proposal analysis.
48 CFR 1215.805-4 Technical analysis.
(a) The head of the agency shall ensure that contracting activities
are properly supported by agency technical personnel in the proposal
evaluation process.
(b) A copy of the technical evaluation should be provided to the
auditor for incorporation into the audit report whenever feasible.
48 CFR 1215.805-5 Field pricing support.
(a) Contracting officers normally shall allow a minimum of 30 days
for receipt of an audit report. Exceptions to this 30-day minimum
period may be made only when unusually urgent program considerations
require a shorter time. Urgency caused by end of year funding
considerations shall not be used as a justification for requiring a
shorter period for advisory audit review.
(b) Administrations shall establish procedures for monitoring audit
waivers. Urgency caused by end of year funding considerations shall not
be used as justification for waiving audit.
(c) Administrations shall establish procedures for requesting and
handling audit or other field pricing reports.
48 CFR 1215.807 Prenegotiation objectives.
(a) Administrations shall establish procedures for review and
approval of prenegotiation objectives. These procedures shall require
Prenegotiation Memoranda (see 1215.807-70 of this subpart) for each
administration's high dollar and/or complex acquisitions. The approval
levels established should be commensurate with the value and complexity
of the proposed acquisition. Under no circumstances shall the
procedures undermine the contracting officer's responsibility for
determining a fair and reasonable price.
(b) Written documentation of all prenegotiation objectives is
required and shall be made a part of the permanent contract file. (See
also 1215.808(c) of this subpart).
48 CFR 1215.807-70 Content of prenegotiation memorandum.
The Prenegotiation Memorandum (PM) shall fully explain the
Government's position as well as identify and justify the elements that
are acceptable as proposed. Since the PM will ultimately become the
basis for negotiation, it should be structured to provide an audit trail
to the Price Negotiation Memorandum (see FAR 15.808 and 1215.808).
Generally, the PM should address the following subjects in the order
presented.
(a) Introduction. Include a brief description of the acquisition and
a brief history indicating the extent of competition and results
thereof. Indentify the prospective contractor(s) and the place(s) of
performance (if not evident from the description of the acquisition),
summarize the negotiation schedule, and identify the Government
negotiating team members by name and position.
(b) Special features and requirements. In this area, discuss any
special features (and related cost impact) of the acquisition including
such items as:
(1) Letter contract or pre-contract cost requirements;
(2) Government property to be furnished;
(3) Contract option requirements;
(4) Contractor/Government investment in facilities and equipment (and
any modernization thereof to be provided by the contractor/Government);
and
(5) Any deviations, special clauses or conditions anticipated.
(c) Cost and profit/fee analysis. Include a parallel tabulation by
element of cost and profit/fee of the offeror's proposal, the
Government's negotiation objective, the auditor/field pricing position,
and the Government's maximum position. For each element of cost,
compare the offeror and Government estimates and explain how the latter
was developed, including the estimating assumptions and projection
techniques employed. Further, explain how historical costs, including
costs incurred under a letter contract (if applicable), were used in
developing the negotiation objective. Significant differences between
the field pricing report (including any audit reports) and the
negotiation objectives and/or offeror's proposal should be highlighted
and explained. Also, technical evaluation results which caused the
Government's cost negotiation objectives to significantly differ from
the offeror's proposed costs, such as differences in staffing, should be
highlighted and explained. Further, there should be an identification
and brief discussion of each major subcontract involved, citing the type
of subcontract and stating the degree of analysis performed on the
subcontract cost estimate. In addition, the rationale for the
Government's profit/fee objectives, and a completed copy of the DOT
''Weighted Guidelines, Profit/Fee Objective'' (DOT Form 4220.32), shall
be included.
(d) Type of contract contemplated. Explain the type of contract
contemplated and the reasons for its suitability. For an incentive
contract, including award fee contracts, describe the planned profit/fee
patterns, share lines, ceilings, and so forth.
(e) Negotiation approval sought. Indicate the negotiation approval
sought.
(52 FR 44536, Nov. 19, 1987, as amended at 53 FR 28400, July 28,
1988)
48 CFR 1215.808 Price negotiation memorandum.
(a) A price negotiation memorandum is required for all negotiated
acquisitions and modifications, regardless of dollar value. The extent
and complexity of the memorandum shall depend upon the nature of the
individual contract. The contracting officer shall include an
affirmative statement in the memorandum that the price is fair and
reasonable and give the basis for the determination. For those unusual
circumstances where a fair and reasonable price is not readily
achievable by the contracting officer, and the matter is referred to a
higher level in the administration, the manager who makes the final
decision on the matter shall sign an affirmative statement that the
price finally established is acceptable.
(b) The price negotiation memorandum serves as a detailed summary of:
(1) The technical, business, contractual, pricing, and other aspects
of the contract negotiated, and
(2) The methodology and rationale used in arriving at the final
negotiated agreement.
(c) Normally, the price negotiation memorandum is a ''stand alone''
document. However, when a prenegotiation memorandum (see 1215.807-70)
has been prepared, the subsequent price negotiation memorandum need
explain:
(1) Only the differences between the prenegotiation position and the
final negotiated settlement, and the basis for those differences; and
(2) The areas identified in FAR 15.808(a).
(d) The contracting officer shall sign and date the memorandum.
48 CFR 1215.810 Should-cost analysis.
A should-cost analysis will be conducted when required by the head of
the contracting activity. The format for the should-cost team report
may be that used by DOD or in a format required by the head of the
contracting activity.
48 CFR 1215.810 Subpart 1215.9 -- Profit
48 CFR 1215.902 Policy.
(a) Use of a structured approach for determining profit or fee is
required as specified at FAR 15.902(a) except for:
(1) Architect-engineering contracts;
(2) Management contracts for operation and/or maintenance of
Government facilities;
(3) Construction contracts;
(4) Contracts primarily requiring delivery of material supplied by
subcontractors;
(5) Termination settlements;
(6) Cost-plus-award-fee-contracts;
(7) Unusual pricing situations where the weighted guidelines method
has been determined to be unsuitable. Such exceptions shall be
authorized by the head of the contracting activity.
(b) If the contracting officer makes a written determination that the
pricing situation meets any of the circumstances set forth in
1215.902(a) other methods for establishing the profit objective may be
used. These methods shall be supported in a manner similar to that used
in the weighted guidelines (profit factor breakdown and documentation of
profit objectives); however, investment or other factors that would not
be applicable to the contract shall be excluded from the profit
objective determination. (See also FAR 15.905-1.) It is intended that
the methods will result in profit objectives for non-capital-intensive
contracts that are below those generally developed for capital-intensive
contracts.
1215.905 Profit-analysis factors.
48 CFR 1215.905-70 Methods.
(a) DOT Form 4220.32, ''Weighted Guidelines Profit/Fee Objective'',
shall be used to compute profit or fee for actions covered under
1215.902.
(b) Profit/fee objectives shall be computed according to the
following criteria:
(1) The profit/fee objective for manufacturing contracts shall be
computed, except as provided in the following sentence, using the
manufacturing weighted guidelines method which provides profit
opportunity based on facilities capital investment. Certain contracts
for the manufacture of small quantities of high technology supplies and
equipment may not require a significant amount of facilities; in such
cases, the research and development weighted guidelines method shall be
used.
(2) The profit/fee objective for research and development contracts
shall be computed using the research and development weighted guidelines
method unless, in the judgment of the contracting officer, a significant
amount of facilities is required for efficient contract performance, in
which case the manufacturing weighted guidelines shall be used.
(3) The profit/fee objective for service contracts shall be computed
using the service contract weighted guidelines method unless, in the
judgment of the contracting officer, a significant amount of facilities
is required for efficient contract performance, in which case the
manufacturing weighted guidelines shall be used.
(4) In determining whether a particular contract shall be classsified
as manufacturing, research and development, or services, primary
reliance shall be placed on the nature of the work to be performed.
(5) Generally, assignment of specific percentages from within the
''profit weight ranges'' shown in columns 6 (c), (d) or (e) of DOT Form
4220.32 can be established after appropriate analysis of the elements of
cost (i.e. items 7 through 12 of DOT Form 4220.32). However, to ensure
consistency of contract risk assessment for DOT acquisitions, the
assigned weight (%) shall generally be selected as follows:
(i) Type of contract and percentage ranges for profit objectives
developed by using the manufacturing weighted guidelines method:
(ii) Type of contract and percentage ranges for profit objectives
developed by using the research and development weighted guidelines
method:
(iii) Type of contract and percentage ranges for profit objectives
developed by using the service contract weighted guidelines method:
(iv) Time and material and labor-hour contracts priced on a time and
material basis shall be considered to be cost-plus-fixed-fee contracts
for the purpose of establishing a profit weight in the evaluation of the
contractor's assumption of contract cost risk.
(6) For ''manufacturing'' contracts where contractor facilities are
required and will benefit the fulfillment of contract requirements, DD
Form 1861 ''Contract Facilities Capital Cost of Money'' shall be
completed in accordance with the instructions on the reverse thereof,
and the dollar amount of ''Contract Facilities Capital Employed'' (line
8 of DD Form 1861) shall be inserted in column 6(b), item 16 of DOT Form
4220.32.
(52 FR 44536, Nov. 19, 1987, as amended at 53 FR 28400, July 28,
1988)
48 CFR 1215.905-71 Profit/fee objective for non-commercial enterprises.
(a) In determining the fee or profit, consideration must be given to
the tax posture of the organization. A fair and reasonable profit to a
non-profit or not-for-profit organization with tax exempt status should
be considerably lower than a fee to a commercial enterprise with no tax
exempt status.
(b) The weighted guidelines method was designed for arriving at
profit or fee objectives for other than nonprofit organizations.
However, if appropriate adjustments are made to reflect differences
between profit and non-profit organizations, the weighted guidelines
method can be used as a basis for arriving at fee objectives for
non-profit organizations. Therefore, the policy of the Department is to
use the weighted guidelines method, as modified in paragraph (b)(2) of
this section, to establish fee objectives that will stimulate efficient
contract performance and attract the best capabilities of nonprofit
organizations to Government oriented activities. The modifications
shall not be applied as deductions against historical fee levels but to
the fee objective for such a contract as calculated under the weighted
guidelines method.
(1) As used in this subpart, nonprofit organizations are defined as
those business entities organized and operated exclusively for
charitable, scientific, or educational purposes, of which no part of the
net earnings accrue to the benefit of any private shareholder or
individual, of which no substantial part of the activities is carrying
on propaganda or otherwise on behalf of any candidate for public office,
and which are exempt from Federal income taxation under section 501 of
the Internal Revenue Code.
(2) For contracts with nonprofit organizations where fees are
involved, the following adjustments are required in the weighted
guidelines method:
(i) An adjustment of minus one percent of the total effort shall be
assigned in all cases where the manufacturing weighted guidelines method
is used. An adjustment of minus three percent of the total effort shall
be assigned in all cases where the research and development or services
weighted guidelines method is used.
(ii) The weight range under ''Contractor Cost Risk'' shall be minus
one percent to zero in lieu of zero percent to eight percent for
contracts with those nonprofit organizations.
48 CFR 1215.905-71 Subpart 1215.70 -- Revalidation of Requirements (Negotiated)
48 CFR 1215.7000 Policy.
In every case where a procurement action has been in process for more
than 1 year from the date of the Procurement Request, the contracting
officer shall revalidate user needs which justify the procurement
action. The revalidation should be accomplished prior to requesting
best and final offers (BAFO's), or immediately prior to award when
BAFO's are not requested.
(52 FR 44536, Nov. 19, 1987, as amended at 53 FR 28400, July 28,
1988)
48 CFR 1215.7000 PART 1216 -- TYPES OF CONTRACTS
48 CFR 1215.7000 Subpart 1216.1 -- Selecting Contract Types (Reserved)
48 CFR 1215.7000 Subpart 1216.2 -- Fixed-Price Contracts
Sec.
1216.203 Fixed-price contracts with economic price adjustment.
1216.203-4 Contract clauses.
1216.203-470 Adjustment based on cost indices of labor or material.
1216.203-471 Solicitation provision.
1216.206 Fixed-ceiling-price contracts with retroactive price
redetermination.
1216.206-3 Limitations.
48 CFR 1215.7000 Subpart 1216.3 -- Cost Reimbursement Contracts
1216.301 General.
1216.301-3 Limitations.
48 CFR 1215.7000 Subpart 1216.4 -- Incentive Contracts
1216.403 Fixed-price incentive contracts.
1216.404 Cost-reimbursement incentive contract.
1216.404-2 Cost-plus-award-fee contracts.
1216.404-270 Contract clauses.
48 CFR 1215.7000 Subpart 1216.5 -- Indefinite-Delivery Contracts
1216.503 Requirements contracts.
1216.504 Indefinite-quantity contracts.
48 CFR 1215.7000 Subpart 1216.6 -- Time-and-Materials, Labor-Hour, and
Letter Contracts
1216.603 Letter contracts.
1216.603-70 Procedures.
Authority: Sec. 205(C), Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44539, Nov. 19, 1987, unless otherwise noted.
48 CFR 1215.7000 Subpart 1216.1 -- Selecting Contract Types (Reserved)
48 CFR 1215.7000 Subpart 1216.2 -- Fixed-Price Contracts
1216.203 Fixed-price contracts with economic price adjustment.
48 CFR 1216.203-4 Contract clauses.
When none of the clauses prescribed in FAR 16.203-4 is appropriate,
the contracting officer may use an alternate clause approved by the head
of the contracting activity.
48 CFR 1216.203-470 Adjustment based on cost indices of labor or
material.
(a) All economic price adjustment clauses utilizing indices must be
approved by the head of the contracting activity.
(b) The contracting officer may also determine it appropriate to
provide for certain economic price adjustment arrangements between the
prime contractor and subcontractors to properly allocate risks. In such
circumstances, provision for incorporation of price adjustment clauses
in specified subcontracts should be included in the price adjustment
provision of the prime contract.
48 CFR 1216.203-471 Solicitation provision. redetermination.
The contracting officer shall insert the provision at 1252.216-71,
''Evaluation of Proposals Subject to Economic Price Adjustment'' in all
solicitations that contain an economic price adjustment clause.
1216.206 Fixed-ceiling-price contracts with retroactive price
48 CFR 1216.206-3 Limitations.
The head of the contracting activity may approve the use of a
fixed-ceiling-price contract with retroactive price redetermination.
48 CFR 1216.206-3 Subpart 1216.3 -- Cost Reimbursement Contracts
1216.301 General.
48 CFR 1216.301-3 Limitations.
Each administration shall establish a format for the determination
and findings (D&F) required by FAR 16.301-3(c). The D&F shall cover all
the elements set forth in FAR 16.301-3 and shall be executed by the
contracting officer.
48 CFR 1216.301-3 Subpart 1216.4 -- Incentive Contracts
48 CFR 1216.403 Fixed-price incentive contracts.
The determination and findings required by FAR 16.403(c) shall be
executed by the contracting officer.
1216.404 Cost-reimbursement incentive contract.
1216.404-2 Cost-plus-award-fee contracts.
48 CFR 1216.404-270 Contract clauses.
The contracting officer shall insert the following clauses in award
fee contracts. Each clause may be modified to meet individual
situations.
(a) 1252.216-72, Estimated Cost, Base Fee, and Award Fee;
(b) 1252.216-73, Payment of Base and Award Fee;
(c) 1252.216-74, Determination of Award Fee;
(d) 1252.216-75, Performance Evaluation Plan;
(e) 1252.216-76, Distribution of Award Fee.
48 CFR 1216.404-270 Subpart 1216.5 -- Indefinite-Delivery Contracts
48 CFR 1216.503 Requirements contracts.
The procurement request initiator shall prepare a written statement
outlining the basis and methodology for determining the estimated
quantity under a requirements contract. This statement shall be
fowarded with the procurement request.
48 CFR 1216.504 Indefinite-quantity contracts.
The procurement request initiator shall prepare a written statement
outlining the basis and methodology for determining the specified
minimum and estimated maximum quantity. This statement shall be
fowarded with the procurement request.
48 CFR 1216.504 Subpart 1216.6 -- Time-and-Materials, Labor-Hour, and
Letter Contracts
1216.603 Letter contracts.
48 CFR 1216.603-70 Procedures.
(a) Requests for authority to issue letter contracts shall be
approved by the head of the contracting activity. The requirements of
FAR Part 6 and Part 1206 shall be followed when awarding or
contemplating award of a letter contract. The request for authority to
issue a letter contract shall include the following:
(1) Name and address of proposed contractor.
(2) Location were contract is to be performed.
(3) Contract number, including modification number if applicable.
(4) Brief description of the work or services to be performed.
(5) Performance period or delivery schedule.
(6) Amount of letter contract.
(7) Performance period of letter contract.
(8) Estimated total amount of definitive contract.
(9) Type of definitive contract to be executed (fixed price,
cost-plus-award-fee, etc.).
(10) Statement that definitive contract will contain all required
clauses or that deviations therefrom have been approved.
(11) Statement as to the necessity and advantage to the Government of
the use of the proposed letter contract, and that no other contract type
is suitable.
(12) If a modification, date of letter contract approval and of
execution.
(13) Statement as to the extent or degree of competition obtained
during the preaward process leading up to the request for authority to
issue subject letter contract. A statement shall also be included
indicating the status of the ''Justification for Other Than Full and
Open Competition'', in those instances when it is required under FAR
Part 6 and award is contemplated prior to approval of thu justification
for other than full and open competition.
(b) Profit or fee under letter contracts, shall not be paid until the
contract has been definitized.
(c) In addition to the requirements set forth at FAR 16.603-2 (c)
through (e) and FAR 16.603.4, the letter contract shall include:
(1) Signature of the contracting officer.
(2) Provision for written acceptance by the contractor.
(3) Statement of work.
(4) Provision for delivery or performance schedule and balance of
inspection and acceptance.
(5) Statement that no profit or fee shall be paid under the letter
contract.
(6) List of Government property and value, if the property is being
provided prior to the scheduled date of definitization.
48 CFR 1216.603-70 PART 1217 -- SPECIAL CONTRACTING METHODS
48 CFR 1216.603-70 Subpart -- 1217.1 -- Multi-year Contracting
Sec.
1217.102 Policy.
1217.102-3 Objectives.
48 CFR 1216.603-70 Subpart 1217.4 -- Leader Company Contracting
1217.402 Limitations.
48 CFR 1216.603-70 Subpart 1217.70 -- Fixed Price Contracts for Vessel
Repair, Alteration or Conversion
1217.7001 Clauses.
48 CFR 1216.603-70 Subpart 1217.71 -- Shared Energy Savings Contracting
1217.7100 Policy.
Authority: Sec. 205(C) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)) 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44540, Nov. 19, 1987, unless otherwise noted.
48 CFR 1216.603-70 Subpart 1217.1 -- Multi-year Contracting
1217.102 Policy.
48 CFR 1217.102-3 Objectives.
The head of the contracting activity is designated as the approval
authority for all clause modifications described in FAR 17.102-3(d).
This authority may not be redelegated.
48 CFR 1217.102-3 Subpart 1217.4 -- Leader Company Contracting
48 CFR 1217.402 Limitations.
Leader company contracting shall not be used without the written
authorization of the Senior Procurement Executive.
48 CFR 1217.402 Subpart 1217.70 -- Fixed Price Contracts for Vessel Repair, Alteration or Conversion
48 CFR 1217.7001 Clauses.
(a) Clauses set forth in 1252.217-71 through 1252.217-80 shall be
included in sealed bid fixed-price contracts for vessel repair,
alteration or conversion, and which are to be performed within the
United States, its possessions, or Puerto Rico. Unless inappropriate,
the clauses should also be included in negotiated contracts and
contracts to be performed outside the United States. The Maritime
Administration may deviate from these requirements, as appropriate, in
accordance with 1201.103(b).
(b) The clause at 1252.217-81, Guarantee, shall be used where general
guarantee provisions are deemed desirable by the contracting officer.
When inspection and acceptance tests will afford full protection to the
Government in ascertaining conformance to specifications and the absence
of defects and deficiencies, no guarantee clause for that purpose shall
be included in the contract. The customary guarantee period, to be
inserted in the first sentence of the clause at 1252.217-81, Guarantee,
is 60 days. However, in certain instances, the contracting officer may
desire to include a clause in a contract for a guarantee period of more
than 60 days. In such instances, and where, after full inquiry, it has
been determined that such longer guarantee period will not involve
increased costs, a longer guarantee period may be substituted for the
usual 60 days. Where the full inquiry discloses that such longer
guarantee period will involve, or is reasonably expected to involve,
increased costs, such fact and the reason for the need for such longer
period shall be set forth in letter form to the head of the contracting
activity, requesting approval for use of guarantee period in excess of
60 days. Upon approval, the longer period may be inserted in the first
sentence of the clause at 1252.217-81, Guarantee.
(c) The clause at 1252.217-70, Index for Specifications, shall be
used when appropriate.
(52 FR 44540, Nov. 19, 1987, as amended at 53 FR 28400, July 28,
1988)
48 CFR 1217.7001 Subpart 1217.71 -- Shared Energy Savings Contracting
48 CFR 1217.7100 Policy.
Contracts for shared energy savings of up to 25 years in length are
permitted under Title VIII of the National Energy Conservation Policy
Act, as amended. Shared energy savings arrangements are appropriate
where a contractor makes improvements and/or operating changes to
Federally-owned buildings and facilities to improve energy efficiency,
at no cost to the Federal Government. Proposed actions under this
section should be coordinated with the Office of Acquisition and Grant
Management (M-60).
48 CFR 1217.7100 SUBCHAPTER D -- SOCIOECONOMIC PROGRAMS
48 CFR 1217.7100 PART 1219 -- SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS
48 CFR 1217.7100 Subpart 1219.2 -- Policies
Sec.
1219.201 General policy.
1219.201-70 Director, Office of Small and Disadvantaged Business
Utilization.
1219.201-71 Small and Disadvantaged Business Utilization Specialist.
48 CFR 1217.7100 Subpart 1219.5 -- Set-Asides for Small Business
1219.501 General.
1219.503 Setting aside a class of acquisitions.
1219.503-70 Class set-aside for construction.
48 CFR 1217.7100 Subpart 1219.6 -- Certificates of Competency and
Determinations of Eligibility
1219.602 Procedures.
1219.602-1 Referral.
48 CFR 1217.7100 Subpart 1219.7 -- Subcontracting With Small Business
and Small Disadvantaged Business Concerns
1219.705 Responsibilities of the contracting officer under the
subcontracting assistance program.
1219.705-2 Determining the need for a subcontracting plan.
1219.705-6 Postaward responsibilities of the contracting officer.
1219.705-70 Synopsis of contracts containing Pub. L. 95-507
subcontracting plans and goals.
Authority: Sec. 205(C), Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44541, Nov. 19, 1987, unless otherwise noted.
48 CFR 1217.7100 Subpart 1219.2 -- Policies
48 CFR 1219.201 General policy.
The heads of the agencies shall be responsible for recommending goals
for small, and small disadvantaged business utilization for programs
under their cognizance. The recommended goals shall be developed in
collaboration with the head of the contracting activity, program
officials, the Small and Disadvantaged Business Utilization Specialists
(SDBUS) and shall take into account both past performance relative to
such goals and the number, type, and dollar value of acquisitions
projected for the ensuing fiscal year.
(52 FR 44541, Nov. 19, 1987, as amended at 53 FR 28400, July 28,
1988)
48 CFR 1219.201-70 Director, Office of Small and Disadvantaged Business
Utilization.
The Director, OSDBU, is responsible for the implementation and
execution of the small, and small disadvantaged business programs
required by sections 8 and 15 of the Small Business Act, as amended, and
provides guidance and advice, as appropriate, to agency program and
contracts officials. The Director, OSDBU, is the central point of
contact for general inquiries concerning the small and disadvantaged
business programs from industry, the Small Business Administration
(SBA), and from the Congress. The Director, OSDBU, shall represent the
Department in discussions with other Government agencies on small and
small disadvantaged business matters.
48 CFR 1219.201-71 Small and Disadvantaged Business Utilization
Specialist.
(a) SDBUSs shall be appointed by the heads of contracting activities.
(b) The SDBUS shall perform the following duties, as appropriate:
(1) Maintain a program designed to locate capable small and small
disadvantaged business sources for current and future acquisitions;
(2) Coordinate inquiries and requests for advice from small and small
disadvantaged business concerns on acquisition matters;
(3) Review procurement requests to:
(i) Assure that small business concerns will be afforded an equitable
opportunity to compete;
(ii) As appropriate, initiate recommendations for small business
set-asides, (individual and class) or offers of requirements to the SBA
for the 8(a) program;
(iii) Identify possible breakout of items or services suitable for
acquisition from small business and small disadvantaged business
concerns;
(4) Take action to assure the availability of adequate specifications
and drawings, when necessary, to obtain small business participation in
an acquisition. When small business concerns cannot be given an
opportunity on a current acquisition, initiate action, in writing, with
appropriate technical and contracting personnel to ensure that necessary
specifications and/or drawings for future acquisitions are available.
(5) Advise small business with respect to the financial assistance
available under existing laws and regulations and assist such concerns
in applying for financial assistance;
(6) Participate in the evaluation of prime contractor's small
business subcontracting programs;
(7) Assure that adequate records are maintained, and accurate reports
prepared, concerning small business participation in acquisition
programs;
(8) Make available to SBA copies of solicitations when so requested;
(9) Act as liaison with the appropriate SBA office or representative
in connection with set-asides, certificates of competency, size
classification, and any other matter concerning the small and small,
disadvantaged business programs; and
(10) May participate, if required, in Business Opportunity/Federal
Procurement Conference, and other Government-industry conferences and
meetings.
48 CFR 1219.201-71 Subpart 1219.5 -- Set-Asides for Small Business
48 CFR 1219.501 General.
The SDBUS shall initiate recommendations to the contracting officer
for small business set-asides with respect to individual acquisitions or
classes of acquisitions or portions thereof.
1219.503 Setting aside a class of acquisitions.
48 CFR 1219.503-70 Class set-aside for construction.
(a) Each proposed acquisition for construction estimated to cost
$2,000,000 or less shall be set-aside for exclusive small business
participation. Such set-asides shall be considered to be unilateral
small business set-asides, and shall be withdrawn in accordance with the
procedure of FAR 19.506 only if found not to serve the best interest of
the Government.
(b) Small business set-aside perferences for construction acquisition
in excess of $2,000,000 shall be considered on a case-by-case basis.
48 CFR 1219.503-70 Subpart 1219.6 -- Certificates of Competency and
Determinations of Eligibility
1219.602 Procedures.
48 CFR 1219.602-1 Referral.
A copy of the documentation supporting the determination that a small
business concern is not responsible, as required by FAR 19.602-1(a),
shall be transmitted to the Director, OSDBU, concurrently with the
submission of a copy of the documentation to the appropriate SBA
Regional Office.
48 CFR 1219.602-1 Subpart 1219.7 -- Subcontracting With Small Business
and Small Disadvantaged Business Concerns subcontracting assistance
program.
1219.705 Responsibilities of the contracting officer under the
48 CFR 1219.705-2 Determining the need for a subcontracting plan.
A copy of all determinations that there are no subcontracting
opportunities (see FAR 19.705-2(c)) shall be provided to the Director,
OSDBU.
48 CFR 1219.705-6 Postaward responsibilities of the contracting officer.
A copy of each approved small business subcontracting plan, shall be
provided to the Director, OSDBU.
48 CFR 1219.705-70 Synopsis of contracts containing Pub. L. 95-507
subcontracting plans and goals.
The synopsis of contract award, where applicable, shall include a
statement identifying the contract as one containing Pub. L. 95-507
subcontracting plans and goals.
48 CFR 1219.705-70 PART 1222 -- APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
48 CFR 1219.705-70 Subpart 1222.1 -- Basic Labor Policies
Sec.
1222.101 Labor relations.
1222.101-3 Reporting labor disputes.
1222.101-70 Admittance of union representatives to DOT installations.
1222.101-71 Contract clauses.
48 CFR 1219.705-70 Subpart 1222.3 -- Contract Work Hours and Safety
Standards Act
1222.303 Administration and enforcement.
48 CFR 1219.705-70 Subpart 1222.6 -- Walsh-Healey Public Contracts Act
1222.608 Procedures.
1222.608-2 Determination of eligibility.
1222.608-3 Protests against eligibility.
1222.608-4 Award pending final determination.
1222.608-6 Postaward.
48 CFR 1219.705-70 Subpart 1222.70 -- Service Contract Act of 1965
1222.7001 General.
1222.7002 Contract clauses.
48 CFR 1219.705-70 Subpart 1222.71 -- Administration Labor Advisor
1222.7101 Administration labor procedures.
48 CFR 1219.705-70 Subpart 1222.72 -- Fair Labor Standards Act of 1938
1222.7201 General.
48 CFR 1219.705-70 Subpart 1222.73 -- Notification to 8(a)
Subcontractors
1222.7301 Requirements.
Authority: Sec. 205(C), Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)); 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44542, Nov. 19, 1987, unless otherwise noted.
48 CFR 1219.705-70 Subpart 1222.1 -- Basic Labor Policies
1222.101 Labor relations.
48 CFR 1222.101-3 Reporting labor disputes.
(a) When a strike or labor dispute occurs or is anticipated which
has, or is expected to have, a serious impact on DOT operations or when
for any other reason notification of the administration's headquarters
is warranted, the contracting officer shall report the following
information to the administration labor advisor, if appointed or
designated official, in accordance with administration procedures (see
Subpart 1222.71):
(1) Identification and location of strike, contract number,
contractor's name, and name of contractor's representative at the plant
or construction site.
(2) Urgency or criticality of affected contract.
(3) Date strike began or may begin.
(4) Main issues involved.
(5) Name and number of local union and name and address of cognizant
local union official.
(6) Evaluation of strike situation with regard to possibilities of
settlement.
(7) Current apparent temper of the work site situation with regard to
ingress and egress.
(8) Number of employees affected.
(9) Participation, if any, by the Federal Mediation and Conciliation
Service or by a state mediation agency.
(10) If the acquisition is urgent and the strike appears likely to be
one of extended duration, include comment on the feasibility of
acquisition from an alternate source.
(b) When a strike or labor dispute at the plant of a subcontractor is
an actual or potential threat to timely completion of the DOT contract
and when such delay will be a serious handicap to operations, the above
report shall contain the following in lieu of the information indicated
above.
(1) Urgency or criticality of affected contract.
(2) Description and quantity of the material tied up by strike.
(3) Percent completion of contractor's order in supplier's plant.
(4) Evaluation of strike situation with regard to possibilities of
settlement. (This may be obtained from the DOT contractor or from the
subcontractor.)
(5) Contractor's position as to use of alternate supply sources.
(c) Upon settlement of a strike or labor dispute reported under
paragraph (a) or (b) of this section, the administration labor advisor,
or designated official, shall be informed as to the date on which work
was resumed.
48 CFR 1222.101-70 Admittance of union representatives to DOT
installations.
It is the Department's policy to admit accredited labor union
representatives of contractor employees to DOT installations to visit
work sites for the purpose of transacting business with contractors,
their employees, or union stewards pursuant to existing collective
bargaining agreements; provided that their presence and activities will
not interfere with the work progress or violate the safety or security
regulations applicable to installation visitors. Restrictions in excess
of those imposed on other visitors transacting business at the
installation should not be imposed on such employee representatives.
Permission to visit an installation shall not include the right to hold
meetings, collect dues, or make speeches. In the event employee
representatives are denied entry to a work site for any reason, a report
of such denial will immediately be sent to the administration labor
advisor, or designated official. Such report shall include the reasons
for denial, including names of representatives denied entry and their
union affiliation, including local union number.
48 CFR 1222.101-71 Contract clauses.
(a) The contracting officer shall insert the clause at 1252.222-71,
''Strikes or Picketing Affecting Timely Completion of the Contract
Work'', in all FAA construction contracts. The clause may also be used
in construction contracts awarded by other administrations.
(b) The contracting officer shall insert the clause at 1252.222-72,
''Strikes or Picketing Affecting Access to FAA Facility'', in all
contracts requiring work at an FAA facility. The clause, appropriately
modified, may also be used by other administrations.
48 CFR 1222.101-71 Subpart 1222.3 -- Contract Work Hours and Safety Standards Act
48 CFR 1222.303 Administration and enforcement.
The contracting agency has primary responsibility for administration
and enforcement of the overtime provisions of the Contract Work Hours
and Safety Standards Act. While the contractor is not required to
submit payrolls to the contracting officer unless the Davis-Bacon Act
applies, the contracting officer is responsible for assuring by other
means that laborers and mechanics are paid any overtime premium due them
under the Contract Work Hours and Safety Standards Act. This may be
done by reviewing payroll records at the contractor's office and by
interviewing employees.
48 CFR 1222.303 Subpart 1222.6 -- Walsh-Healey Public Contracts Act
1222.608 Procedures.
48 CFR 1222.608-2 Determination of eligibility.
The contracting officer shall transmit the information described in
FAR 22.608-2 (f)(1)(ii) and (f)(2). The contracting officer shall
furnish a copy of such transmittals to the administration labor advisor,
or designated official (see Subpart 1222.70).
48 CFR 1222.608-3 Protests against eligibility.
The contracting officer shall transmit the information described in
FAR 22.608-3(b). The contracting officer shall furnish a copy of such
transmittals to the administration labor advisor, or designated
official.
48 CFR 1222.608-4 Award pending final determination.
Award may be made immediately, as provided in FAR 22.608-4(a), if the
contracting officer's certification is approved in writing by the head
of the contracting activity. The contract file documentation addressed
at FAR 22.608-4(b) is the approved certification required by FAR
22.608-4(a). A copy of the written notice shall be furnished to the
administration's labor advisor, or designated official.
48 CFR 1222.608-6 Postaward.
(a) See 1249.1 for procedures regarding contract termination.
(b) A copy of notification furnished the Department of Labor as
required by FAR 22.608-6(c) shall be furnished the administration's
labor advisor, or designated official.
48 CFR 1222.608-6 Subpart 1222.70 -- Service Contract Act of 1965
48 CFR 1222.7001 General.
Pending future coverage in the FAR, administrations shall continue to
follow policies and procedures in FPR Temporary Regulation 76, Revision
of Labor Standards for Federal Service Contracts, February 23, 1984, and
administration procedures instituted thereunder.
48 CFR 1222.7002 Contract clauses.
(a) Clause for contracts of $2,500 or less. The contracting officer
shall insert the clause at 1252.222-70, Service Contract Act of 1965 as
amended, Contracts of $2,500 or Less, in solicitations and contracts
when the contract amount is expected to be $2,500 or less and the
Service Contract Act of 1965 as amended, is applicable. With respect to
Blanket Purchase Agreements, the amount to be compared to the dollar
threshold is the total dollar amount of orders reasonably anticipated to
be placed in a 12-month period.
(b) Clauses for contracts over $2,500. The contracting officer shall
insert the full text of the following clauses in solicitations and
contracts when the contract is subject to the Service Contract Act of
1965, as amended:
(1) The clause at 1252.222-75, Service Contract Act of 1965, as
amended, when the contract is (i) for over $2,500 or (ii) for an
indefinite dollar amount and the contracting officer expects the
contract amount will exceed $2,500 during any 12-month period.
(2) The clause at 1252.222-77, Fair Labor Standards Act and Service
Contract Act-Price Adjustment (Multi-year and Option Contracts), when
the contract is expected to be a fixed-price service contract and is a
multi-year contract or is a fixed-price services contract with options
to renew.
(3) The clause at 1252.222-78, Fair Labor Standards Act and Service
Contract Act-Price Adjustment, when the contract is expected to be a
fixed-price service contract and is not a multi-year contract and does
not contain options to renew.
(4) The clause at 1252.222-79, Service Contract Act Requirements as
to Vacation Pay.
(52 FR 44542, Nov. 19, 1987, as amended at 53 FR 28400, July 28,
1988)
48 CFR 1222.7002 Subpart 1222.71 -- Administration Labor Advisor
48 CFR 1222.7101 Administration labor procedures.
Each administration shall establish procedures to assure compliance
with this part. Each administration may appoint a labor advisor or
designate an official responsible for coordinating labor policy and
procedures as they pertain to the acquisition process. The individual
so designated shall be located in its headquarters and the appointment
shall be made by memorandum, with a copy sent to each of the
administration's contracting offices.
48 CFR 1222.7101 Subpart 1222.72 -- Fair Labor Standards Act of 1938
48 CFR 1222.7201 General.
The Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201
through 219), establishes minimum wage and maximum hour standards
applicable to employees, unless otherwise exempted, engaged in
interstate or foreign commerce or in the production of goods for such
commerce. Thus, the statute may or may not cover employees on a
Government contract, depending upon the nature of the contract work.
The Department of Labor has responsibility for administering and
enforcing this statute. A Labor Department investigation in connection
therewith may be of vital concern to DOT because it may divulge
violations of the Davis-Bacon Act, Contract Work Hours and Safety
Standards Act, or Copeland (Anti-kickback) Act for which DOT has
enforcement responsibility. When access to a contractor's submitted
records is requested by the Department of Labor in connection with its
investigation under the Fair Labor Standards Act, the contracting
officer shall cooperate fully, and shall immediately request the Labor
Department representative to furnish promptly any information developed
indicating violation of the above statutes for which DOT has enforcement
responsibility.
48 CFR 1222.7201 Subpart 1222.73 -- Notification to 8(a) Subcontractors
48 CFR 1222.7301 Requirements.
Contracting officers shall assure that firms receiving 8(a)
subcontracts subject to the Davis-Bacon Act, Service Contract Act,
Contract Work Hours and Safety Standards Act, Copeland (Anti-Kickback)
Act and Walsh-Healy Act are made aware during contract negotiation of
the requirements of these Acts.
48 CFR 1222.7301 PART 1223 -- ENVIRONMENT, CONSERVATION, AND OCCUPATIONAL SAFETY
48 CFR 1222.7301 Subpart 1223.1 -- Pollution Control and Clean Air and
Water
Sec.
1223.106 Delaying award.
1223.107 Compliance responsibilities.
48 CFR 1222.7301 Subpart 1223.70 -- Safety Requirements for Selected DOT
Contracts
1223.7001 Contract clauses.
Authority: Sec. 205(c) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44544, Nov. 19, 1987, unless otherwise noted.
48 CFR 1222.7301 Subpart 1223.1 -- Pollution Control and Clean Air and Water
48 CFR 1223.106 Delaying award.
The contracting officer shall submit all notifications initiated
under FAR 23.106 to the Environmental Protection Agency through the
Senior Procurement Executive.
48 CFR 1223.107 Compliance responsibilities.
Notification required by FAR 23.107 shall be submitted in the same
manner as required by 1223.106.
48 CFR 1223.107 Subpart 1223.70 -- Safety Requirements for Selected DOT Contracts
48 CFR 1223.7001 Contract clauses.
(a) Where all or part of a contract will be performed on Government
owned or leased property, the contracting officer shall insert the
clause at 1252.223-71 ''Accident and Fire Reporting.''
(b) For all NHTSA solicitations and contracts under which human test
subjects will be utilized, the contracting officer shall insert the
clause at 1252.223-72 ''Protection of Human Subjects.'' Copies of the
NHTSA directives shall be made available to the successful contractor.
(52 FR 44544, Nov. 19, 1987, as amended at 53 FR 28400, July 28,
1988)
48 CFR 1223.7001 PART 1224 -- PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
48 CFR 1223.7001 Subpart 1224.1 -- Protection of Individual Privacy
Sec.
1224.102 General.
1224.102-70 Applicability.
48 CFR 1223.7001 Subpart 1224.2 -- Freedom of Information Act
1224.202 Policy.
Authority: Sec. 205(c), Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44544, Nov. 19, 1987, unless otherwise noted.
48 CFR 1223.7001 Subpart 1224.1 -- Protection of Individual Privacy
48 CFR 1224.102 General.
DOT rules and regulations implementing the Privacy Act are located at
49 CFR Part 10.
48 CFR 1224.102-70 Applicability.
(a) Illustrations of systems of records to which the Privacy Act
applies include the following:
(1) Records which are maintained for administrative functions of a
Federal agency, such as personnel and payroll records.
(2) Health records which are maintained by a contractor engaged to
provide health services to agency personnel.
(b) Illustrations of systems of records to which the Act does not
apply include the following:
(1) Records which are maintained by a contractor on individuals whom
the contractor employs in the process of providing goods and services to
the Federal Government.
(2) Under contracts with a State or private educational organization
to provide training, the records generated on contract students pursuant
to their attendance (admission forms, grade reports), provided that they
are similar to those maintained on other students are commingled with
records on other students.
(3) A system used by a contractor as a result of management
discretion, for example, systems of personnel records maintained by
contractors on their own behalf.
48 CFR 1224.102-70 Subpart 1224.2 -- Freedom of Information Act
48 CFR 1224.202 Policy.
DOT rules and regulations implementing the Freedom of Information Act
(FOIA) are located in 49 CFR Part 7.
48 CFR 1224.202 PART 1225 -- FOREIGN ACQUISITION
48 CFR 1224.202 Subpart 1225.1 -- Buy American Act -- Supplies
Sec.
1225.102 Policy.
48 CFR 1224.202 Subpart 1225.2 -- Buy American Act -- Construction
Materials
1225.202 Policy.
48 CFR 1224.202 Subpart 1225.3 -- Balance of Payments Program
1225.302 Policy.
1225.304 Excess and near-excess foreign currencies.
Authority: Sec. 205(c), Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44544, Nov. 19, 1987, unless otherwise noted.
48 CFR 1224.202 Subpart 1225.1 -- Buy American Act -- Supplies
48 CFR 1225.102 Policy.
The head of the contracting activity shall approve the determination
required by FAR 25.102(b) for contracts exceeding $1 million.
48 CFR 1225.102 Subpart 1225.2 -- Buy American Act -- Construction Materials
48 CFR 1225.202 Policy.
The head of the contracting activity shall approve the determination
required by FAR 25.202(b) for cost of construction materials exceeding
$100,000.
48 CFR 1225.202 Subpart 1225.3 -- Balance of Payments Program
48 CFR 1225.302 Policy.
The head of the contracting activity shall make the
determinations/provide the authorization required by FAR 25.302 (b)(2),
(b)(3) and (c).
48 CFR 1225.304 Excess and near-excess foreign currencies.
The head of the contracting activity shall make the determination
required by FAR 25.304(c).
48 CFR 1225.304 SUBCHAPTER E -- GENERAL CONTRACTING REQUIREMENTS
48 CFR 1225.304 PART 1227 -- PATENTS, DATA AND COPYRIGHTS
48 CFR 1225.304 Subpart 1227.2 -- Patents
Sec.
1227.201-1 General.
48 CFR 1225.304 Subpart 1227.3 -- Patent Rights Under Government
Contracts
1227.302 Policy.
1227.305 Administration of patent right clauses
1227.305-4 Conveyance of invention rights acquired by the Government.
48 CFR 1225.304 Subpart 1227.4 -- Rights in Data and Copyrights
1227.401-73 Solicitation provisions and contract clauses.
Authority: Sec. 205(c), Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44545, Nov. 19, 1987, unless otherwise noted.
48 CFR 1225.304 Subpart 1227.2 -- Patents
48 CFR 1227.201-1 General.
For the Department of Transportation, the office having cognizance of
patent matters shall be the DOT Patent Counsel, Office of General
Counsel.
48 CFR 1227.201-1 Subpart 1227.3 -- Patent Rights Under Government Contracts
48 CFR 1227.302 Policy.
The DOT Senior Procurement Executive shall be the official that
approves all determinations to require the contractor, or assignee, or
exclusive licensee to grant such licenses as specified at FAR 27.302(f).
The head of the contracting activity shall have the responsibility and
authority for making findings and determination with respect to the
granting of such a license and submitting such findings and
determination to the Senior Procurement Executive for approval. When
necessary, the contracting officer or the HCA should seek advice from
the OST Patent Counsel.
1227.305 Administration of patent right clauses.
48 CFR 1227.305-4 Conveyance of invention rights acquired by the
Government.
(a) The contracting officer shall ensure that solicitations and
contracts which include either of the clauses at FAR 52.227-11 and
52.227-13, include a mechanism by which the contractor is required to
report inventions made in the course of contract performance.
Contracting officers may fulfill this requirement by requiring the
contractor to submit a DD Form 882, Report of Inventions and
Subcontracts, at contract completion, and when required to disclose
inventions in accordance with the FAR clauses cited above. Contracting
officers shall ensure that the contractor submits all of the disclosure
information required by the specific FAR clause included in the
contract.
(b) When a contractor discloses an invention under a contract
including one of the clauses cited above, the contracting officer shall
take the following action(s), as appropriate:
(1) For contracts which include the FAR clause 52.227-11:
(i) Ensure that the Government receives a license pursuant to
paragraph (b) of the clause.
(ii) Ensure that title to any subject invention is transferred to the
Government when required pursuant to paragraph (d) of the clause.
(2) For contracts which include the FAR clause 52.227-13:
(i) Ensure that the contractor assigns the entire right, title, and
interest to the subject invention to the Government pursuant to
paragraph (b) of the clause.
(ii) Ensure that the Government retains the minimum rights specified
in paragraph (c) of the clause when the contractor retains principal or
exclusive rights.
48 CFR 1227.305-4 Subpart 1227.4 -- Rights in Data and Copyrights
48 CFR 1227.409 Solicitation provisions and contract clauses.
(a) The contracting officer may prescribe, as appropriate, clauses
consistent with the policy of FAR 27.402 in contracts to be performed
outside the United States, its possessions, and Puerto Rico.
(b) The contracting officer may prescribe, as appropriate, clauses
consistent with the policy in FAR 27.402 in contracts for
architect-engineer services and construction work.
(c) The contracting officer shall prescribe clauses consistent with
the requirements of Pub. L. 97-219 (the Small Business Administration
Development Act of 1982) and the Small Business Innovation Policy
Directive No. 65-01 in Small Business Innovative Research (SBIR)
contracts.
(d) The contracting officer may prescribe, as appropriate, clauses
consistent with the policy of FAR 27.402 in contracts for the operation
of Government-owned research, development, or production facilities.
(52 FR 44545, Nov. 19, 1987, as amended at 53 FR 28400, July 28,
1988)
48 CFR 1227.409 PART 1228 -- BONDS AND INSURANCE
48 CFR 1227.409 Subpart 1228.1 -- Bonds
Sec.
1228.106 Administration.
1228.106-6 Furnishing of information.
1228.106-7 Withholding contract payments.
1228.106-70 Execution and administration of bonds.
48 CFR 1227.409 Subpart 1228.3 -- Insurance
1228.306 Insurance under fixed-price contracts.
1228.306-70 Contracts for lease of aircraft.
1228.306-7001 Clauses.
Authority: Sec. 205(c) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44545, Nov. 19, 1987, unless otherwise noted.
48 CFR 1227.409 Subpart 1228.1 -- Bonds
1228.106 Administration.
48 CFR 1228.106-6 Furnishing of information.
(a) The contracting officer shall upon request furnish the name and
address of the prime contractor's surety to employees, suppliers, and
subcontractors having a contractual or employment relationship with the
prime contractor or a first-tier subcontractor. When furnishing such
information, the inquirer may also be informed that:
(1) An employee, supplier, or subcontractor having a contractual or
employment relationship with a prime contractor or first-tier
subcontractor has the right to sue the prime contractor's surety under
the Miller Act for amounts owed for work performed or materials
delivered; and
(2) In order to avail themself of legal remedies provided by the
Miller Act, an employee, supplier, or subcontractor having a contractual
or employment relationship with a first-tier subcontractor must act
within the following time frames:
(i) Inform the prime contractor within 90 days after the day on which
the last of the work was performed or the day on which the last of the
material was delivered, that such work or material has not been fully
paid for; and
(ii) File against the surety within one year after the day on which
the last of the work was performed or the day on which the last of the
material was delivered, any required court action for collection of
amounts due. ''Employees'' as used in this paragraph means both
supervisory and nonsupervisory employees who have furnished or have been
requested to furnish labor in prosecution of the work required by the
contract in question. See 1228.106-6(b) of this subpart, for the
contracting officer's responsibility with respect to laborers,
mechanics, appentices, trainees, watchmen and guards.
(b) On construction contracts exceeding $2,000, if the contracting
officer is informed, either through routine compliance checking, a
complaint, or a request for information, that a laborer, mechanic,
apprentice, trainee, watchman or guard employed by the contractor or
subcontractor at any tier may have been paid wages less than those
required by the applicable labor standards provisions of the contract,
the contracting officer shall promptly initiate an investigation in
accordance with FAR Subpart 22.4, irrespective of the employee's rights
under the Miller Act. When an employee's request for information is
involved, the contracting officer shall inform the inquirer that such
investigation will be made. Such investigation is required pursuant to
the provisions of the Davis-Bacon Act, Contract Work Hours and Safety
Standards Act, and Copeland (Anti-kickback) Act for assuring proper
payment to such employees. Claims of such employees, along with claims
of the United States referred to in 1228.106-7 take precedence over
claims of sureties.
(c) When furnishing a copy of a payment bond and contract in
accordance with FAR 28.106-6(c), the requirement for a copy of the
contract may be satisfied by furnishing a machine copy of the contract's
first pages, which show the contract number and date, the contractor's
name and signature, the contracting officer's signature, and the
description of the contract work. The officer furnishing the copies
shall place the statement ''Certified to be a true and correct copy''
followed by his or her signature and title and name of the operating
administration. The fee for furnishing the requested certified copies
shall be determined in accordance with the Departmental Freedom of
Information Act regulation (49 CFR Part 7). Payment for requested
records shall be made by check or money order drawn to the order of the
operating administration providing the certified copies, or by cash.
48 CFR 1228.106-7 Withholding contract payments.
A surety which, pursuant to a Miller Act payment bond, has satisfied
debts owed by the contractor to an employee of the contractor, a
first-tier subcontractor, or a material man supplying the contractor,
obtains a right of subrogation to contract funds due the contractor and
held by the Government. However, the surety's subrogation rights are
subject to any claims of the United States based on the contractor's
debts to it and the Government's right to make payment to the contractor
from withheld funds if necessary to achieve timely completion of the
contracts.
48 CFR 1228.106-70 Execution and administration of bonds.
(a) The surety shall be notified, as soon as feasible, of the
contractor's failure to perform in accordance with the terms of the
contract.
(b) When a partnership is a principal on a bond, the names of all the
members of the firm shall be listed in the bond following the name of
the firm, and the phrase ''a partnership composed of.'' If a principal
is a corporation, the state of incorporation must appear.
(c) Performance or payment bond other than an annual bond shall not
antedate the contract to which it pertains.
(d) Bonds shall be filed with the original contract to which they
apply, or all bonds shall be separately maintained and reviewed
quarterly for validity. If separately maintained, each contract file
shall cross reference the applicable bonds.
48 CFR 1228.106-70 Subpart 1228.3 -- Insurance
1228.306 Insurance under fixed-price contracts.
1228.306-70 Contracts for lease of aircraft.
48 CFR 1228.306-7001 Clauses.
(a) The clauses at 1252.228-71 through 1252.228-73 shall, unless
otherwise indicated by the specific instructions for their use, be
inserted in any contract for the lease of aircraft (including aircraft
used in out-service flight training).
(b) Insert the clause at 1252.228-71 except in the following
circumstances:
(1) When the hourly rental rate does not exceed $250.00 and the total
rental cost for any single transaction is not in excess of $2,500 or
(2) Where the cost of hull insurance does not exceed 10% of the
contract rate, or
(3) When the lessor's insurer does not grant a credit for uninsured
hours, thereby preventing the lessor from granting the same to the
Government.
(c) When fair market value of the aircraft can be determined, insert
the clause at 1252.228-72.
(d) Section 504 of the Federal Aviation Act of 1958, as amended,
provides that no lessor of an aircraft under a bona fide lease of thirty
days or more, shall be liable by reason of his interest as lessor or
title-holder of the aircraft for any injury to or death of persons, or
damage to or loss of property, unless such aircraft is in the actual
possession or control of such person at the time of such injury, death,
damage or loss. On short-term or intermittent-use leases, however, the
owner may be liable for damage caused by operation of the aircraft. It
is usual for the aircraft owner to retain insurance covering this
liability during the term of such lease. Such insurance can, often for
little or no increase in premium, be made to cover the Government's
exposure to liability as well. In order to take advantage of this
coverage, the Risks and Indemnities clause prescribed in paragraph
(d)(1) of this section shall be used.
(1) Insert the clause at 1252.228-73 in any contract for out-service
flight training or for the lease of aircraft where the Government will
have exclusive use of the aircraft for a period of less than thirty
days.
(2) Any contract for out-service flight training shall include a
clause in the contract Schedule stating substantially that the
contractor's personnel shall at all times during the course of the
training be in command of the aircraft, and that at no time shall other
personnel be permitted to take command of the aircraft.
(52 FR 44545, Nov. 19, 1987, as amended at 53 FR 28400, July 28,
1988)
48 CFR 1228.306-7001 PART 1229 -- TAXES
48 CFR 1228.306-7001 Subpart 1229.1 -- General
Sec.
1229.101 Resolving tax problems.
48 CFR 1228.306-7001 Subpart 1229.70 -- Filing of IRS Information
Returns
1229.7001 General.
1229.7002 Responsibilities.
Authority: Sec. 205(C) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44547, Nov. 19, 1987, unless otherwise noted.
48 CFR 1228.306-7001 Subpart 1229.1 -- General
48 CFR 1229.101 Resolving tax problems.
(a) The Office of General Counsel will represent the Department in
all negotiations under FAR Part 29.
(b) Communications with the Department of Justice for representation
or intervention in proceedings concerning taxes shall be made only by
the General Counsel.
(c) Matters involving foreign taxes requiring the assistance of other
executive departments shall be forwarded to the General Counsel for
appropriate action.
(d) Tax problems which cannot be solved readily by reference to FAR
Part 29 shall be forwarded to the General Counsel through the
administration legal counsel. The forwarding of tax problems to the
General Counsel is particularly important where:
(1) The amount of tax actually or potentially involved is
substantial;
(2) The legal incidence of a tax appears to be upon the United States
or its property, a specific exemption pertinent to the transaction
appears to exist, or a State or local tax appears to have a direct
effect upon a transaction in interstate commerce;
(3) Judicial or administrative action against a contractor is
threatened;
(4) The imposition or potential imposition of a tax is the result of
an amendment of a tax law or a change of position by the tax
authorities; or
(5) The possibility exists of obtaining refunds of taxes previously
paid.
(e) Tax problems forwarded to the General Counsel shall be
accompanied by the following material, which shall be furnished by the
initiating office or by intervening offices:
(1) A comprehensive statement of pertinent facts, including documents
and correspondence.
(2) A copy of the contract.
(3) A thorough review of the legal issues involved and recommended
action to be taken.
(4) If appropriate, a statement of the problem's effect(s) on
procurement policies and procedures with recommendations.
(f) Information copies of tax-related correspondence shall be sent to
the procurement executive.
48 CFR 1229.101 Subpart 1229.70 -- Filing of IRS Information Returns
48 CFR 1229.7001 General.
The Department is required to file Information Tax returns for all
payments made to individuals and partnerships totaling $600 or more in a
calendar year. However, reporting generally is not required by Federal
agencies for payments made to corporations except in the case of medical
payments. Returns must be filed for payments totaling $600 or more for:
(a) Salaries, wages, commissions, fees and other forms of
compensation for services rendered by individuals not Department of
Transportation employees.
(b) Rents (paid to individuals vice real estate agents).
(c) Interest penalties incurred under the Prompt Payments Act and the
Contract Disputes Act.
(d) Any amount in excess of $600 that was owed to DOT and that has
been declared uncollectable as a result of a defaulted obligation, not
in dispute, and either:
(1) A Federal statute expiration for collection of the debt has
occurred, or
(2) A formal compromise agreement has been entered into.
(e) If an amount less than the amount owed is accepted as payment in
full, the difference between the amount of the debt and the settlement
amount must be reported.
(f) Returns must also be prepared for payments and any related
interest penalties made to corporations engaged in providing medical and
health care services or in billings and collections for such services.
48 CFR 1229.7002 Responsibilities.
(a) Procurement Office. Prior to award of small purchases,
contracts, and lease agreements, the procurement office is responsible
for: (1) Identifying the recipients subject to reporting, (2) obtaining
the appropriate informational data i.e. the taxpayer identification
number or social security number, and (3) providing this data to the
accounting office.
(b) Accounting Office. The accounting office in each operating
administration that processes the payments is responsible for preparing
the related IRS information returns.
(53 FR 28400, July 28, 1988)
48 CFR 1229.7002 PART 1230 -- COST ACCOUNTING STANDARDS
Authority: Sec. 205(c) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
48 CFR 1229.7002 Subpart 1230.3 -- CAS Contract Requirements
48 CFR 1230.304 Waiver.
The head of the contracting activity is authorized to waive CAS
requirements for nondefense contracts.
(52 FR 44547, Nov. 19, 1987)
48 CFR 1230.304 PART 1231 -- CONTRACT COST PRINCIPLES AND PROCEDURES
Authority: Sec. 205(c) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
48 CFR 1230.304 Subpart 1231.1 -- Applicability
48 CFR 1231.101 Objectives.
Requests for individual deviations to the cost principles shall be
submitted to the agency head. Requests for administration supplements
and class deviations shall be submitted through the Senior Procurement
Executive who will coordinate the request with the Civilian Agency
Acquisition Council.
(52 FR 44547, Nov. 19, 1987)
48 CFR 1231.101 PART 1232 -- CONTRACT FINANCING
48 CFR 1231.101 Subpart 1232.1 -- General
Sec.
1232.102 Description of contract financing methods.
48 CFR 1231.101 Subpart 1232.4 -- Advance Payments
1232.402 General.
48 CFR 1231.101 Subpart 1232.5 -- Progress Payments Based on Costs
1232.501 General.
1232.501-2 Unusual progress payments.
1232.502 Preaward matters.
1232.502-2 Contract finance office clearance.
1232.504 Subcontracts.
48 CFR 1231.101 Subpart 1232.7 -- Contract Funding
1232.702 Policy.
1232.703 Contract funding requirements.
1232.703-1 General.
Authority: Sec. 205(C) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44548, Nov. 19, 1987, unless otherwise noted.
48 CFR 1231.101 Subpart 1232.1 -- General
48 CFR 1232.102 Description of contract financing methods.
Progress payments based on a percentage or stage of completion are
authorized for use as a payment method under DOT contracts or
subcontracts for construction, alteration or repair, and shipbuilding
and conversion. For all other contracts, progress payment provisions
shall be based on costs, as provided in FAR Subpart 32.5, and Subpart
1232.5, of this chapter, except that progress payments based on a
percentage or stage of completion may be authorized by the head of the
contracting activity when a determination is made that progress payments
based on costs cannot be practically employed and that it is feasible to
administer progress payments based on a percentage or stage of
completion.
48 CFR 1232.102 Subpart 1232.4 -- Advance Payments
48 CFR 1232.402 General.
(a) The head of the contracting activity shall have the
responsibility and authority for making findings and determinations
concerning advance payments, except advance payments in excess of
$50,000 pursuant to Pub. L. 85-804, as amended, must be approved by the
Secretary of Transportation. This authority may not be redelegated.
(b) Before requesting authorization for any advance payment
arrangements, the proposed advance payments shall be coordinated with
the finance office.
48 CFR 1232.402 Subpart 1232.5 -- Progress Payments Based on Costs
1232.501 General.
48 CFR 1232.501-2 Unusual progress payments.
Requests for unusual progress payments will not be considered as a
handicap or adverse factor in the award of a contract, provided the bid
or proposal is not conditioned on approval of such request.
1232.502 Preaward matters.
48 CFR 1232.502-2 Contract finance office clearance.
The approving authority for actions specified in FAR 32.502-2 is the
head of the contracting activity.
48 CFR 1232.504 Subcontracts.
The head of the contracting activity is the approving official for
unusual progress payments to subcontractors.
48 CFR 1232.504 Subpart 1232.7 -- Contract Funding
48 CFR 1232.702 Policy.
In addition to the requirements of (a) in the second sentence of FAR
32.702, and for fixed price incentive or redeterminable contracts, the
contracting officer shall prior to award ensure that sufficient funds
are available to cover the ceiling price thereof.
1232.703 Contract funding requirements.
48 CFR 1232.703-1 General.
Incrementally funded cost reimbursement contracts shall state:
(a) The limit of the Government's liability (i.e., amount of funds
available);
(b) The portion of the contract scope (i.e., specific property or
services, or period of time) for which funds are available;
(c) The proportionate cost and fee for the property, services or
period identified per paragraph (b) of this section; and
(d) For contracts containing separately priced portions (e.g. Task
Order contracts), the individual cost and fee for each incrementally
funded portion.
48 CFR 1232.703-1 PART 1233 -- PROTESTS, DISPUTES, AND APPEALS
48 CFR 1232.703-1 Subpart 1233.1 -- Protests
Sec.
1233.103 Protests to the agency.
1233.104 Protests to GAO.
1233.105 Protests to GSBCA.
48 CFR 1232.703-1 Subpart 1233.2 -- Disputes and Appeals
1233.211 Contracting officer's decision.
1233.212 Contracting officer's duties upon appeal.
1233.213 Obligation to continue performance.
Authority: Sec. 205(c) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44548, Nov. 19, 1987, unless otherwise noted.
48 CFR 1232.703-1 Subpart 1233.1 -- Protests
48 CFR 1233.103 Protests to the agency.
The Assistant Secretary for Administration is responsible for the
determination authorizing award of a contract prior to resolution of a
protest. Requests should be submitted for approval through the Senior
Procurement Executive.
48 CFR 1233.104 Protests to GAO.
(a) General. Prior to submitting a protest response to GAO, the
completed response shall be submitted to the Senior Procurement
Executive for review and coordination at least two days prior to date
due to GAO. (In those instances when the contractor elects to use
express procedures, the completed response shall be submitted to the
Senior Procurement Executive for review and coordination at least one
day prior to date due to GAO.) The head of the contracting activity has
the responsibility to provide GAO with the information required by FAR
33.104(a)(6).
(b) Protests before award. The Assistant Secretary for
Administration is responsible for the determination authorizing award of
a contract prior to resolution of a protest. Requests should be
submitted for approval through the Senior Procurement Executive.
(c) Protests after award. All notices to GAO of the intent to
continue contract performance in the face of such a protest shall be
submitted to the Senior Procurement Executive for review and
coordination. All such notices shall be submitted to the Senior
Procurement Executive for review and coordination within ten days of
receipt of the notification of receipt of protest from GAO, unless GAO
specifies an earlier due date for such notification.
(d) Notice to GAO. All notices to GAO submitted in accordance with
FAR 33.104(f) shall be submitted through the Senior Procurement
Executive for review and approval at least two days prior to the date
due to GAO.
(52 FR 44548, Nov. 19, 1987, as amended at 53 FR 28400, July 28,
1988)
48 CFR 1233.105 Protests to GSBCA.
Prior to submitting an answer to GSBCA, in accordance with FAR
33.105(c), the completed answer shall be submitted to the Senior
Procurement Executive for review and coordination.
48 CFR 1233.105 Subpart 1233.2 -- Disputes and Appeals
48 CFR 1233.211 Contracting officer's decision.
For Department of Transportation contracts, the Board of Contract
Appeals referenced at FAR 33.211 is Department of Transportation Board
of Contract Appeals (S-20), 400 7th Street, SW, Washington, DC 20590.
48 CFR 1233.212 Contracting officer's duties upon appeal.
Upon receipt of notice of appeal by a contractor, the contracting
officer will notify administration legal counsel who will appoint an
attorney to represent the Government before the DOT Board of Contract
Appeals.
48 CFR 1233.213 Obligation to continue performance.
The contracting officer shall use the clause at FAR 52.233-1,
Disputes, with its Alternate I where continued performance is vital to
national security, the public health and welfare, critical/major agency
programs, or other essential supplies or services whose timely
reprocurement from other sources would be impracticable.
48 CFR 1233.213 SUBCHAPTER F -- SPECIAL CATEGORIES OF CONTRACTING
48 CFR 1233.213 PART 1234 -- MAJOR SYSTEM ACQUISITION
Authority: Sec. 205(c) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
48 CFR 1234.002 Policy.
DOT's implementation of OMB Circular No. A-109 and FAR Part 34 is
contained in DOT Orders 4200.9A Acquisition of Major Systems, and
4200.14B Major Systems Acquisition Review and Approval.
(52 FR 44549, Nov. 19, 1987)
48 CFR 1234.002 PART 1235 -- RESEARCH AND DEVELOPMENT CONTRACTING
Sec.
1235.003 Policy.
1235.010 Scientific and technical reports.
1235.070 Contract clause.
Authority: Sec. 205(c) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44549, Nov. 19, 1987, unless otherwise noted.
48 CFR 1235.003 Policy.
Recoupment. It is DOT policy in negotiating contracts under which the
Government pays a part or all of the costs of research or development to
recover a fair share of its investment when the product(s) thus
developed or their related technology is sold or licensed to a foreign
government, international organization, foreign commercial firm or
domestic organization (all of which are collectively termed
''customers''). (See 1235.070 of this part, for instructions on use of
the recoupment clause).
48 CFR 1235.010 Scientific and technical reports.
When the statement of work calls for a scientific and technical
report which presents interim and final results of R&D work, the
contracting officer shall insure that DOT document DOT-TST-75-97
(Appendix 1 to DOT Order 1700.18 Acquisition, Publication and
Dissemination of DOT Scientific and Technical Reports) is included in
the contract.
48 CFR 1235.070 Contract clause.
Contracting officers shall insert the clause at 1252.235-71
''Recoupment of Development Costs'' in contracts which:
(a) Totally or partly require design, research, development, test or
experimental (D, R, D, T or E) work;
(b) Call for a product (e.g., equipment, hardware, software or a
combination thereof) to be delivered as an end item; and
(c) Involve D, R, D, T or E valued at $1,000,000 or more.
48 CFR 1235.070 PART 1236 -- CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
48 CFR 1235.070 Subpart 1236.2 -- Special Aspects of Contracting for
Construction
Sec.
1236.203 Government estimate of construction costs.
1236.206 Liquidated damages.
1236.209 Construction contracts with architect-engineer firms.
48 CFR 1235.070 Subpart 1236.3 -- Special Aspects of Sealed Bidding in
Construction Contracting
1236.305 Preconstruction conference.
48 CFR 1235.070 Subpart 1236.5 -- Contract Clauses
1236.570 Special precautions for work at operating airports.
48 CFR 1235.070 Subpart 1236.6 -- Architect-Engineer Services
1236.602 Selection of firms for architect-engineer contracts.
1236.602-1 Selection criteria.
1236.602-2 Evaluation boards.
1236.602-3 Evaluation board functions.
1236.602-4 Selection authority.
1236.602-5 Short selection processes for contracts not to exceed
$10,000.
1236.603 Collecting data on and appraising firms' qualifications.
1236.606 Negotiations.
1236.606-70 General.
Authority: Sec. 205(c) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44549, Nov. 19, 1987, unless otherwise noted.
48 CFR 1235.070 Subpart 1236.2 -- Special Aspects of Contracting for Construction
48 CFR 1236.203 Government estimate of construction costs.
(a) The Government estimate shall be designated ''For Official Use
Only'' unless the nature of the information therein requires a security
classification, in which event it shall be handled in accordance with
applicable security regulations. The ''For Official Use Only''
designation shall be removed only when the estimate is made public in
accordance with instructions below.
(b) If the acquisition is by sealed bidding, a sealed copy of the
detailed Government estimate shall be filed with the bids until bid
opening. After the bids are read and recorded, the ''For Official Use
Only'' designation shall be removed and the estimate shall be read and
recorded in the same detail as the bids.
(c) If the acquisition is by negotiation, the following procedures
apply:
(1) The overall amount of the Government's estimate shall not be
disclosed prior to award;
(2) At the time of award the ''For Official Use Only'' designation on
the Government's estimate shall be removed; and
(3) After award, the Government's estimate may be revealed, upon
request.
48 CFR 1236.206 Liquidated damages.
Liquidated damages provisions are generally appropriate in
construction contracts in accordance with the provisions of FAR Subpart
12.2. However, inclusion of liquidated damages provisions may be
inappropriate in situations such as a construction contract consisting
of repairs, alterations, or improvements where any delay in the
completion would still permit the user to continue its normal function
in an uninterrupted manner, without resulting in added expense to the
Government.
48 CFR 1236.209 Construction contracts with architect-engineer firms.
(a) As provided in FAR 36.209, no contract for construction shall be
awarded (as the result of either a solicited or unsolicited proposal) to
the architect-engineer (A-E) firm responsible for the design of the
facility to be constructed, or to any subsidiary or affiliate of that
firm, without the approval of the agency head. This approval authority
may not be redelegated.
(b) Unless a construction award to an A-E design firm is approved per
paragraph (a) of this section, an A-E firm selected for negotiation of
an architect-engineer services contract which, together with its
subsidiaries or affiliates, possesses construction capabilities, shall
be advised of the policy set forth in paragraph (a) of this section
prior to the initiation of negotiations. The firm shall have the option
of either:
(1) Declining to enter into contract negotiations in order to be
eligible to compete for the related construction contract; or
(2) Entering into contract negotiations with the clear understanding
that, if such negotiations are successful, the firm (including its
subsidiaries or affiliates) will be ineligible to compete for the
related construction contract. This understanding shall be certified by
the architect-engineer firm upon the completion of negotiation, and the
certification shall be entered into the official contract file.
(c) Architect-Engineer firms awarded a construction contract under
1236.209(a) shall not be engaged to supervise and inspect, on behalf of
the Government, the construction of the facility under the contract.
48 CFR 1236.209 Subpart 1236.3 -- Special Aspects of Sealed Bidding in Construction Contracting
48 CFR 1236.305 Preconstruction conference.
(a) When the contracting officer considers such action warranted,
he/she shall arrange a preconstruction conference with the contractor
and such subcontractors as the contractor may designate to assure that
there is a clear understanding of the contract requirements (including
labor standards provisions) and the rights and obligations of the
parties.
(b) DOT Form F 4220.3 titled ''Preconstruction Conference Agenda and
Checklist'', or a similar checklist, shall be used as the agenda of, or
checklist for, the preconstruction conference.
48 CFR 1236.305 Subpart 1236.5 -- Contract Clauses
48 CFR 1236.570 Special precautions for work at operating airports.
Where any acquisition will require work at an operating airport,
insert the clause at 1252.236-71 in the solicitation and contract.
48 CFR 1236.570 Subpart 1236.6 -- Architect-Engineer Services
1236.602 Selection of firms for architect-engineer contracts.
48 CFR 1236.602-1 Selection criteria.
(a) Appropriate criteria in addition to those under FAR 36.602-1(a)
may include, but are not limited to, the criteria listed below. The
extent to which these criteria are used will depend on the size and the
complexity of the project. For instance, for small and straightforward
projects, particularly those under $10,000, the data provided by the
Standard Forms 254 and 255 may provide an adequate measure of the firm's
experience and qualifications required for the project. However, on
larger and more complex projects, the evaluation criteria should be
extended to consider such factors as the firm's suggested design
approach, plus methods, design ability, such as:
(1) Specialized Experience of the Firm -- Relevant recent experience
of the firm (including joint venture or association) in projects similar
to the one being solicited.
(2) Capability and Capacity of Firm to Accomplish the Work.
(i) Relevant recent experience and technical knowledge of key project
personnel, and key outside consultants.
(ii) Total number of personnel the A-E firm employs in the technical
disciplines required for the proposed work.
(iii) Firm's current workload: Total number of ongoing projects,
their construction value or A-E fee, and percentage of completion.
(3) Design Ability and Understanding of the Requirements.
(i) Technical approach (planning and design process, overall planning
and design philosophy), possible concepts (narrative), special design
opportunities, innovative design possibilities (including
environmental), and provisions for the handicapped.
(ii) Understanding of, and Experience in, Energy Conservation Design.
(A) Approach to maximizing energy conservation.
(B) Project building and equipment systems that would significantly
impact energy consumption.
(C) Criteria and engineering considerations to be used in building
and equipment design.
(D) Examples of previously used design techniques and measure of
results (in Btus consumed per square foot or energy costs).
(iii) Proposed project schedule and man-loading plan.
(iv) Quality of examples of previous work.
(v) Design Recognition: Major awards and other major recognition the
firm or members of the firm have received for design excellence.
(4) Organization and Management:
(i) Project team organization and key personnel roles and
responsibilities.
(ii) Project management procedures such as coordination of design
effort among technical disciplines.
(iii) Methods used to control project schedule and construction cost
estimates.
(iv) Quality control procedures.
(v) A-E client relationship.
(5) Past Record of Performance:
(i) DOT and other Government contracts.
(ii) Contracts with private industry.
(iii) Quality of work.
(iv) Ability to meet contractual performance/delivery schedules.
(v) Accuracy of construction cost estimates (compared to construction
bids received and value of awarded construction contract).
(vi) Number, dollar amount and reason for construction change orders.
(vii) A-E/client relationship. (For Government contracts, the above
information is available from SF 1421 -- Performance Evaluation (A-E)).
(b) If design competition is to be used (see FAR 36.602-1(b)),
written approval by the agency head shall be obtained prior to
soliciting proposals.
(c)(1) The following evaluation criterion reflects Department policy
and shall be used in the A-E evaluation process for A-E acquisitions
above $10,000. It shall be used separately from the other criteria in
terms of bonus or penalty points to the basic numerical evaluation
rating.
(2) Minority/Women Employment -- Percentage of minority employees in
all job classifications and pay scales, noting the percentage of
minorities in the immediate locality and general surrounding area. In
addition, the number of women in all job classifications and pay scales
shall also be considered.
48 CFR 1236.602-2 Evaluation boards.
Heads of contracting activities shall establish an ad-hoc
architect-engineer evaluation board for each acquisition of
architect-engineer (A-E) services. This authority may be redelegated
not lower than one level above the contracting officer. For
acquisitions where the estimated A-E fee is $200,000 or more, the HCA
shall notify the Director of Administrative Services and Property
Management, M-40, prior to establishing the A-E evaluation board. For
A-E acquisitions above $10,000, the following requirements apply in
addition to those set forth in FAR 36.602-2:
(a) The A-E evaluation board shall be composed of the following
members:
(1) One member with experience in acquisition of A-E services. This
member will normally be the contracting officer or the contract
negotiator.
(2) One or more members with technical experience in the fields of
architecture, engineering or construction. These members will normally
be from the organization responsible for establishing the A-E work
requirements.
(3) One member with technical knowledge of the functional (user)
requirements of the project.
(4) One member from OST if appointed by the Director of
Administrative Services and Property Management, M-40, where the A-E fee
is $200,000 or more.
(5) Other special members are as deemed necessary.
(b) A-E board members may be appointed from among highly qualified
professional employees of other Government agencies or the private
sector who are engaged in the practice of architecture, engineering,
construction or related professions. When a proposed architect-engineer
evaluation board includes a member from the private sector, the Director
of Administrative Services and Property Management, M-40, shall be
notified before the board is established.
(c) Administrations that do not have:
(1) Personnel experienced in A-E selection procedures; or
(2) Personnel with the necessary technical disciplines to evaluate
A-E firms for a particular project, may request the assistance of the
Director of Administrative Services and Property Management, M-40, in
establishing the A-E evaluation board.
48 CFR 1236.602-3 Evaluation board functions.
For A-E acquisitions above $10,000, the A-E evaluation board shall
perform the following functions in addition to, or in combination with,
those of FAR 36.602-3, and in the sequence indicated:
(a) Analyze the nature and scope of the project work requirements.
(b) Develop the evaluation criteria and rating systems to be used in
screening firms for the preselection list and in the final selection.
The screening criteria should be based only on information provided by
the Standard Forms 254 and 255.
(c) Prepare the public announcement for the project and provide it to
the contracting office for publication.
(d) Screen the Standard Forms 254 and 255 and any other qualification
data received in response to the public announcement of the project and
prepare a preselection list of the best qualified firms for further
consideration. The preselection list must consist of at least three
firms.
(e) When appropriate, obtain in writing more specific and detailed
qualification, experience and past performance data (see 1236.602-1(a))
not provided by the Standard Forms 254 and 255 which are needed to
evaluate the firms using the criteria established for final selection.
The firms should also be provided with a description of the nature and
the scope of work to be accomplished to assist the firm in its response.
The A-E firms shall be advised not to submit price proposals, design
sketches, drawing or design data at the time the qualification and past
performance information is due.
(f) Conduct interviews with the firms on the preselection list. As
part of the interview, the architect-engineer firms shall be given an
opportunity to make an oral presentation of their qualifications and
experience, proposed project approach and any other relevant data. The
project manager and other key project personnel and consultants proposed
by a firm should participate in the interview.
(g) Whenever it is practical and advantageous, the A-E evaluation
board should visit the offices of the A-E firms on the preselection list
to inspect their facilities and work environments, to meet members of
the proposed project team, and to see both work in progress and
additional examples of completed projects.
(h) Review of Standard Forms 254 and 255 and other experience and
qualification data for each firm on the preselection list, and perform a
systematic numerical evaluation rating of the firms.
(i) Develop a rank order listing of at least three firms considered
most highly qualified to perform the required work, based on the
numerical evaluation ratings of the firms on the preselection list.
(j) Prepare a report to the HCA, or the official holding authority to
establish A-E boards, which shall include in sufficient detail:
(1) The extent of the board's review and evaluation;
(2) The list described in paragraph (i) of this section;
(3) Recommendations; and
(4) Considerations on which the recommendations are based.
48 CFR 1236.602-4 Selection authority.
(a) The HCA or the official holding authority to establish A-E boards
shall review the recommendations of the A-E evaluation board. The
recommendations of the A-E evaluation board will normally be approved,
unless the report does not adequately support the recommendations. If
the recommendations are not approved, the A-E evaluation board shall be
required to reconvene until an acceptable set of recommendations is
agreed upon.
(b) The approved report shall serve as authorization for the
contracting officer to commence negotiations with the A-E firm ranked
number one by the A-E evaluation board.
48 CFR 1236.602-5 Short selection processes for contracts not to exceed
$10,000.
Administrations are authorized to use either of the short selection
processes of FAR 36.602-5.
48 CFR 1236.603 Collecting data on and appraising firms' qualifications.
Because it is the Department's policy to establish ad hoc evaluation
boards instead of permanent boards to select architect-engineers, each
administration shall establish, or designate, an office or offices to
meet the requirements of FAR 36.603(a). Administrations may choose not
to maintain A-E qualification data files and arrange to use existing
data files of other DOT organizations including the files available in
the Office of Acquisition and Grant Management, OST (M-60). If any
organization chooses this option, it should foward all A-E qualification
data it receives from interested firms to the organization maintaining
the data file.
(52 FR 44549, Nov. 19, 1987, as amended at 53 FR 28400, July 28,
1988)
1236.606 Negotiations.
48 CFR 1236.606-70 General.
The limitation on architect-engineer fees of 6% of the estimated
construction cost applies to all services that are an integral part of
the production and delivery plans, designs, drawings and specifications
of a construction project. (See FAR 15.903(d).) The limitation,
however, does not apply to the cost of investigative and other services
including but not limited to the following:
(a) Development of program requirements (scope of work).
(b) Determination of project feasibility.
(c) Preparation of drawings of an existing facility, where current
drawings are not available.
(d) Subsurface investigations (soil borings).
(e) Structural, electrical and mechanical investigations of an
existing building, where current information is not available.
(f) Surveys: topographic, boundary, utility.
(g) Preparation of models, color renderings, photographs or other
presentation materials.
(h) Travel and per diem for special presentations.
(i) Supervision and inspection of construction.
(j) Preparation of operating and maintenance manuals.
(k) Master planning.
48 CFR 1236.606-70 PART 1237 -- SERVICE CONTRACTING
48 CFR 1236.606-70 Subpart 1237.1 -- Service Contracts -- General
Sec.
1237.104 Personal services contracts.
1237.104-70 Taxes.
1237.104-71 Administrative treatment.
1237.110 Solicitation provisions and contract clauses.
48 CFR 1236.606-70 Subpart 1237.2 -- Consulting Services
1237.204 Policy.
1237.205 Management controls.
1237.270 Contracts for stenographic reporting services.
48 CFR 1236.606-70 Subpart 1237.70 -- Mortuary Services
1237.7000 Scope of subpart.
1237.7001 Acquisition by contract.
1237.7002 Area of performance.
1237.7003 Schedule format.
1237.7004 Small purchases.
1237.7005 Solicitation provisions and contract clauses.
Authority: Sec. 205 (C) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44552, Nov. 19, 1987, unless otherwise noted.
48 CFR 1236.606-70 Subpart 1237.1 -- Service Contracts -- General
1237.104 Personal services contracts.
48 CFR 1237.104-70 Taxes.
Where the individual is to render personal services, the compensation
generally is subject to FICA (Social Security), FUTA (Unemployment
Compensation), and Federal income withholding taxes. It may also be
necessary to report or withhold state income tax under 5 U.S.C. 5517.
The contracting officer shall take appropriate steps in coordination
with the cognizant personnel office to have deductions and reports made
where required by law.
48 CFR 1237.104-71 Administrative treatment.
Individuals who are to render personal services under contract are
charged against personnel ceilings in the same way as experts and
consultants employed by excepted appointments. Also, the cognizant
personnel office must maintain certain records on individuals who render
personal services. Therefore, the contracting officer shall effect
necessary coordination with the cognizant personnel office before award
of a contract for personal services and may also designate the
appropriate personnel officer as her or his representative for the
purpose of obtaining necessary data from the contractor for tax
withholding purposes, for suitability investigation under Executive
Order 10450, and for administering applicable conflict of interest
provisions.
48 CFR 1237.110 Solicitation provisions and contract clauses.
Contracting officers shall insert the provision at 1252.237-71
''Qualifications of Employees'' in all solicitations and contracts for
services which require performance at a Government facility.
48 CFR 1237.110 Subpart 1237.2 -- Consulting Services
48 CFR 1237.204 Policy.
In addition to the prohibitions regarding consulting services listed
at FAR 37.204(c), the following apply:
(a) Consulting services shall normally be obtained only on an
intermittent or temporary basis; repeated or extended arrangements are
not to be entered into except under extraordinary circumstances.
(b) Grants and cooperative agreements shall not be used to acquire
consulting services.
48 CFR 1237.205 Management controls.
DOT management controls, including approvals required, are set forth
in DOT Order 4200.15, Criteria and Guidelines for the Use of Consulting
Services.
48 CFR 1237.270 Contracts for stenographic reporting services.
Stenographic reporting services normally are provided by Federal
Government employees appointed under the usual civil service procedures.
However, these services may be acquired by contract from individuals or
firms pursuant to 5 U.S.C. 3109 or other statutory authority where there
are variable requirements or insufficient qualified personnel, and
necessity of economy to the Government demands acquisition by contract.
Such contracts normally shall be written on an end-product basis and
payment made according to delivered items (e.g., number of copies of
transcript, words per page, etc.), and the contractor ordinarily shall
be required to furnish the necessary material (typewriter, paper,
bindings, etc.). These contracts are subject to all provisions of this
subpart.
48 CFR 1237.270 Subpart 1237.70 -- Mortuary Services
48 CFR 1237.7000 Scope of subpart.
This subpart is applicable only to the Coast Guard. It sets forth
acquisition procedures peculiar to contracts for mortuary services (the
care of remains) of Coast Guard personnel.
48 CFR 1237.7001 Acquisition by contract.
(a) Where an existing contract for the care of remains is not
available for Coast Guard use, acquisition of such services shall be
accomplished by sealed bidding except where negotiation is authorized.
(b) The contract format and terms and conditions set forth in this
subpart are appropriate for inclusion in a requirements type contract.
They should be altered as deemed necessary by the contracting officer to
fit a different contract type or acquisition situation.
48 CFR 1237.7002 Area of performance.
Each contract for care of remains shall clearly define the
geographical area covered by the contract. The area shall be determined
by the activity entering into the contract in accordance with the
following general guidelines. It shall be an area using political
boundaries, streets, and other features such as demarcation lines.
Generally, this should be a size roughly equivalent to the contiguous
metropolitan or municipal area enlarged to include the activities
served. In the event the area of performance best suited to the needs
of a particular contract is not large enough to include a carrier
terminal commonly used by people within such area, the contract area of
performance shall specifically state that it includes such terminal as a
pickup or delivery point.
48 CFR 1237.7003 Schedule format.
Set forth below is an example of a schedule format suitable for use
in solicitations.
48 CFR 1237.7004 Small purchases.
Purchases under $25,000 which cannot be covered by any existing
contract shall be handled in accordance with FAR Part 13.
48 CFR 1237.7005 Solicitation provisions and contract clauses.
(a) All the regulatory citations in this 1237.7005 are to the
Department of Defense (DOD) FAR Supplement (except that to FAR 52.245-4
in paragraph (e) of this section).
(b) The contracting officer shall insert the DOD provision at
252.237-7100, ''Award to Single Bidder,'' in sealed bid solicitations
for mortuary services contracts.
(c) The contracting officer shall insert the DOD provision at
252.237-7101, ''Award to Single Offeror,'' in negotiated solicitations
for mortuary services contracts.
(d) The contracting officer shall insert the following DOD clauses in
mortuary services solicitations and contracts except those for port of
entry requirements:
252.237-7102, Requirements;
252.237-7103, Area of Performance;
252.237-7104, Specifications;
252.237-7105, Using Activities;
252.237-7106, Delivery Order and Invoices;
252.237-7107, Delivery and Performance;
252.237-7108, Subcontracting;
252.237-7109, Additional Default Provisions;
252.237-7110, Group Interment;
252.237-7111, Professional Requirements;
252.237-7112, Facility Requirements;
252.237-7113, Preparation History.
(e) In port of entry solicitations and contracts for mortuary
services, the contracting officer shall insert the Government-Furnished
Property (Short Form) clause at FAR 52.245-4 and all of the DOD clauses
in paragraph (d) of this section except the ''Area of Performance'' and
''Facility Requirements'' clauses.
48 CFR 1237.7005 SUBCHAPTER G -- CONTRACT MANAGEMENT
48 CFR 1237.7005 PART 1242 -- CONTRACT ADMINISTRATION
48 CFR 1237.7005 Subpart 1242.1 -- Interagency Contract Administration
and Audit Services
Sec.
1242.101 Policy.
48 CFR 1237.7005 Subpart 1242.2 -- Assignment of Contract Administration
1242.203 Retention of contract administration.
1242.203-70 Contract clauses.
48 CFR 1237.7005 Subpart 1242.7 -- Indirect Cost Rates
1242.705 Final indirect cost rates.
1242.705-2 Auditor determination procedure.
1242.708 Quick-closeout procedure.
48 CFR 1237.7005 Subpart 1242.12 -- Novation and Change-of-Name
Agreements
1242.1202 Responsibility for executing agreements.
1242.1203 Processing agreements.
Authority: Sec. 205(c) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44553, Nov. 19, 1987, unless otherwise noted.
48 CFR 1237.7005 Subpart 1242.1 -- Interagency Contract Administration and Audit Services
48 CFR 1242.101 Policy.
It is the policy of the Department of Transportation to make optimum
use of the contract administration, audit and related support functions
available from the Department of Defense and other Government agencies.
However, technical direction of all contracts awarded, regardless of the
agency responsible for administration, shall remain with DOT.
48 CFR 1242.101 Subpart 1242.2 -- Assignment of Contract Administration
48 CFR 1242.203 Retention of contract administration.
(a) Except as provided elsewhere in FAR 42.203, DOT contracting
officers shall retain contract administration responsibility when it is
clear that the contracting office can best perform this function.
(b) In all cases, the contracting officer shall retain the
responsibility for contract administration related to the clause
entitled ''Contractor Testimony'' (see 1242.203-70).
48 CFR 1242.203-70 Contract clauses.
(a) The contracting officer shall insert the clause at 1242.242-71
''Contractor Testimony'' in all solicitations and contracts issued by
the National Highway Traffic Safety Administration. The clause may be
used by other administrations, as deemed appropriate.
(b) The contracting officer shall insert the clause at 1252.242-72
''Dissemination of Contract Information'' in all DOT contracts except
those whose statement of work requires the release or coordination of
information.
(c) The contracting officer may use the clause at 1252.242-70
''Dissemination of Information -- Educational Institutions'' in lieu of
the clause at 1252.242-72 in DOT research contracts with educational
institutions, except those whose statement of work requires the release
or coordination of information.
48 CFR 1242.203-70 Subpart 1242.7 -- Indirect Cost Rates
1242.705 Final indirect cost rates.
48 CFR 1242.705-2 Auditor determination procedure.
DOT contracting officers shall request final indirect cost rate
determinations in accordance with DOT Order 8000.7, Audit Services for
DOT Contracting Offices.
(53 FR 28400, July 28, 1988)
48 CFR 1242.708 Quick-closeout procedure.
DOT contracting officers may utilize quick-closeout procedures, in
accordance with 1204.804-5(b), on contracts not exceeding $1,000,000
provided the stipulations at FAR 42.708(a) (1) through (3) are met.
(52 FR 44553, Nov. 19, 1987, as amended at 53 FR 28400, July 28,
1988)
48 CFR 1242.708 Subpart 1242.12 -- Novation and Change-of-Name Agreements
48 CFR 1242.1202 Responsibility for executing agreements.
When more than one administration has outstanding contracts with a
contractor seeking a novation or change of name agreement, a single
agreement covering all such contracts shall be executed by the
administration having the largest unsettled (unbilled plus billed but
unpaid) dollar balance.
48 CFR 1242.1203 Processing agreements.
(a) The administration processing a proposed novation agreement shall
promptly provide notice of the proposed agreement, including the list of
contracts as required by FAR 42.1203(b)(2), to the other administrations
having contracts with the contractor or contractors concerned. Such
notice shall be transmitted to the appropriate addressee listed in
1242.1202 above. Within 30 days after receipt of such notice, the
administration(s) may submit comments to the processing administration.
These comments shall be considered prior to execution of the proposed
agreement. The absence of comment from an administration within 30 days
after its receipt of notice of a proposed novation agreement shall be
construed as approval by that administration.
(b) Where substantial alteration or additions to the formats set
forth in FAR 42.1204 and FAR 42.1205 are considered appropriate by the
administration processing the proposed agreement, that administration
shall coordinate the agreement with the other administrations affected
by the agreement prior to execution. Any objection shall be resolved
before the agreement is executed.
(c) A signed copy of the executed novation agreement or change of
name agreement shall be forwarded to the contractor. A signed copy
shall be retained in the administration executing the agreement. Where
more than one administration is involved, two copies of the agreement
shall be distributed to the appropriate addressee listed in 1242.1202.
(d) After execution and distribution of an agreement, a modification
(Standard Form 30) shall be prepared by the processing activity
incorporating a summary of the agreement and attaching a complete list
of the contracts affected. For single administration agreements, three
copies of the Standard Form 30 shall be furnished for each contract to
the contracting offices concerned and, for multi-administration
agreements, to the appropriate addressee listed in 1242.1202.
48 CFR 1242.1203 PART 1243 -- CONTRACT MODIFICATIONS
Authority: Sec. 205(c) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c). 48 CFR 1.301; 49 CFR 1.59).
48 CFR 1242.1203 Subpart 1243.70 -- Scope of Work
48 CFR 1243.7001 Policy.
The contracting officer shall review all delivery orders and contract
modifications which order, add, define, or change work to be performed
under an existing contract. For all such delivery orders and contract
modifications, the contracting officer shall ensure that the items or
services being ordered are within the scope of work set forth in the
basic contract.
(53 FR 28400, July 28, 1988)
48 CFR 1243.7001 PART 1244 -- SUBCONTRACTING POLICIES AND PROCEDURES
Authority: Sec. 205(c), Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)); 48 CFR 1.301; 49 CFR 1.59.
48 CFR 1243.7001 Subpart 1244.3 -- Contractors' Purchasing Systems Reviews
48 CFR 1244.302 Requirements.
In those cases where contractor purchasing system review (CPSR)
approval may be required, the contracting officer will obtain the
following information from prospective contractors:
(a) Date of most recent CPSR;
(b) Name, address, and telephone number of the administrative
contracting officer who conducted the most recent CPSR; and
(c) Expected total dollar value of negotiated sales to the Government
over the next 12 month period.
(52 FR 44554, Nov. 19, 1987)
48 CFR 1244.302 PART 1245 -- GOVERNMENT PROPERTY
48 CFR 1244.302 Subpart 1245.1 -- General
Sec.
1245.101 Definitions.
1245.102 Policy.
1245.102-70 Reporting of contractor-held Government property by DOT
administrations.
1245.102-71 Contract property control file.
1245.102-72 Special test equipment and special tooling.
1245.104 Review and correction of contractors' property control
system.
1245.104-70 Evaluation and approval of contractors' property control
system.
1245.104-71 Review of contractors' property control system during
contract performance.
48 CFR 1244.302 Subpart 1245.3 -- Providing Government Property to
Contractors
1245.302-1 Policy.
48 CFR 1244.302 Subpart 1245.4 -- Contractor Use and Rental of
Government Property
1245.407 Non-Government use of plant equipment.
48 CFR 1244.302 Subpart 1245.5 -- Management of Government Property in
the Possession of Contractors
1245.501 Definition.
1245.502-1 Receipts for Government property.
1245.505 Records and reports of Government property.
1245.505-4 Records of special tooling and special test equipment.
1245.505-5 Records of plant equipment.
1245.505-11 Records of transportation and installation costs of plant
equipment.
1245.505-14 Reports of Government property.
1245.505-70 Solicitation provisions and contract clauses.
1245.506 Identification.
1245.508 Physical inventories.
48 CFR 1244.302 Subpart 1245.6 -- Reporting, Redistribution, and
Disposal of Contractor Inventory
1245.603 Disposal methods.
1245.603-70 Plant clearance function.
1245.607 Scrap.
1245.607-2 Recovering precious metals.
1245.608-3 Agency screening.
1245.608-5 Special items screening.
1245.610-4 Contractor inventory in foreign countries.
Authority: Sec. 205(C) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)); 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44554, Nov. 19, 1987, unless otherwise noted.
48 CFR 1244.302 Subpart 1245.1 -- General
48 CFR 1245.101 Definitions.
Capitalized equipment as used in this part, means personal property
(plant equipment) of a nonexpendable nature having a unit cost of $5,000
or more.
Noncapitalized equipment as used in this part, means personal
property (plant equipment) of a nonexpendable nature having a unit
acquisition cost of $50 or more but less than $5,000, and other items of
personal property regardless of cost when so designated by the
Government.
(53 FR 28401, July 28, 1988)
1245.102 Policy.
48 CFR 1245.102-70 Reporting of contractor-held property by DOT
administrations.
By October 31 each year, each DOT administration shall report the
following information to the Director, Office of Administrative Services
and Property Management (M-40).
(a) Name and address of each contractor with DOT property in its
possession, or in the possession of their subcontractors (do not include
grants, cooperative agreements, interagency agreements, or agreements
with state or local governments).
(b) Contract number of each DOT contract with Government property.
(c) Date contractor's property management system was approved and by
whom (DOT Office, Defense Contract Administration Service, etc.).
(d) Separate dollar totals of DOT real property, capitalized
equipment, and material maintained in stocks (when value is $50,000 or
more) as reported in the contractor's annual financial report for each
DOT contract administered by the contracting activity.
48 CFR 1245.102-71 Contract property control file.
Upon award of a contract, the property administrator will establish a
contract property control file which will include as a minimum:
(a) Copy of the contract or extract of provisions thereof
establishing requirements for property administration (except when the
property control file is maintained as an adjunct to the contract
working file);
(b) Letters designating authorized representatives of the contracting
officer for property matters;
(c) Report of initial review, evaluation, and approval of the
contractor's property control system;
(d) Record of visits, property system examinations and analyses, and
appropriate work papers;
(e) Documents evidencing the furnishings of Government property;
(f) Contractor's receipts for Government furnished property;
(g) Contractor's notices of acquisitions of contractor purchased or
fabricated Government property;
(h) Contractor's physical inventory and financial property reports as
prescribed;
(i) Documents evidencing the removal of Government property from the
custody of the contractor, the transfer of Government property to
another contract or another contractor, and the disposal of Government
property;
(j) Documents evidencing relief of the contractor from responsibility
for Government property due to loss, damage, destruction, or
unreasonable wear or deterioration or unjustifiable consumption in the
performance of the contract;
(k) Any other correspondence affecting that status of Govenment
property under the contract; and
(l) Statement of closure of the contract property account.
48 CFR 1245.102-72 Special test equipment and special tooling.
Special test equipment and special tooling are not recognized in DOT
as separate categories of property (see 1245.505-4). Property of this
nature will be controlled in the same way as other items of plant
equipment.
48 CFR 1245.104 Review and correction of contractors' property control
system.
When review of the contractor's property control system is not
delegated to DOD, the DOT contracting officer or property administrator
will conduct the review as required by 1245.104-70 and 1245.104-71.
48 CFR 1245.104-70 Evaluation and approval of contractors' property
control system.
(a) The choice of the methods to be used for evaluation and approval
of the contractor's property control system is a matter of judgment by
the property administrator, predicated on the nature and amount of
Government property involved in any particular contract. Regardless of
the methods used, it is the responsibility of the property administrator
to determine that the contractor's system will meet the requirements of
FAR Subpart 45.5, and of Subpart 1245.5 and other contract requirements,
as appropriate.
(b) It is normal contractor practice to provide for the control of
property by means of written procedures that communicate the
organization's standards, techniques, and instructions to operational
personnel for uniform application. However, depending on the number of
contractor employees and the nature, quantity, and value of the
property, a contractor may not need written procedures for effective
management of Government property. In such cases, the property
administrator, if he/she agrees that written procedures are not
required, will evaluate the adequacy of the contractor's system on the
basis of the contractor's explanation of its controls and prepare a
brief description of the applicable procedures for inclusion in the
contract property control file.
(c) Upon completing the evaluation of the contractor's system, the
property administrator will prepare a written summary of findings to
support approval of the system or requirement for corrective action
prior to such approval. The property administrator will forward to the
contractor a listing of any deficiencies found as a result of the
evaluation. The contractor will be requested to indicate, within 30
days after receipt of the listing, its willingness to correct the
deficiencies or to forward to the property administrator a statement of
its position.
(d) When the property administrator is not successful in obtaining
compliance with contract requirements, he/she will advise the
contracting officer. The contracting officer shall take appropriate
action in accordance with FAR 45.104(c). If the contractor fails to make
satisfactory progress for correction of the deficiencies in accordance
with the schedule, the contracting officer will so inform the contractor
in writing, and state that approval of its property control system is
withheld or withdrawn, as the case may be. A copy of that advisement
shall be provided to the property administrator.
(e) When the contractor's property control system is acceptable, the
property administrator will so advise the contractor in writing. When
the contract involves Government property at subcontractor plants or
prime contractor secondary locations, and the controls for the property
at such locations have been determined to be adequate, the approval will
be expanded to include the procedures governing Government property at
such locations.
48 CFR 1245.104-71 Review of contractors' property control system during
contract performance.
(a) While the contractor has an incurred obligation to comply with
the property control requirements of the contract, it is incumbent upon
the Government to ensure that the contractor does in fact comply. The
preferred method for carrying out this responsibility is for the
Government to periodically conduct system reviews at the contractor's
premises. The need for, and frequency of, such reviews should be based
on case-by-case determinations, considering the particular circumstances
relative to a given contract or contractor. When the property
administrator feels that a system review is necessary, then he/she must
arrange for the conduct of such a review by an appropriate means.
(b) Notwithstanding the requirements of paragraph (a) of this
section, it is the continuing responsibility of the property
administrator to be alert to any indications that the contractor's
property control system may be deficient. Examples of such indications
are as follows:
(1) Failure of the contractor to acknowledge receipt of Government
furnished property;
(2) Failure of the contractor to provide notices of contractor
acquisitions of Government property when the contract provides for such
acquisition;
(3) Failure of the contractor to submit the annual financial property
and physical inventory reports specified in 1245.505-14 and 1245.508;
(4) Discrepancies in contractor's records and weaknesses in control
as reflected by the contractor's physical inventory reports;
(5) Contractor's financial property reports do not reconcile with DOT
financial control accounts;
(6) Analysis of contractor's costs indicates consumption of material
in excess of that considered reasonable;
(7) Inability of the contractor to furnish property listings when
requested to do so; or
(8) Analysis of contractor's request for relief of responsibility due
to loss or damage indicates inadequate control.
(c) When the property administrator has reason to believe that the
contractor's property control system is deficient or inadequate, the
property administrator must take prompt action to obtain correction of
such problems. In some cases, discussions with the contractor may
suffice. In other cases, it may be necessary to arrange for an on-site
system review as discussed in paragraph (a) of this section. Another
alternative is to request the conduct of an audit by the appropriate
Government contract audit activity. If the situation demands, the
procedures set forth in 1245.104-70(d) will be applied.
(d) Records and accounts of Government property will be audited by
the Government as frequently as conditions warrant or as may be
specifically requested by the contracting officer. Audits may take
place at any time during the performance of the contract, upon
completion or termination of the contract, or at any time thereafter.
Audits will include records maintained by the contractor and
Government-maintained records for the property involved. Government
personnel and the contractor are required to make all property records,
including correspondence related thereto, available to the auditors.
48 CFR 1245.104-71 Subpart 1245.3 -- Providing Government Property to Contractors
48 CFR 1245.302-1 Policy.
Contracting officers have been designated to make determinations
required by FAR 45.302-1(a)(4) on providing Government facilities.
48 CFR 1245.302-1 Subpart 1245.4 -- Contractor Use and Rental of Government Property
48 CFR 1245.407 Non-Government use of plant equipment.
The prior written approval of the contracting officer is required for
any non-Governmental use of active Government-owned plant equipment.
Before non-Government use exceeding 25 percent may be authorized, prior
approval of the head of the contracting activity shall be obtained.
48 CFR 1245.407 Subpart 1245.5 -- Management of Government Property in the Possession of Contractors
48 CFR 1245.501 Definition.
To supplement the definition at FAR 45.501, ''property
administrator,'' as used in this subpart, means an authorized
representative of the contracting officer, when designated, or the
contracting officer.
48 CFR 1245.502-1 Receipts for Government property.
Immediately upon receipt of any Government-furnished property, the
contractor shall sign and return the Government transfer document to the
property administrator. For contractor-acquired capitalized equipment,
the contractor shall submit itemized reports as a condition for the
reimbursement of costs incurred in the purchase or fabrication of such
property. Each item shall be adequately described, including unit cost.
Reports shall be provided by the contractor not later than the time it
submits its application for payment (public voucher) for the property.
Upon request of the Government, the contractor shall submit supporting
data for any material cost or noncapitalized equipment included in the
voucher.
1245.505 Records and reports of Government property.
48 CFR 1245.505-4 Records of special tooling and special test equipment.
Since special test equipment and special tooling are not recognized
in DOT as separate categories of property, no special property
management controls will be established. Property of this nature shall
be controlled in the same way as other items of ''capitalized'' and
''noncapitalized'' equipment.
48 CFR 1245.505-5 Records of plant equipment.
The individual records requirements of FAR 45.505 apply to
capitalized plant equipment. Summary stock records may be maintained
for noncapitalized plant equipment except where the property
administrator determines that individual item records are necessary for
effective control, calibration or maintenance.
48 CFR 1245.505-11 Records of transportation and installation costs of
plant equipment.
The requirements of FAR 45.505-11 apply to capitalized plant
equipment.
48 CFR 1245.505-14 Reports of Government property.
(a) Control system. The contractor's property control system shall
be such as to provide, at any time, the dollar amount of Government
property for which it is accountable under each contract in the
following classifications:
(1) Real property;
(2) Capitalized equipment;
(3) Noncapitalized equipment; and
(4) Material maintained in stocks.
The contractor's accounts shall be susceptible to reconciliation in
totals and subtotals as to whether contractor-acquired or
Government-furnished.
(b) Submissions of financial property reports. (1) The contractors
shall prepare a report as of July 31 each year, for each contract,
showing the dollar amount of Government real property, capitalized
equipment, and material maintained in stocks (when value is $50,000 or
more) in the possession of the contractor and his subcontractors.
Reports shall be prepared in the format shown below and shall be
furnished to the property administrator not later than September 15 each
year. Subcontract reports shall be consolidated with prime contract
reports. The contractor shall certify that the reports have been
reconciled and are in balance with the contract property records. If
specifically requested by the property administrator, the contractor
shall submit similar reports for Government noncapitalized equipment and
material maintained in stocks when value is less than $50,000.
(2) Financial property report format.
(3) Contractor's reports of physical inventory shall be submitted on
an annual basis as set forth in 1245.508.
48 CFR 1245.505-70 Solicitation provisions and contract clauses.
Contracting officers shall insert the clause at 1252.245-70,
Government Property Reports, in all solicitations and contracts which
include either FAR clause 52.245-2, Government Property (Fixed Price
Contracts) or 52.245-5, Government Property (Cost-Reimbursement, Time
and Material, or Labor Hour Contracts).
(53 FR 28401, July 28, 1988)
48 CFR 1245.506 Identification.
The requirements of FAR 45.506(b) apply to noncapitalized Government
property. The requirements of FAR 45.506(c) apply to capitalized
government property.
48 CFR 1245.508 Physical inventories.
(a) Annual inventories. The contractor shall perform an annual
physical inventory of the following categories of Government property in
its possession or control and shall require such inventories of any
subcontractors that are in possession of Government property provided
under the contract:
(1) Capitalized property;
(2) Noncapitalized property;
(3) Material maintained in stocks.
(b) Reporting results of annual inventories. Within 30 days after
the completion of an annual inventory, the contractor shall submit the
following information to the property administrator:
(1) A list, on both a quantitative and monetary basis, of all
discrepancies disclosed by the inventory in each category of Government
property.
(2) A signed statement that physical inventory of Government property
under the contract was completed on a specified date and that the
contractor's official property records were found to be in agreement
with the physical inventory except for the discrepancies noted; and
(3) If specifically requested by the property administrator, a list
of all items of capitalized equipment.
48 CFR 1245.508 Subpart 1245.6 -- Reporting, Redistribution, and
Disposal of Contractor Inventory
1245.603 Disposal methods.
48 CFR 1245.603-70 Plant clearance function.
If the plant clearance function has not been formally delegated to
another Federal agency, the contracting officer must assume all
responsibilities of the plant clearance officer identified in FAR 45.6.
1245.607 Scrap.
48 CFR 1245.607-2 Recovering precious metals.
DOT Order 4430.5, Recovery and Utilization of Precious Metals,
establishes procedures for the recovery and acquisition of precious
metals.
48 CFR 1245.608-3 Agency screening.
Excess and residual contract inventory is subject to the same
Departmental redistribution requirements as are prescribed for internal
Departmental excess property. Accordingly, contracting officers shall
assure that excess and residual contract property are screened within
the Department in accordance with DOT Order 4600.1E, Redistribution of
Excess Personal Property.
48 CFR 1245.608-5 Special items screening.
Excess automatic data processing equipment shall be screened
internally within the Department as required by DOT Order 4000.6A,
Reassignment of Excess Automatic Data Processing Equipment.
48 CFR 1245.610-4 Contractor inventory in foreign countries.
DOT contractor inventory located in foreign countries shall be
utilized and disposed of in accordance with FPMR 101-43.5.
48 CFR 1245.610-4 PART 1246 -- QUALITY ASSURANCE
48 CFR 1245.610-4 Subpart 1246.6 -- Material Inspection and Receiving
Reports
Sec.
1246.601 Material inspection and receiving reports.
48 CFR 1245.610-4 Subpart 1246.7 -- Warranties
1246.701 Definitions.
1246.702 General.
1246.703 Criteria for use of warranties.
1246.704 Authority for use of warranties.
1246.705 Limitations.
1246.706 Warranty terms and conditions.
1246.770 Use of warranties in major system acquisitions by Coast
Guard.
1246.770-1 Policy.
1246.770-2 Tailoring warranty terms and conditions.
1246.770-3 Warranties on government-furnished property.
1246.771 Cost benefit analysis.
1246.772 Waiver and notification procedures.
Authority: 40 U.S.C. 486(c); Pub. L. 99-190 (10 U.S.C. 2304 note);
48 CFR 1.301; 49 CFR 1.59.
48 CFR 1245.610-4 Subpart 1246.6 -- Material Inspection and Receiving Reports
48 CFR 1246.601 Material inspection and receiving reports.
Each administration shall use FAA Form 256 or an alternate procedure.
(52 FR 44557, Nov. 19, 1987)
48 CFR 1246.601 Subpart 1246.7 -- Warranties
Source: 53 FR 30177, Aug. 10, 1988, unless otherwise noted.
48 CFR 1246.701 Definitions.
At no additional cost to the United States, as used in this subpart,
means at no increase in price for firm-fixed-price contracts or at no
increase in target or ceiling price for fixed price incentive contracts
(see FAR 46.707) or at no increase in estimated cost or fee for
cost-reimbursement contracts.
Defect, as used in this subpart, means any condition or
characteristic in any supplies or services furnished by the contractor
under the contract that is not in compliance with the requirements of
the contract.
Design and manufacturing requirements, as used in this subpart, means
structural and engineering plans and manufacturing particulars,
including precise measurements, tolerances, materials and finished
product tests for the major system being produced.
Major system, as used in this subpart, means a system or major
subsystem used directly by the agency to carry out its mission(s), as
defined by DOT Order 4200.14B, Major Systems Acquisition Review and
Approval. This term does not include related support equipment, such as
ground-handling equipment, training devices and accessories thereto;
unless an effective warranty for the system would require inclusion of
such items. This term does not include commercial items sold in
substantial quantities to the general public as described in FAR
15.804-3(c).
Performance requirements, as used in this subpart, means the
operating capabilities, maintenance, and reliability characteristics of
a system that are determined to be necessary for it to fulfill the
requirement for which the system is designed.
Prime contractor, as used in this subpart, means a party that enters
into an agreement directly with the United States to furnish a system or
a major subsystem.
48 CFR 1246.702 General.
In addition to the considerations outlined in FAR 46.702, the
following areas should be addressed by all DOT administrations in
relation to the use of warranties in DOT contracts:
(a) Planning is an essential step in obtaining an effective warranty
and should begin early enough to address warranty requirements during
the development of the item. Therefore, consideration of warranty
provisions and their impact shall be included within the comprehensive
acquisition planning process required by FAR Part 7 as implemented by
DOT Order 4200.14B, Major Systems Acquisition Review and Approval.
(b) The acquisition cost of a warranty may be included as part of an
item's price when cost or pricing data will clearly define cost of the
warranty to the Government, or may be set forth as a separate contract
line item.
(c) Each administration within DOT shall establish a tracking and
enforcement system, as appropriate, to identify items covered, to
provide information to Government personnel about enforcing the warranty
provisions, and accumulate data relative to warranty costs. Each
administration shall make an annual report to the Director of
Acquisition and Grant Management, on warranty related costs and
enforcement experience, no later than 60 days after the end of each
fiscal year.
48 CFR 1246.703 Criteria for use of warranties.
(a) Acquisition of warranties in the procurement of supplies that do
not meet the definition of a major system (e.g., spare, repair, or
replenishment parts) is governed by FAR 46.703 for all DOT
administrations. Contracting officers should negotiate a warranty that
meets or exceeds the requirements of section 1246.706 of this part where
such warranty is advantageous and conforms to Departmental policy.
(b) The use of warranties in the procurement of major systems by the
United States Coast Guard is mandatory, unless a waiver is authorized.
The use of warranties in major system acquisitions by DOT
administrations other than the Coast Guard is voluntary.
(c) Warranties should be obtained only when they are cost beneficial.
In order to determine whether use of a warranty would be cost
beneficial, an analysis must be performed to compare the benefits to be
derived from the warranty with its acquisition and administration costs,
and the contract file documented accordingly. The analysis should
examine the procurement's life cycle costs, both with and without a
warranty. Where possible, a comparison should be made with the costs of
obtaining and enforcing similar warranties for similar supplies or
services.
48 CFR 1246.704 Authority for use of warranties.
(a) For any contract entered into by an operating administration,
other than a contract entered into by the Coast Guard for major system
acquisitions, the contracting officer shall determine if a warranty
clause is appropriate in accordance with 1246.703(c), prior to
solicitation of a requirement. If a warranty is determined to be
appropriate, he/she shall document the reason for inclusion of a
warranty and identify the specific parts, subassemblies, assemblies,
systems or contract line items to which a warranty should apply, and
shall address why the warranty is appropriate under the criteria set
forth in FAR 46.703. For DOT administration, other than the Coast Guard,
the policy and procedures set forth in section 1246.770 of this part for
use of warranties in major system acquisitions may be used as a
guideline.
(b) Authority for use of warranties in the procurement of major
systems by the Coast Guard is stated in section 1246.703 of this part.
The policy and procedures on warranties set forth in section 1246.770 of
this part are mandatory for Coast Guard. The Coast Guard shall use the
procedure set forth in paragraph (a) above for including a warranty in
procurements other than major system acquisitions.
48 CFR 1246.705 Limitations.
In addition to limitations set forth in FAR 46.705, the following
restrictions are applicable to all DOT contracts:
(a) The Coast Guard is the only DOT administration which is
authorized to include warranties in cost-reimbursement contracts for the
production of major systems as required by 1246.770 of this part.
(b) Any written warranty on major system acquisitions shall not apply
in the case of any system or component thereof which has been furnished
by the Government to a contractor except as indicated in section
1246.770-3 of this part.
(c) Any written warranty obtained shall specifically exclude coverage
of combat damage.
48 CFR 1246.706 Warranty terms and conditions.
(a) In addition to those items set forth in FAR 46.706, the
contracting officer, in developing the warranty terms and conditions,
shall consider the following subjects, and where appropriate and cost
beneficial shall:
(1) Identify the affected line item(s) and the applicable
specification(s);
(2) Require that the line item's design and manufacture will conform
to:
(i) An identified revision of a top-level drawing, and/or
(ii) An identified specification or revision thereof;
(3) Require that the system conforms with the specified Government
performance requirements;
(4) Require that all systems and components delivered under the
contract will be free from defects in materials and workmanship;
(5) State that in the event of failure due to nonconformance with
specification and/or defects in material and workmanship, the contractor
will bear the cost of all work necessary to achieve the specified
performance requirements, including repair and/or replacement of all
parts;
(6) Require the timely replacement/repair of warranted items and
specify lead times for replacement/repair where possible.
(7) Identify the specific paragraphs containing Government
performance requirements which must be met;
(8) Ensure that any performance requirements identified as goals or
objectives in excess of specification requirements are excluded from the
warranty provision;
(9) Define what constitutes the start of the warranty period (e.g.,
delivery, acceptance, in-service date), the ending of the warranty
(e.g., passing a test or demonstration, or operation without failure for
specified time period), and circumstances requiring an extension of
warranty duration (e.g., extending the warranty period as a result of
mass defect correction during warranty period);
(10) Identify what transportation costs will be paid by the
contractor in conjunction with warranty coverage;
(11) Identify any conditions which will not be covered by the
warranty, other than the exclusion of combat damage; and
(12) Identify any limitation on the total dollar amount of the
contractor's warranty exposure, or agreement to share costs after a
certain dollar threshold to avoid unnecessary warranty returns.
(b) In addition, any DOT contract that contains a warranty clause
must contain warranty implementation procedures, including warranty
notification content and procedures, and identify the individuals
responsible for implementation of warranty provisions. The contract may
also permit the contractor's participation in investigation of system
failures, providing that the contractor be paid at established rates for
fault isolation work, and that the Government receive credit for any
payments where equipment failure is covered by warranty provisions.
48 CFR 1246.770 Use of warranties in major system acquisitions by Coast
Guard.
Subsections 1246.770-1 through 1246.770-3 set forth policy and
procedures for the Coast Guard to use in obtaining warranties from prime
contractors when contracting for the production of a major system.
Other administrations within the Department may use these procedures as
guidelines for major system acquisitions.
48 CFR 1246.770-1 Policy.
The Coast Guard shall include written warranties in all contracts
with prime contractors for major system acquisitions. When drafting
warranty provisions for major system acquisitions, the items listed at
1246.706 should be considered. The warranties shall meet the following
requirements (as well as those specified at 1246.771):
(a) For systems or components which are commercially available, such
warranty as is normally provided by the manufacturer or supplier shall
be obtained in accordance with FAR 46.703(d) and 46.710.
(b) For systems or components provided in accordance with either
design or performance requirements as specified in the contract or any
modification to that contract, a written warranty of compliance with the
stated requirements shall be obtained.
(c) The warranty provided under paragraph (b) of this section, shall
provide that in the event the major system or any component thereof
fails to meet the terms of the warranty provided, the contracting
officer may:
(1) Require the contractor to promptly take such corrective action as
the contracting officer determines to be necessary at no additional cost
to the United States, including repairing or replacing all parts
necessary to achieve the requirements set forth in the contract,
(2) Require the contractor to pay costs reasonably incurred by the
United States in taking necessary corrective action, or
(3) Equitably reduce the contract price.
(d) Any written warranty shall specifically exclude coverage of
combat damage.
48 CFR 1246.770-2 Tailoring warranty terms and conditions.
As the objectives and circumstances vary considerably among major
system acquisition programs, contracting officers shall appropriately
tailor the required warranties on a case-by-case basis, including
remedies, exclusions, limitations and duration; provided such are
consistent with the specific requirements of this section (see FAR
46.706). Contracting officers for major system acquisitions may exclude
from the terms of the warranty certain defects for specified supplies
(exclusions) and may limit the contractor's liability under the terms of
the warranty (limitations), as appropriate, if necessary to derive a
cost-effective warranty in light of the technical risk, contractor
financial risk, or other program uncertainties. Contracting officers
are encouraged to structure broader and more comprehensive warranties
where such are advantageous. Likewise, the contracting officer may
narrow the scope of a warranty when appropriate (e.g., where it would be
inequitable to require a warranty of all performance requirements
because a contractor had not designed the system). It is the
Department's policy not to include in warranty clauses any terms that
require contractor liability for loss, damage or injury to third
parties.
48 CFR 1246.770-3 Warranties on government-furnished property.
A prime contractor for a major system acquisition shall not be
required to provide the warranties specified in section 1246.770-2 of
this part on any property furnished to that contractor by the United
States except for defects in installation, and installation or
modification in such a manner that invalidates a warranty provided by
the manufacturer of the property.
48 CFR 1246.771 Cost benefit analysis.
It is the Department's policy to obtain warranties for a major system
acquisition only when they are cost beneficial in accordance with
1246.703(c). If a specific warranty is considered not to be cost
beneficial by the contracting officer, a waiver request shall be
initiated under section 1246.772 of this part.
48 CFR 1246.772 Waiver and notification procedures.
The Secretary of Transportation may waive the requirement for a
written warranty for Coast Guard major acquisition systems when such
waiver is in the interest of national defense or if the warranty
obtained would not be cost beneficial. Waivers may be granted provided
that the Committees on Appropriations of the Senate and the House of
Representatives are notified in writing of the Secretary's intention to
waive the warranty requirement and the reasons supporting such a
determination prior to granting the waiver. The written request for
Secretarial waiver of the warranty requirement shall include, at a
minimum:
(a) A brief description of the major system and its stage of
production, e.g., the number of units delivered and anticipated to be
delivered during the life of the program;
(b) The specific waiver requested, the duration of the waiver if it
is to involve more than one contract, and the rationale for the waiver;
and
(c) All documentation supporting the request for waiver, such as a
cost-benefit analysis.
All waivers shall be forwarded via the Office of Acquisition and
Grants Management for submission to the Secretary. The Coast Guard
shall maintain a written record of each waiver granted and the
Congressional notification and report made, together with supporting
documentation, for use in answering inquiries.
48 CFR 1246.772 PART 1249 -- TERMINATION OF CONTRACTS
Authority: Sec. 205(C) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 486(c)). 48 CFR 1.301; 49 CFR 1.59.
48 CFR 1246.772 Subpart 1249.1 -- General Principles
48 CFR 1249.111 Review of proposed settlements.
All proposed settlement agreements shall be coordinated with legal
counsel.
(52 FR 44557, Nov. 19, 1987)
48 CFR 1249.111 PART 1250 -- EXTRAORDINARY CONTRACTUAL ACTIONS
48 CFR 1249.111 Subpart 1250.2 -- Delegation of and Limitations on
Exercise of Authority
Sec.
1250.202 Contract adjustment boards.
48 CFR 1249.111 Subpart 1250.4 -- Residual Powers
1250.401 Standards for use.
Authority: Sec. 205(C) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 468(c)). 48 CFR 1.301; 49 CFR 1.59.
48 CFR 1249.111 Subpart 1250.2 -- Delegation of and Limitations on Exercise of Authority
48 CFR 1250.202 Contract adjustment boards.
DOT Order 1100.60, Department of Transportation Organizational Manual
establishes the Contract Appeals Board as the approving authority to
consider and dispose of requests for extraordinary contractual
adjustments for DOT contractors.
(52 FR 44557, Nov. 19, 1987)
48 CFR 1250.202 Subpart 1250.4 -- Residual Powers
48 CFR 1250.401 Standards for use.
It is DOT policy not to use the ''residual powers'' authorized by the
Act and FAR Subpart 50.4. Conctracting officers shall not include in DOT
contracts the clause at FAR 52.250-1, Indemnification Under Pub. L.
85-804, unless specifically authorized by the Secretary or designee.
(52 FR 44557, Nov. 19, 1987)
48 CFR 1250.401 SUBCHAPTER H -- CLAUSES AND FORMS
48 CFR 1250.401 PART 1252 -- SOLICITATION PROVISIONS AND CONTRACT
CLAUSES
Sec.
1252.000 Scope of part.
48 CFR 1250.401 Subpart 1252.1 -- Instructions for Using Provisions and
Clauses
1252.101 Using FAR Part 52.
1252.102 Incorporating provisions and clauses.
1252.102-2 Incorporation in full text.
1252.104 Procedures for modifying and completing provisions and
clauses.
48 CFR 1250.401 Subpart 1252.2 -- Texts of Provisions and Clauses
1252.207-70 Implementation of Right of First Refusal of Employment.
1252.207-71 Financial and technical ability.
1252.209-71 Disclosure of conflicts of interest.
1252.210-70 Brand name or equal.
1252.212-70 (Reserved)
1252.212-71 Notice of delay.
1252.215-70 (Reserved)
1252.215-71 Key personnel and facilities.
1252.215-72 Cost proposal instructions.
1252.216-70 (Reserved)
1252.216-71 Evaluation of proposals subject to economic price
adjustment.
1252.216-72 Estimated cost, base fee, and award fee.
1252.216-73 Payment of base and award fee.
1252.216-74 Determination of award fee earned.
1252.216-75 Performance evaluation plan.
1252.216-76 Distribution of award fee.
1252.217-70 Index for specifications.
1252.217-71 Delivery and shifting of vessel.
1252.217-72 Performance.
1252.217-73 Inspection and manner of doing work.
1252.217-74 Subcontracts.
1252.217-75 Lay days.
1252.217-76 Liability and insurance.
1252.217-77 Title.
1252.217-78 Discharge of liens.
1252.217-79 Delays.
1252.217-80 Department of Labor safety and health regulations for
ship repairing.
1252.217-81 Guarantee.
1252.222-70 Service Contract Act of 1965 as amended, Contracts of
$2,500 or less.
1252.222-71 Strikes or picketing affecting timely completion of the
contract work.
1252.222-72 Strikes or picketing affecting access to FAA facility.
1252.222-73 -- 1252.222-74 (Reserved)
1252.222-75 Service Contract Act of 1965 as amended.
1252.222-76 (Reserved)
1252.222-77 Fair Labor Standards Act and Service Contract Act --
Price adjustment (multiyear and option contracts).
1252.222-78 Fair Labor Standards Act and Service Contract Act --
price adjustment.
1252.222-79 Service Contract Act requirements as to vacation pay.
1252.223-70 (Reserved)
1252.223-71 Accident and fire reporting.
1252.223-72 Protection of human subjects.
1252.228-70 (Reserved)
1252.228-71 Loss of or damage to leased aircraft.
1252.228-72 Fair market value of aircraft.
1252.228-73 Risk and indemnities.
1252.235-70 (Reserved)
1252.235-71 Recoupment of development costs.
1252.236-70 (Reserved)
1252.236-71 Special precautions for work at operating airports.
1252.237-70 (Reserved)
1252.237-71 Qualifications of employees.
1252.242-70 Dissemination of information -- educational institutions.
1252.242-71 Contractor testimony.
1252.242-72 Dissemination of contract information.
1252.245-70 Government property reports.
Authority: Sec. 205(c) Federal Property and Administrative Services
Act, as amended (40 U.S.C. 468(c)). 48 CFR 1.301; 49 CFR 1.59.
Source: 52 FR 44557, Nov. 19, 1987, unless otherwise noted.
48 CFR 1252.000 Scope of part.
This part, in conjunction with FAR Part 52, contains the DOT
provisions and clauses whose use is prescribed elsewhere in this
regulation.
48 CFR 1252.000 Subpart 1252.1 -- Instructions for Using Provisions and Clauses
48 CFR 1252.101 Using FAR Part 52.
Administrations which prescribe or develop provisions or clauses
under the authority of FAR 52.101(b)(2)(i) (B) or (C) shall ensure that
the requirements of FAR Subpart 1.4 and Subpart 1201.4 are met.
1252.102 Incorporating provisions and clauses.
48 CFR 1252.102-2 Incorporation in full text.
All provisions and clauses prescribed or developed by administrations
shall be incorporated in solicitations and/or contracts in full text as
required by FAR 52.102-2(a)(4).
48 CFR 1252.104 Procedures for modifying and completing provisions and clauses.
48 CFR TAR provisions and clauses shall not be modified (see FAR 52.101(a)) unless authorized by this regulation, and when so authorized, contracting officers must comply with the procedures in FAR 52.104.
48 CFR 1252.104 Procedures for modifying and completing provisions and clauses
less authorized by this regulation, and when so authorized, contracting
officers must comply with the procedures in FAR 52104. 48 CFR Subpart
1252.2 -- Texts of Provisions and Clauses
TAR provisions and clauses shall not be modified (see FAR 52.101(a)) un
48 CFR 1252.207-70 Implementation of Right of First Refusal of
Employment.
As prescribed in 1207.305, and for any contract when contractor
performance causes Federal employees in the Government commercial
activity to be adversely affected, insert the following clause in
solicitations and contracts:
(a) Policy. The contractor shall give, and shall require each
subcontractor to give, adversely affected Federal employees the right of
first refusal for all employment openings under this contract for which
they are qualified. The contractor shall require the substance of this
clause to be included in each subcontract at every tier under this
contract, other than subcontracts for raw materials, commercial stock
items and subcontracts that do not exceed $25,000.
(b) Definitions: (1) An ''adversely affected Federal employee'' is
any Federal employee who is assigned to the Government commercial
activity, who is a competing employee under Office of Personnel
Management reduction-in-force regulations, and who is, as a result of
the award of this contract, released from his or her competitive level,
causing separation, reassignment, or downgrade.
(2) The term ''contractor'' as used in this clause shall include the
contractor and each subcontractor at every tier. The term
''subcontractor'' as used in this clause shall include any person or
firm which has a legal obligation to perform all or part of the work
under a subcontract at any tier under this contract, other than a
subcontract primarily for the supply of raw materials or commercial
stock items or a subcontract that does not exceed $25,000.
(3) The ''contract award date'' is the date the contract is signed by
the contracting officer.
(4) ''Employment opening'' is a position vacancy in the contractor's
organization, created by the award of this contract or any subcontract
under this contract, which the contractor is unable to fill with
personnel on the contractor's active payroll, as of the contract award
date, including any position within the local commuting area of the
commercial activity which arises in the contractor's organization as a
result of the contractor's reassignment of an employee due to the award
of this contract or of any subcontract under this contract.
(5) ''Working day'' means a day other than a Saturday, a Sunday or a
day on which either the Government's or the Contractor's office
administering this contract is officially closed for business.
(c) Filling employment openings. (1) For a period beginning with the
contract award date and ending (the contracting officer shall fill in
this blank with a number between 90 and 180) days after all adversely
affected Federal employees have been separated, reassigned, or
downgraded as a result of the award of this contract, no person other
than an adversely affected Federal employee, shall be offered a job
filling an employment opening until each qualified, adversely affected
Federal employee identified in the most current list provided to the
contractor under paragraph (e) of this clause has been offered the job
and either has refused it or has waived their right of first refusal.
(2) For a period beginning with the contract award date and ending
(the contracting officer shall fill in this blank with a number between
90 and 180) days after all adversely affected Federal employees have
been separated, reassigned or downgraded as the result of the award of
this contract, the contractor shall, in filling employment openings,
communicate written offers of employment to adversely affected Federal
employees identified in the most current list provided to the contractor
under paragraph (e) of this clause. Such offers shall specify at a
minimum the following:
(i) Title, description, and location of employment opening being
offered;
(ii) Pay and benefits (i.e., paid leave, holidays, health and life
insurance, retirement and any other benefits such as stock options that
would contribute to the total monetary value of the position);
(iii) Hours of work and leave schedule; and
(iv) Final date employee may accept job offer.
(3) At a minimum, adversely affected Federal employees shall be given
five working days, excluding mail time, after receipt of a job offer to
accept or reject the offer. At the contractor's request, the
contracting officer, after consulting with the agency personnel office,
shall determine whether any adversely affected employee has waived his
or her right of first refusal by not responding to a job offer in a
timely manner.
(4) If there are no qualified, available, adversely affected Federal
employees on the most current list provided by the contracting officer
or designee, the contractor may select for an employment opening any
person not disqualified by any provision of this contract.
(d) Contractor reporting requirements. (1) No later than five (5)
working days after the contract award date, the contractor shall provide
the contracting officer or designee with the following:
(i) A list of employment openings along with a brief description of
duties and qualification requirements for each position; and
(ii) Sufficient job application forms for adversely affected Federal
employees.
(2) For the period beginning with the contract award date and ending
(the contracting officer shall fill in this blank with a number between
90 and 180) days after all adversely affected Federal employees have
been separated, reassigned or downgraded as the result of the award of
this contract, the contractor shall inform the contracting officer or
designee by telephone within one (1) working day after an employment
offer is made to an adversely affected Federal employee. The contractor
shall also notify the contracting officer or designee by certified mail
no later than five (5) working days after each adversely affected
Federal employee's acceptance or refusal of the employment offer. This
notice shall contain the following information:
(i) The name and social security number of the adversely affected
Federal employee offered an employment opening;
(ii) The date the offer was made;
(iii) The salary and benefits contained in the offer (benefits as
defined in paragraph (c)(2)(ii) of this clause);
(iv) A brief description of the position;
(v) Either the date of acceptance of the offer and the effective date
of employment or the date of refusal of the offer; and
(vi) If not previously provided to the contracting officer or
designee, the names and social security numbers of any adversely
affected Federal employees who applied for, but were not offered,
employment in the position, and the reason(s) for not making an offer to
each of them.
(3) The contractor shall promptly inform the contracting officer or
designee of the name and social security number of each adversely
affected Federal employee hired by the contractor and any subcontractor
during the (the contracting officer shall fill in this blank with a
number between 90 and 180)-day period beginning with the day after the
date of the separation from Federal employment of the last of the
adversely affected Federal employees, and shall also inform the
contracting officer or designee of the date or dates of such hiring or
hirings.
(4) Upon receipt of the most current list of adversely affected
Government employees from the contracting officer or designee pursuant
to paragraph (e) of this clause, the contractor promptly shall provide,
or cause to be provided, a copy of the list to each subcontractor under
this contract.
(e) Information provided to the contractor. (1) On the contract
award date or thereafter, but no later than ten (10) working days after
the date of issuance of the initial reduction-in-force notices to
adversely affected Federal employees, the contracting officer or
designee shall provide the contractor with a current list of those
adversely affected Federal employees who wish to exercise their right of
first refusal.
(2) From time-to-time after issuance of the initial list pursuant to
paragraph (e)(1) of this clause, and until the last of the adversely
affected Federal employees have been separated from Federal employment,
the contracting officer or designee shall provide the contractor with an
updated version of the current list of adversely affected Federal
employees, reflecting those employees who have been recently released
from their competitive level and reassigned, downgraded or separated and
those who have indicated their unavailability for employment with the
contractor.
(3) On the contract award date or as soon thereafter as feasible, the
contracting officer or designee shall inform the contractor of the date
on which all adversely affected Federal employees will be separated,
reassigned or downgraded as a result of the award of this contract.
(f) Record of compliance. Upon request of the contracting officer or
designee, the contractor shall make available for examination by the
Government, all pertinent books, documents, papers and records required
to determine compliance with this clause.
(g) Qualifications determination. An adversely affected Federal
employee who held a job in the Government commercial activity, that
directly corresponds to or is not significantly different from an
employment opening under this contract or a subcontract under this
contract, shall be considered qualified to fill that employment opening,
unless the contractor adequately documents the employee's lack of
qualifications.
(h) Relation to other statutes, regulations and employment policies.
(1) The provisions of this clause do not modify or alter any of the
contractor's responsibilities and obligations under statutes,
regulations or other contract clauses concerning non-discrimination,
hiring and employment based on veteran's status, race, color, religion,
sex, age, handicap or national origin.
(2) The contractor shall be aware of the post-employment restrictions
prohibiting certain types of representations before, or communications
to, the Federal Government by former employees (18 U.S.C. 207).
(i) Penalty for noncompliance. Failure of the Contractor to comply
with any provision of this clause may be grounds for termination of the
contract for default.
(End of clause)
As prescribed in 1207.305, the following paragraph b(4) may be
substituted for paragraph b(4) of the clause:
(4) ''Employment opening is a position vacancy in the contractor's
organization, created by the award of this contract or any subcontract
under this contract, which the contractor is unable to fill with
personnel on the contractor's active payroll, as of the date of
submission of initial bids or proposals, including any position within
the local commuting area of the commerical activity which arises in the
contractor's organization as a result of the contractor's reassignment
of an employee due to the award of this contract or of any subcontract
under this contract.
(53 FR 28401, July 28, 1988, as amended at 53 FR 31007, Aug. 17,
1988)
48 CFR 1252.207-71 Financial and technical ability.
As prescribed in 1207.305, insert the following provision in A-76
solicitations:
a. If a bid submitted in response to this solicitation is favorably
considered, a two-part preaward survey may be conducted to determine the
bidder's ability to perform. Part one will be conducted by (Insert name
of office), who may contact you to determine your financial capability
to perform. Current financial statements and pertinent data should be
available at that time. Part two of the survey will be conducted at
(Name Location) shortly after bid opening by government personnel.
b. If a preaward survey is conducted, you will be requested to have
management officials, of the appropriate level, represent your firm. In
addition, your proposed project manager should be available to respond
to questions raised during the preaward survey. You should also be
prepared to present a briefing regarding the manner in which you intend
to accomplish your contractual obligations. As a minimum, you should
address the following items of information in your presentation (a
written copy of the presentation with the backup data below must be
submitted to the contracting officer 5 work days before the
presentation):
(1) Startup and phase-in schedule.
(2) Key personnel letters of intent and re1sume1s.
(3) Availability of labor force, plan for recruiting, type and extent
of training.
(4) The role of the project manager and the extent of his/her
authority.
(5) Organizational and functional charts reflecting line of
management responsibility.
(6) Manning charts in a format requested by the contracting officer
(only to be used to ensure that you understand the workload).
(7) Plans and management procedures for logistical administrative
support of all functions; that is, contractor furnished supplies and
equipment and procedures for timely payment of personnel.
(8) Procedures to be used to ensure contract requirements are met
(quality control program).
(9) Corporate experience, as evidenced by past and present contracts.
(10) Other purchases for which you have bid and for which you are
apparent low bidder.
48 CFR 1252.209-71 Disclosure of conflicts of interest.
As prescribed in 1209.508-1 and 1215.407 insert the following
provision in solicitations for negotiated acquisitions:
It is the Department of Transportation's (DOT's) policy not to award
contracts to offerors whose objectivity may be impaired because of any
related past, present, or planned interest, financial or otherwise, in
organizations regulated by DOT or in organizations whose interests may
be substantially affected by Departmental activities. Based on this
policy:
(a) The offeror shall provide a statement in its technical proposal
which describes in a concise manner all past, present or planned
organizational, financial, contractual or other interest(s) with an
organization regulated by DOT, or with an organization whose interests
may be substantially affected by Departmental activities, and which is
related to the work under the request. The interest(s) described shall
include those of the proposer, its affiliates, proposed consultants,
proposed subcontractors and key personnel of any of the above. Past
interest shall be limited to within one year of the date of the
offeror's technical proposal. Affected organizations shall include, but
are not limited to, the insurance industry. Key personnel shall include
any person owning more than 20% interest in the offeror, and the
offeror's corporate officers, its senior managers and any employee who
is responsible for making a decision or taking an action on this
contract where the decision or action can have an economic or other
impact on the interests of a regulated or affected organization.
(b) The offeror shall describe in detail why it believes, in light of
the interest(s) identified in (a) of this section, that performance of
the proposed contract can be accomplished in an impartial and objective
manner.
(c) In the absence of any relevant interest identified in paragraph
(a) of this provision, the offeror shall submit in its technical
proposal a statement certifying that to its best knowledge and belief no
affiliation exists relevant to possible conflicts of interest. The
offeror must obtain the same information from potential subcontractors
prior to award of a subcontract.
(d) The Contracting Officer will review the statement submitted and
may require additional relevant information from the offeror. All such
information, and any other relevant information known to DOT will be
used to determine whether an award to the offeror may create a conflict
of interest. If such conflict of interest is found to exist, the
Contracting Officer may (1) disqualify the offeror, or (2) determine
that it is otherwise in the best interest of the United States to
contract with the offeror and include appropriate provisions to mitigate
or avoid such conflict in the contract awarded.
(e) The refusal to provide the disclosure or representation, or any
additional information required, may result in disqualification of the
offeror for award. If nondisclosure or misrepresentation is discovered
after award, the resulting contract may be terminated. If after award
the Contractor discovers a conflict of interest with respect to this
contract which could not reasonably have been known prior to award, an
immediate and full disclosure shall be made in writing to the
Contracting Officer which shall include a description of the action the
contractor has taken or proposes to take to avoid or mitigate such
conflict. The DOT Contracting Officer may, however, terminate the
contract for convenience if it deems that termination is in the best
interest of the Government.
48 CFR 1252.210-70 Brand name or equal.
As prescribed in 1210.011-70 insert the following provision when a
''brand name or equal'' purchase description is used in the
solicitation:
(As used in this provision, the term ''brand name'' includes
identification of products by make and model.)
(a) If items called for by this solicitation have been identified in
the schedule by a ''brand name or equal'' description, such
identification is intended to be descriptive, but not restrictive, and
is intended to indicate the quality and characteristics of products that
will be satisfactory. Offers offering ''equal'' products (including
products of the brand name manufacturer other than the one described by
brand name) will be considered for award if such products are clearly
identified in the offers and are determined by the Government to meet
fully the salient characteristics requirements listed in the
solicitation.
(b) Unless the offeror clearly indicates in its offer that it is
offering an ''equal'' product, its offer shall be considered as offering
the brand name product referenced in the solicitation.
(c)(1) If the offeror proposed to furnish an ''equal'' product, the
brand name, if any, of the product to be furnished shall be inserted in
the space provided in the invitation for bids, or such product shall be
otherwise clearly identified in the offer. The evaluation of offers and
the determination as to equality of the product offered shall be the
responsibility of the Government and will be based on information
furnished by the offeror or identified in its offer as well as other
information reasonably available to the contracting office. CAUTION TO
OFFERORS: The contracting office is not responsible for locating or
securing any information which is not identified in the offer and
reasonably available to the contracting office. Accordingly, to insure
that sufficient information is available, the offeror must furnish as a
part of its offer all descriptive material (such as cuts, illustrations,
drawings, or other information) necessary for the contracting office to:
(i) Determine whether the product offered meets the salient
characteristics requirement of the solicitation, and (ii) establish
exactly what the offeror proposes to furnish and what the Government
would be binding itself to acquire by making an award. The information
furnished may include specific reference to information previously
furnished or to information otherwise available to the contracting
office.
(2) If the offeror proposes to modify a product so as to make it
conform to the requirements of the solicitation, it shall: (i) Include
in its offer a clear description of such proposed modifications, and
(ii) clearly mark any descriptive material to show the proposed
modifications.
(3) Modifications proposed after sealed bid opening to make a product
conform to a brand name product reference in the solicitation will not
be considered.
1252.212-70 (Reserved)
48 CFR 1252.212-71 Notice of delay.
As prescribed at 1212.7001, insert the following clause in all
contracts:
If the Contractor becomes unable to complete the contract work at the
time(s) specified because of technical difficulties, notwithstanding the
exercise of good faith and diligent efforts in the performance of the
work called for hereunder, the Contractor shall give the Contracting
Officer written notice of the anticipated delay and the reasons
therefor. Such notice and reasons shall be delivered promptly after the
condition creating the anticipated delay becomes known to the Contractor
but in no event less than forty-five (45) days before the completion
date specified in this contract, unless otherwise directed by the
Contracting Officer. When notice is so required, the Contracting
Officer may extend the time specified in the Schedule for such period as
deemed advisable.
48 CFR 1252.215-70 (Reserved)
48 CFR 1252.215-71 Key personnel and facilities.
As prescribed in 1215.106-70 insert the following clause in
appropriate contracts:
The personnel and/or facilities as specified in the Schedule of this
contract are considered essential to the work being performed hereunder.
Prior to removing, replacing, or diverting any of the specified
individuals or facilities, the Contractor shall notify the Contracting
Officer reasonably in advance and shall submit justification (including
proposed substitutions) in sufficient detail to permit evaluation of the
impact on this contract. No diversion shall be made by the Contractor
without the written consent of the Contracting Officer; provided, that
the Contracting Officer may ratify in writing the change and such
ratification shall constitute the consent of the Contracting Officer
required by this clause. The personnel and/or facilities as specified
in the Schedule of this contract may, with the consent of the
contracting parties, be amended from time to time during the course of
the contract to either add or delete personnel and/or facilities, as
appropriate.
48 CFR 1252.215-72 Cost proposal instructions.
As prescribed in 1215.407(b) a provision substantially as follows may
be inserted in RFPs when cost or pricing data are to be obtained:
Offerors are instructed to prepare their cost proposals in sufficient
detail to permit thorough and complete evaluation by the Government.
Where proposed rates are not based upon catalog or list prices, the
basis for the proposed rates shall be identified.
The cost proposal shall be submitted on Standard Form 1411, Contract
Pricing Proposal Cover Sheet, prepared in accordance with the
instructions in FAR 15.804-6. Summary data shall be placed on SF 1411
and the line item summaries (by element of cost) described in paragraph
7.A of FAR Table 15-3. The following format shall be followed in
preparing the supporting attachments referenced in column (4) of the
line item summaries. Clearly identify all subcontracted items and
include the name and address of the proposed subcontractor. Written
quotation for all subcontracted services must be included with the cost
proposal.
a. Purchased Parts: Provide a consolidated price summary of
individual material quantities for the proposed contract. Give details
on an attached schedule.
b. Subcontracted Items: Show the total cost of subcontract effort in
line b. below and provide supporting data for each subcontractor.
c. Other: (1) Raw Material: Show total cost on line c. (1) below
and give details on an attached schedule.
(2) Standard Commercial Items: Show total cost on line c. (2) below
and give details on an attached schedule.
Show cost here only if your accounting system provides for such cost
segregation and only if this cost is not computed as part of labor
overhead or G&A.
Material Overhead RateXXX% $ XXX base= XXX Reference XXX
Show the hourly rate and the total hours for each category of direct
labor proposed. Indicate whether actual rates or projected rates are
used.
Use the overhead rate(s) and base(s) approved by a Government audit
agency for use in proposals. If no such approval has been given, or if
the approval is more than 12 months old, furnish data supporting the
proposed rates. The data shall include a breakdown of the items
comprising overhead and the base(s) upon which the burden(s) is (are)
computed.
Identify specific equipment and unit prices or usage rates as shown
below. Equipment rates may be proposed on any basis (i.e., hourly,
daily, weekly, monthly).
Identify each trip proposed and the persons (or labor categories)
designated to make each trip. Identify transportation and per diem
rates.
(a) Transportation:
(b) Subsistence:
(c) Miscellaneous Travel Expenses (incl. car rental, taxis, airport
limos., etc):
Identify the contemplated consultant(s). State the amount of service
estimated to be required and the consultant's quoted daily or hourly
rate.
List all other direct charge costs not otherwise included in the
categories described above (e.g., services of specialized trades,
computer services, preservation, packaging and packing, leasing of
equipment) and provide bases for pricing.
9. General and administrative expenses.
Use the G&A rate and base approved by a Government audit agency for
use in proposals. If no such approval has been given, or if the
approval is more than 12 months old, furnish data supporting the
proposed rates. The data shall include a breakdown of the items
comprising G&A and the base(s) upon which the burden(s) is (are)
computed.
G&A Rate XXX% of Cost Element Nos. XXXReference XXX
10. Royalties $ XXXXX
11. Contract facilities capital cost of money $XXXXX
12. Profit or fee $XXXXX
(53 FR 44557, Nov. 19, 1987, as amended at 28402, July 28, 1988; 53
FR 31007, Aug. 17, 1988)
1252.216-70 (Reserved)
48 CFR 1252.216-71 Evaluation of proposals subject to economic price
adjustment.
As prescribed in 1216.203-471 insert the following provision in all
solicitations that contain an economic price adjustment clause:
Notwithstanding the requirements of the clause entitled ''(insert the
title of the clause for economic price adjustment)'', proposals shall be
evaluated on the basis of quoted prices without an amount for economic
price adjustment being added. Proposals which provide for a ceiling
lower than that stipulated, if a ceiling is stipulated in the clause,
will also be evaluated on this basis, but any resultant award will be
made at the lower ceiling. Proposals which provide for adjustment that
may exceed the maximum adjustment stipulated, if a maximum is stipulated
in the clause, or which limit or delete the downward adjustment, if a
downward adjustment is stipulated in the clause, shall be rejected as
nonresponsive.
48 CFR 1252.216-72 Estimated cost, base fee, and award fee.
As prescribed in 1216.404-270(b), insert the following clause in
solicitations and contracts when a cost plus award fee contract is
contemplated:
The estimated cost of this contract is $(insert amount). A base fee
of $(insert amount) and a maximum Award Fee of $(insert amount) are
payable in accordance with 1252.216-73 ''Payment of Base and Award
Fee.''
48 CFR 1252.216-73 Payment of base and award fee.
As prescribed in 1216.404-270(b), insert the following clause in
solicitiations and contracts when a cost plus award fee contract is
contemplated:
(a) The Government will make payment of the base fee in (insert
number) increments. The amount payable shall be based on the progress
as determined by the Contracting Officer and shall be subject to any
withholdings as may be provided for elsewhere in this contract.
(b) The Government will promptly make payment of any Award Fee upon
the submission by the Contractor to the Contracting Officer, or his
authorized representative, of a public voucher or invoice in the amount
of the total fee earned for the period evaluated as specified in the
clause 1252.216-74 ''Determination of Award Fee Earned''. Payment shall
be made without the need for a contract modification.
48 CFR 1252.216-74 Determination of award fee earned.
As prescribed in 1216.404-270(b), insert the following clause in
solicitations and contracts when a cost plus award fee contract is
contemplated.
(a) The Government shall, at the conclusion of each specified
evaluation period(s), evaluate the Contractor's performance for a
determination of award fee earned. The Contractor agrees that the
determination as to the amount of award fee earned will be made by the
Government Fee Determination Official (FDO) and such determination
concerning the amount of award fee earned is binding on both parties and
shall not be subject to appeal under the ''Disputes'' clause or to any
board or court.
(b) It is agreed that the evaluation of Contractor performance shall
be in accordance with the Performance Evaluation Plan referenced in the
clause entitled ''Performance Evaluation Plan'' and that the contractor
shall be promptly advised in writing of the determiniation and the
reasons why it was or was not earned. It is further agreed that the
Contractor may submit a self-evaluation of performance of each period
under consideration. While it is recognized that the basis for
determination of the fee shall be the evaluation by the Government, any
self-evaluation which is received within (insert number) days after the
end of the period being evaluated may be given such consideration, if
any, as the FDO shall find appropriate.
(c) The FDO may, in his/her discretion, specify in any fee
determination that fee not earned during the period evaluated may be
accumulated and be available for allocation to one or more subsequent
periods. In that event, the clause 1252.216-76 ''Distribution of Award
Fee'' shall be adjusted to reflect such allocations.
48 CFR 1252.216-75 Performance evaluation plan.
As prescribed in 1216.404-270(b), insert the following clause in
solicitations and contracts when a cost plus award fee contract is
contemplated:
(a) A Contractor Performance Evaluation Plan, upon which the
determination of award fee shall be based (including the criteria to be
considered under each area evaluated and the percentage of award fee, if
any, available for each area), will be unilaterally established by the
Government. A copy of the plan shall be provided to the Contractor
(insert number) calendar days prior to the start of the first evaluation
period.
(b) The Performance Evaluation Plan shall set forth the criteria upon
which the Contractor will be evaluated for perfomance relating to any:
(1) Technical (including Schedule) requirements if appropirate; (2)
Management; and (3) Cost Functions selected for evaluation.
(c) The Performance Evaluation Plan may, consistent with the
contract, be revised unilaterally by the Government at any time during
the period of performance. Notification of such changes shall be
provided to the Contractor (insert number) calendar days prior to the
start of the evaluation period to which the change will apply.
48 CFR 1252.216-76 Distribution of award fee.
As prescribed in 1216.404-270(b), insert the following clause in
solicitations and contracts when a cost plus award fee contract is
contemplated:
(a) The total amount of award fee available under this contract is
assigned to the following evaluation periods in the following amounts:
(b) Payment of the base fee and award fee shall be made, provided
that after payment of 85 percent of the base fee and potential award
fee, the Government may withhold further payment of the base fee and
award fee until a reserve is set aside in an amount that the Government
considers necessary to protect its interest. This reserve shall not
exceed 15 percent of the total base fee and potential award fee or
$100,000, whichever is less.
(c) In the event of contract termination, either in whole or in part,
the amount of award fee available shall represent a pro-rata
distribution associated with evaluation period activities or events as
determined by the Fee Determination Official.
48 CFR 1252.217-70 Index for specifications.
As prescribed at 1217.7001(c), insert the following clause in
solicitations and contracts:
If an index or table of contents is furnished in connection with
specifications, it is understood that such index or table of contents is
for convenience only. Its accuracy and completeness is not guaranteed,
and it is not to be considered as part of the specification. In case of
discrepancy between the index or table of contents and the
specifications, the specifications shall govern.
48 CFR 1252.217-71 Delivery and shifting of vessel.
As prescribed at 1217.7001(a) insert the following clause in
solicitations and contracts:
The Government shall deliver the vessel to the Contractor at his
place of business. Upon completion of the work the Government shall
accept delivery of the vessel at the Contractor's place of business.
The Contractor shall provide, at no additional charge, upon 24 hours'
advance notice, a tug or tugs and docking pilot, acceptable to the
contracting officer, to assist in handling the vessel between (to and
from) the Contractor's plant and the nearest point in a waterway
regularly navigated by vessels of equal or greater draft and length.
While the vessel is in the hands of the Contractor, any necessary
towage, cartage, or other transportation between ship and shop or
elsewhere, which may be incident to the work herein specified, shall be
furnished by the Contractor without additional charge to the Government.
48 CFR 1252.217-72 Performance.
As prescribed at 1217.7001(a) insert the following clause in
solicitations and contracts:
(a) The Contractor shall make the necessary arrangements for
receiving the vessel on the specified date, such arrangements to be
satisfactory to the contracting officer or his duly authorized
representative.
(b) The Contractor shall promptly commence the work required by the
contract and shall diligently prosecute same to completion to the
satisfaction of the contracting officer.
(c) Except as otherwise provided in this contract, the Contractor
shall furnish all necessary material, labor, services, equipment,
supplies, power, accessories, facilities and such other things and
services as are necessary for accomplishing the work specified in this
contract subject to the right reserved in the Government under the
''Government-furnished Property'' clause of the contract.
(d) The Contractor shall without charge and without specific
requirement therefor:
(1) Make available at the plant to personnel of the vessel, while in
drydock or on a marine railway, toilet and similar facilities acceptable
to the contracting officer as adequate in number and sanitary standards.
For vessels fitted with pollution abatement systems, provide for
disposal of shipboard waste (non-oily) by installing a portable hose
between the vessel's weather deck sewage overboard discharge connection
and either a shore-side holding facility, sewage treatment plant, or a
municipal sewage system. Directing of shipboard waste to waters covered
by the Federal Water Pollution Control Act, as amended, will not be
allowed. In freezing conditions the Contractor will provide protection
to the hook up system.
(2) Supply and maintain, in such condition as the contracting officer
may reasonably require, suitable brows and gangways from the pier,
drydock or marine railway to the vessel (access to vessel shall be
lighted by the Contractor during the periods of darkness).
(3) Treat salvage, scrap, or other ship's material of the Government
resulting from performance of work as though they were items of
Government-furnished property in accordance with provisions of the
''Government-Furnished Property'' clause of this contract.
(4) Perform, or pay the cost of, any repairs, reconditioning or
replacements necessary as a result of the use by the Contractor of any
of the vessel's machinery, equipment or fittings including, but not
limited to winches, pumps, rigging, or pipelines.
(e) The Contractor shall conduct dock and sea trials of the vessel as
required by the specifications. Unless otherwise expressly provided in
the contract, during the conduct of such trials the vessel shall be
under the control of the vessel's commander and crew with
representatives of the Contractor and the Government on board to
determine whether or not the work done by the Contractor has been
satisfactorily performed. Dock and sea trials not specified herein
which the Contractor requires for his own benefit shall not be
undertaken by the Contractor without prior notice to and approval of the
contracting officer; any such dock trials shall be conducted at the
risk and expense of the Contractor. The Contractor shall provide and
install all fittings and appliances which may be necessary for the dock
and sea trials, to enable the representatives of the Government to
determine whether the requirements of the contract, plans and
specifications have been met, and the Contractor shall be responsible
for the care, installation and removal of instruments and apparatus
furnished by the Government for such trials.
48 CFR 1252.217-73 Inspection and manner of doing work.
As prescribed at 1217.7001(a) insert the following clause in
solicitations and contracts:
(a) All work and material shall be subject to the approval of the
contracting officer or his/her duly authorized representative. Work
shall be performed in accordance with the plans and specifications of
this contract as modified by any change order issued under the
''Changes'' clause in this contract.
(b) Unless otherwise specifically provided for herein, all
operational practices of the Contractor and all workmanship and
material, equipment and articles used in the performance of work
thereunder shall be in accordance with Amerian Bureau of Shipping Rules
for Building and Classing Steel Vessels, U.S. Coast Guard Marine
Engineering Regulations and Material Specifications (Subchapter J, 46
CFR), U.S. Coast Guard Electrical Engineering Regulations (Subchapter J,
46 CFR), U.S. Coast Guard Navigation and Vessel Inspection Circular No.
4-60 (Part IV -- Notes on Repair), and U.S.P.H.S. Handbook on Sanitation
in Vessel Construction, in effect at the time of the Contractor's
submission of bid (or execution of the contract, if negotiated), and the
best commercial maritime practices, except when Navy specifications are
specified, in which case such standards of material and workmanship
shall be followed. Where the detailed specifications do not require a
Navy standard, or the requirements are not clearly or specifically
covered by one of the aforementioned standards, the contracting officer
or their designated representative shall prescribe a Navy or industrial
standard for the work wherever applicable, and the decision shall be
final:
Provided, however, That where the requirements of the representative
for development of detailed drawings, selection of materials and
equipment, standards of workmanship, which are not specifically required
in the specifications result in a change in unit price, total contract
price, quantity, or delivery schedule, the contracting officer will be
advised accordingly and the Contractor will not proceed with the work
until specifically directed to do so by the contracting officer.
(c) All material and workmanship shall be subject to inspection and
test at all times during the Contractor's performance of the work to
determine their quality, and suitability for the purpose intended and
compliance with the contract. In case any material or workmanship
furnished by the Contractor is found to be defective prior to redelivery
of the vessel, or not in accordance with the requirements of the
contract, the Government, in addition to its rights under any
''Guarantee'' clause which may be contained in this contract shall have
the right prior to redelivery of the vessel to reject such material or
workmanship, and to require its correction or replacement by the
Contractor at the Contractor's cost and expense. If the Contractor
fails to proceed promptly with the replacement or correction of such
material or workmanship, as required by the contracting officer, the
Government may, by contract or otherwise, replace or correct such
material or workmanship and charge to the Contractor the excess cost
occasioned the Government thereby. The Contractor shall provide and
maintain an inspection system acceptable to the Government covering the
work specified in the contract. Records of all inspection work by the
Contractor shall be kept complete and available to the Government during
the performance of the contract and for a period of sixty days after
completion of all work required by the contract.
(d) No welding, including welding and brazing, shall be permitted in
connection with repairs, completions, alterations, or additions to
hulls, machinery, or components of vessels, by a welder or procedure not
qualified in accordance with MIL-STD-248C. Procedure qualifications
tests shall be conducted in accordance with the requirements of
MIL-STD-248C.
(e) The Contractor shall exercise reasonable care to protect the
vessel from fire, and the Contractor shall maintain a reasonable system
of inspection over the activities of welders, burners, riveters,
painters, plumbers and similar workers, particularly where such
activities are undertaken in the vicinity of the vessel's magazine, fuel
oil tanks or storerooms containing flammable material. A reasonable
number of hose lines shall be maintained by the Contractor ready for
immediate use on the vessel at all times while the vessel is berthed
alongside the Contractor's pier or in drydock or on a marine railway.
All tanks under alteration or repair shall be cleaned, washed and
steamed out or otherwise made safe by the Contractor if and to the
extent necessary, and the contracting officer shall be furnished with
''gas-free'' or ''safe-for-hotwork'' certificate before any hotwork is
done on a tank. Unless otherwise provided in this contract, the
Contractor shall at all times maintain a reasonable fire watch about the
vessel, including a fire watch on the vessel while work is being
performed thereon.
(f) The Contractor shall place proper safeguard and/or effect such
safety precautions as necessary, including suitable and sufficient
lighting for the prevention of accidents or injury to persons or
property during the prosecution of work under this contract and/or from
time of receipt of the vessel until acceptance of work performed by the
Government.
(g) Except as otherwise provided in this contract, when the vessel is
in the custody of the Contractor or in drydock or on a marine railway
and the temperature becomes as low as 35 degrees Fahrenheit, the
Contractor shall keep all pipelines, fixtures, traps, tanks, and other
receptacles on or hooked up to the vessel drained to avoid damage from
freezing, or if this is not practical, the vessels shall be kept heated
to prevent such damage. It shall be the Contractor's responsibility to
insure adequate circulation in the fire main water supply to prevent
freezing of the water lines. The vessel's stern tube and propeller hubs
shall be protected from frost damage by applied heat through the use of
a salamander or other proper means.
(h) The work shall, whenever practicable, be performed in such manner
as not to interfere with the berthing and messing of civilian or
military personnel attached to the vessel, and provisions shall be made
so that personnel assigned shall have access to the vessel at all times,
it being understood that such personnel will not interfere with the work
or the Contractor's workmen. The Contractor shall provide messing and
sanitary facilities for its employees, subcontractors and agents
separate from the vessel.
(i) The Government does not guarantee the correctness of the
dimensions, sizes and shapes given in any sketches, drawings, plans or
specifications prepared or furnished by the Government. The Contractor
shall be responsible for the correctness of the shape, sizes and
dimensions of parts to be furnished hereunder, other than those
furnished by the Government.
(j) The Contractor shall at all times keep the site of the work on
the vessel free from accumulation of waste material or rubbish caused by
his employees or the work, and at the completion shall remove all
rubbish from and about the site of the work and shall leave the work in
its immediate vicinity ''broom clean'' unless more exactly specified in
this contract.
(k) Any question regarding or rising out of the interpretations of
plans and specifications of this contract or any discrepancies between
the plans and specifications shall be determined by the contracting
officer or his/her duly authorized representative; Provided, however,
that any interpretations or determinations by the authorized
representative which affect the price or delivery time specified in this
contract must be approved in writing by the contracting officer prior to
proceedings with the requirements of such interpretations or
determinations.
(l) While in drydock or on a marine railway, the commanding officer
of the vessel, if then in commission, shall be responsible for the
proper closing of openings to the ship's bottom upon which no work is
being done by the Contractor. The Contractor shall be responsible for
the closing, before the end of working hours, of all valves and openings
upon which work is being done by its workmen when such closing is
practicable. The Contractor shall keep the commanding officer cognizant
of the closure status of all valves and openings upon which the
Contractor's workmen have been working.
48 CFR 1252.217-74 Subcontracts.
As prescribed at 1217.7001(a) insert the following clause in
solicitations and contracts:
(a) Nothing contained in the contract shall be construed as creating
any contractual relationship between any subcontractor and the
Government. The divisions or sections of the specifications are not
intended to control the Contractor in dividing the work among
subcontractors or to limit the work performed by any trade.
(b) The Contractor shall be responsible to the Government for acts
and omissons of its own employees, and of subcontractors and their
employees. The Contractor shall also be responsible for the
coordination of the work of the trades, subcontractors, and material
men.
(c) The Contractor shall, without additional expense to the
Government, employ specialty subcontractors where required by the
specifications.
(d) The Government or its representatives will not undertake to
settle any differences between the Contractor and its subcontractors, or
between subcontractors.
48 CFR 1252.217-75 Lay days.
As prescribed at 1217.7001(a) insert the following clause in
solicitations and contracts:
(a) Lay day time will be paid by the Government at the Contractor's
stipulated bid price for this item of the contract when the vessel
remains on the dry dock or Marine Railway as a result of any change that
involves work in addition to that required under the basic contract.
(b) No cost for lay day time shall be paid until all accepted items
of the basic contract for which a price was established by the
Contractor and for which docking of the vessel was required have been
satisfactorily completed.
(c) Days of hauling out and floating, whatever the hour, shall not be
paid as lay day time, and days when no work is performed by the
Contractor shall not be paid as lay day time.
(d) Payment of lay day time shall constitute complete compensation
for all cost except for the direct cost of performing the changed work.
48 CFR 1252.217-76 Liability and insurance.
As prescribed at 1217.7001(a) insert the following clause in
solicitations and contracts:
(a) The Contractor shall exercise reasonable care and use his or her
best efforts to prevent accidents, injury or damage to all employees,
persons and property, in and about the work, and to the vessel or part
thereof upon which work is done.
(b) The Contractor shall not, unless otherwise directed or approved
in writing by the Contracting Officer, carry or incur the expense of any
insurance against any form of loss or damage to the vessels or to the
materials or equipment therefor to which the Government has title or
which have been furnished by the Government for installation by the
Contractor. The Government assumes the risks of loss of and damage to
the vessels and such materials and equipment. The Government does not
assume any risk with respect to loss or damage compensated for by
insurance or otherwise or resulting from risks with respect to which the
Contractor has failed to procure or maintain insurance, if available, as
required or approved by the Contracting Officer; Provided, further,
that under this clause the Government does not assume any risk with
respect to, and will not pay for any costs of the Contractor for the
inspection, repair, replacement, or renewal of any defects themselves in
the vessel(s) or such materials and equipment due to (1) defective
workmanship or defective materials or equipment performed by or
furnished by the Contractor or its subcontractors or, (2) workmanship or
materials or equipment performed by or furnished by the Contractor or
its subcontractors which do(es) not conform to the requirements of the
contract, whether or not any such defect is latent or whether or not any
such non-conformance is the result of negligence; Provided, further,
that under this clause the Government does not assume the risk of and
will not pay for the costs of any loss, damage, liability or expense
caused by, resulting from, or incurred as a consequence of delay or
disruption of any type whatsoever; or willful misconduct or lack of
good faith on the part of any of the Contractor's managers,
superintendents or other equivalent representatives who have supervision
or direction of (i) all or substantially all of the Contractor's
business or (ii) all or substantially all of the Contractor's operation
at any one plant;
Provided, however, That as to such risk assumed and borne by the
Government, the Government shall be subrogated to any claim, demand or
cause of action against third persons which exists in favor of the
Contractor, and the Contractor shall, if required, execute a formal
assignment or transfer of claims, demands or causes of action;
Provided, further, that nothing contained in this paragraph shall create
or give rise to any right, privilege or power in any person except the
Contractor, nor shall any person (except the Contractor) be or become
entitled thereby to proceed directly against the Government, or join the
Government as a codefendant in any action against the Contractor's
liability or for any other purpose. Notwithstanding the foregoing the
Contractor shall bear the first $5,000 of loss or damage from each
occurrence or incident the risk of which the Government otherwise would
have assumed under the provisions of this paragraph.
(c) The Contractor indemnifies and holds harmless the Government, its
agencies and instrumentalities, the vessel and its owners, against all
suits, actions, claims, costs or demands, (including, without
limitation, suits, actions, claims, costs or demands resulting from
death, personal injury, and property damage) to which the Government,
its agencies and instrumentalities, the vessel or its owner may be
subject or put by reason of damage or injury (including death) to the
property or person of any one other than the Government, its agencies,
instrumentalities and personnel, the vessel or its owner, arising or
resulting in whole or in part from the fault, negligence, wrongful act
or wrongful omission of the Contractor, or any subcontractor, his or
their servants, agents or employees; Provided, that the Contractor's
obligation to indemnify under this paragraph (c) shall not exceed the
sum of $300,000 on account of any one accident or occurrence in respect
of any one vessel. Such indemnity shall include, without limitation,
suits, actions, claims, costs or demands of any kind whatsoever,
resulting from death, personal injury or property damage occurring
during the period of performance of work on the vessel or within ninety
(90) days after redelivery of the vessel; and with respect to any such
suits, actions, claims, costs, or demands resulting from death, personal
injury or property damage occurring after the expiration of such period,
the rights and liabilities of the Government and the Contractor shall be
as determined by other provisions of this contract and by law;
Provided, however, that such indemnity shall apply to death occurring
after such period which results from any personal injury received during
the period covered by the Contractor's indemnity as provided herein.
(d) The Contractor shall, at his or her own expense, procure, and
thereafter maintain such casualty, accident and liability insurance, in
such forms and amounts as may be approved by the contracting officer,
insuring the performance of his obligations under paragraph (c) of this
clause. Further, the Contractor shall procure and maintain in force
Workmen's Compensation Insurance (or its equivalent) covering his
employees engaged on the work and shall insure the procurement and
maintenance of such insurance by all subcontractors engaged on the work.
The Contractor shall provide such evidence of such insurance as may be,
from time to time, required by the Government.
(e) No allowance shall be made to the Contractor in the contract
price for the inclusion of any premium expense or charge for any reserve
made on account of self insurance for coverage against any risk assumed
by the Government under this clause.
(f) As soon as practicable after the occurrence of any loss or damage
the risk of which the Government has assumed, written notice of such
loss or damage shall be given by the Contractor to the Contracting
Officer. This notice shall contain full particulars of such loss or
damage. If claim is made or suit is brought thereafter against the
Contractor as a result or because of such event, the Contractor shall
immediately deliver to the Government every demand, notice, summons or
other process received by him or his representatives. The Contractor
shall cooperate with the Government and, upon the Government's request,
shall assist in effecting settlements, securing and giving evidence,
obtaining the attendance of witnesses and in the conduct of suits; and
the Government shall pay to the Contractor the expense, other than the
cost of maintaining the Contractor's usual organization, incurred in so
doing. The Contractor shall not, except at its own cost, voluntarily
make any payment, assume any obligation, or incur any expense other than
shall be imperative for the protection of the vessel or vessels at the
time of said occurrence of such event.
(g) In the event of loss of or damage to any of the vessels or any of
the materials or equipment therefor which may result in a claim against
the Government under the insurance provisions of this contract, the
Contractor promptly shall notify the Contracting Officer of such loss or
damages, and the Contracting Officer may, without prejudice to any other
right of the Government, either:
(1) Order the Contractor to proceed with replacement or repair in
which event the Contractor shall effect such replacement or repair. The
Contractor shall submit to the Contracting Officer a request for
reimbursement of the cost of such replacement or repair together with
such supporting documentation as the Contracting Officer may reasonably
require, and shall identify such request as being submitted under the
''Insurance'' Clause of the contract. If the Government determines that
the risk of such loss or damages is within the scope of the risks
assumed by the Government under this clause, the Government will
reimburse the Contractor for the reasonable, allowable cost of such
replacement or repair, plus a reasonable profit (if the work of
replacement or repair was performed by the Contractor) less the
deductible amount specified in paragraph (b) of this clause. Payments
by the Government to the Contractor under this Insurance Clause are
outside the scope and shall not affect the pricing structure of the
contract (firm fixed-price or incentive-type arrangement, as
applicable), and are additional to the compensation otherwise payable to
the Contractor under this contract; or
(2) In the event the Contracting Officer decides that the loss or
damage shall not be replaced or repaired, (i) modify the contract
appropriately consistent with the reduced requirements reflected by the
unreplaced or unrepaired loss or damage, or (ii) terminate the repair of
any part or all of the vessel(s) under the clause of this contract
entitled ''Termination for Convenience of the Government.''
48 CFR 1252.217-77 Title.
As prescribed at 1217.7001(a) insert the following clause in
solicitations and contracts:
Unless title to materials and equipment acquired or produced for, or
allocated to, the performance of this contract shall have vested
previously in the Government by virtue of other provisions of this
contract, title to all materials and equipment to be incorporated in any
vessel or part thereof, or to be placed upon any vessel or part thereof
in accordance with the requirements of the contract, shall vest in the
Government upon delivery thereof at the plant or such other location as
may be specified in the Contract for the performance of the work:
Provided, however, that the provisions of this clause or other
provisions of this contract shall not be construed as relieving the
Contractor from the full responsibility for all such
Contractor-furnished materials and equipment or the restoration of any
damaged work or as a waiver of the right of the Government to require
the fulfillment of all the terms of this contract, it being expressly
understood and agreed that the Contractor shall assume without
limitation the risk of loss for any such materials and equipment until
such time as all work is completed and accepted by the Government and
the vessel is redelivered to the Government. Upon completion of the
contract, or with the approval of the contracting officer at any time
during the performance of the contract, all such Contractor-furnished
materials and equipment not incorporated in any vessel or part thereof
or not placed upon any vessel or part thereof, in accordance with the
requirements of the contract, shall become the property of the
Contractor, except those materials and equipment the cost of which has
been reimbursed by the Government to the Contractor.
48 CFR 1252.217-78 Discharge of liens.
As prescribed at 1217.7001(a) insert the following clause in
solicitations and contracts:
The Contractor shall immediately discharge or cause to be discharged
any lien or right in rem of any kind, other than in favor of the
Government, which at any time exists or arises in connection with work
done or materials furnished under this contract with respect to the
machinery, fittings, equipment or materials for any vessel. If any such
lien or right in rem is not immediately discharged, the Government may
discharge or cause to be discharged such lien or right at the expense of
the Contractor.
48 CFR 1252.217-79 Delays.
As prescribed at 1217.7001(a) insert the following clause in
solicitations and contracts:
When during the performance of this contract the Contractor is
required to delay work on a vessel temporarily, due to orders or actions
of the Government respecting stoppage of work to permit shifting the
vessel, stoppage of hot work to permit bunkering, stoppage of work due
to embarking or debarking passengers and loading or discharging cargo,
and the Contractor is not given sufficient advance notice or is
otherwise unable to avoid incurring addional costs on account thereof,
an equitable adjustment shall be made in the price of the contract
pursuant to the ''Changes'' clause.
48 CFR 1252.217-80 Department of Labor safety and health regulations for
ship repairing.
As prescribed at 1217.7001(a) insert the following clause in
solicitations and contracts:
Attention of the contractor is directed to Pub. L. 85-742, approved
August 23, 1958 (72 Stat. 835, 33 U.S.C. 941), amending section 41 of
the Longshoremen's and Harbor Worker's Compensation Act and to the
Safety and Health Regulations for Ship Repairing promulgated thereunder
by the Secretary of Labor (29 CFR Part 1501). These regulations apply
to all ship repair and related work, as defined in the regulations,
performed under this contract on the navigable waters of the United
States including any drydock or marine railway. Nothing contained in
this contract shall be construed as relieving the Contractor from any
obligations which it may have for compliance with the aforesaid
regulations.
48 CFR 1252.217-81 Guarantee.
As prescribed at 1217.7001(b), insert the following clause in
solicitations and contracts:
In case any work done or materials furnished by the Contractor under
this contract on or for any vessel or the equipment thereof shall,
within* days from date of delivery of the vessel by the Contractor,
prove defective or deficient, such defects or deficiencies shall, as
required by the Government, be corrected and repaired by the Contractor
at his or her expense to the satisfaction of the contracting officer:
Provided, however, that with respect to any individual work item
incomplete at the delivery of the vessel the guarantee period shall run
from the date of completion of such item. The Government shall, if and
when practicable, afford the Contractor an opportunity to effect such
corrections and repairs themself, but when, because of conditions or the
location of the vessel or for any other reason, it is impractical or
undesirable to return it to the Contractor, or the Contractor fails to
proceed promptly with any such repairs as directed by the contracting
officer, such corrections and repairs shall be effected at the
Contractor's expense at such other locations as the Government may
determine. Where corrections and repairs are to be effected by other
than the Contractor, due to nonreturn of the vessel to him or her, the
Contractor's liability may be discharged by an equitable deduction in
the price of the job. The Contractor's liability under this clause
shall, however, in no event extend beyond the correction of such defects
or deficiencies or payment for the cost thereof: Provided, however,
that nothing in this clause shall be deemed to limit or relieve the
Contractor of his or her responsibilities as set forth in the clause
entitled ''Liability and Insurance'' and the clause entitled
''Inspection'' of this contract. At the option of the contracting
officer, defects and deficiencies may be left in their then condition,
and an equitable deduction from the Contract price, as agreed by the
Contractor and contracting officer, shall be made therefor. If the
Contractor and contracting officer fail to agree upon the equitable
deduction from the contract price to be made, the dispute shall be
determined as provided in the ''Disputes'' clause of this contract.
*To be inserted by the contracting officer (see 1217.7001(b)).
48 CFR 1252.222-70 Service Contract Act of 1965 as amended, contracts of
$2,500 or less.
As prescribed in 1222.1070-2(a), insert the following clause in
solicitations and contracts:
Except to the extent that an exemption, variation, or tolerance would
apply under 29 CFR 4.6 if this contract were in excess of $2,500, the
Contractor and any subcontractor shall pay all employees working on the
contract not less than the minimum wage specified under section 6(a)(1)
of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 201
through 206). All regulations and interpretations of the Service
Contract Act of 1965 as amended, expressed in 29 CFR Part 4 are hereby
incorporated by reference in this contract.
(52 FR 44557, Nov. 19, 1987, as amended at 53 FR 28402, July 28,
1988; 53 FR 31007, Aug. 17, 1988)
48 CFR 1252.222-71 Strikes or picketing affecting timely completion of
the contract work.
As prescribed in 1222.101-71(a), insert the following clause in
solicitations and contracts:
Notwithstanding any other provision hereof, the Contractor is
responsible for delays arising out of labor disputes, including but not
limited to strikes, if such disputes are reasonably avoidable. A delay
caused by a strike or by picketing which constitutes an unfair labor
practice is not excusable unless the Contractor takes all reasonable and
appropriate action to end such a strike or picketing, such as the filing
of a charge with the National Labor Relations Board, the use of other
available Government procedures, and the use of private boards or
organizations for the settlement of disputes.
48 CFR 1252.222-72 Strikes or picketing affecting access to FAA
facility.
As prescribed in 1222.101-71(b), insert the following clause in
solicitations and contracts:
If the Contracting Officer notifies the Contractor in writing that a
strike or picketing: (1) Is directed at the Contractor or any
subcontractor or any employee of either, and (2) impedes or threatens to
impede access by any person to the DOT facility or facilities where the
site(s) of the work is (are) located, the Contractor shall take all
appropriate action to end such strike or picketing, including, if
necessary, the filing of a charge of unfair labor practice with the
National Labor Relations Board or the utilization or any other available
judicial or administrative remedies.
1252.222-73 -- 1252.222-74 (Reserved)
48 CFR 1252.222-75 Service Contract Act of 1965 as amended.
As prescribed in 1222.7002(b), insert the following clause in
solicitations and contracts:
This contract is subject to the Service Contract Act of 1965, as
amended (41 U.S.C. 351 et seq.) and is subject to the following
provisions and to all other applicable provisions of the Act and
regulations of the Secretary of Labor issued thereunder (29 CFR Part 4).
(a) Compensation. Each service employee employed in the performance
of this contract by the contractor or any subcontractor shall be paid
not less than the minimum monetary wages and shall be furnished fringe
benefits in accordance with the wages and fringe benefits determined by
the Secretary of Labor or authorized representative, as specified in any
wage determination attached to this contract.
(b) Conforming procedure. (1) If there is such a wage determination
attached to this contract, the contracting officer shall require that
any class of service employee which is not listed therein and which is
to be employed under the contract (i.e., the work to be performed is not
performed by any classification listed in the wage determination), be
classified by the contractor so as to provide a reasonable relationship
(i.e., appropriate level of skill comparison) between such unlisted
classifications and the classifications listed in the wage
determination. Such conformed class of employees shall be paid the
monetary wages and furnished the fringe benefits as are determined
pursuant to the procedures in this section. (The information collection
requirements contained in the following paragraphs of this clause have
been approved by the Office of Management and Budget under OMB control
number 1215 -- 0150.)
(2) Such conforming procedure shall be initiated by the contractor
prior to the performance of contract work by such unlisted class of
employee. A written report of the proposed conforming action, including
information regarding the agreement or disagreement of the authorized
representative of the employees involved or, where there is no
authorized representative, the employees themselves, shall be submitted
by the contractor to the contracting officer no later than 30 days after
such unlisted class of employees performs any contract work. The
contracting officer shall review the proposed action and promptly submit
a report of the action, together with the agency's recommendation and
all pertinent information including the position of the contractor and
the employees, to the Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, for review. The Wage and Hour
Division will approve, modify, or disapprove the action or render a
final determinaion in the event of disagreement within 30 days of
receipt or will notify the contracting officer within 30 days of receipt
that additional time is necessary.
(3) The final determination of the conformance action by the Wage and
Hour Division shall be transmitted to the contracting officer who shall
promptly notify the contractor of the action taken. Each affected
employee shall be furnished by the contractor with a written copy of
such determination or it shall be posted as a part of the wage
determination.
(4)(i) The process of establishing wage and fringe benefit rates that
bear a reasonable relationship to those listed in a wage determination
cannot be reduced to any single formula. The approach used may vary
from wage determination to wage determination depending on the
circumstances. Standard wage and salary administration practices which
rank various job classifications by pay grade pursuant to point schemes
or other job factors may, for example, be relied upon. Guidance may
also be obtained from the way different jobs are rated under Federal pay
systems (Federal Wage Board Pay System and the General Schedule) or from
wage determinations issued in the same locality. Basic to the
establishment of any conformable wage rate(s) is the concept that a pay
relationship should be maintained between job classification based on
the skill required and the duties performed.
(ii) In the case of a contract modification, an exercise of an option
or extension of an existing contract, or in any other case where a
contractor succeeds a contract under which the classification in
question was previously conformed pursuant to this clause, a new
conformed wage rate and fringe benefits may be assigned to such
conformed classification by indexing (i.e., adjusting) the previous
conformed rate and fringe benefits by an amount equal to the average
(mean) percentage increase (or decrease, where appropriate) between the
wages and fringe benefits specified for all classifications to be used
on the contract which are listed in the current wage determination, and
those specified for the corresponding classifications in the previously
applicable wage determination. Where conforming actions are
accomplished in accordance with this paragraph prior to the performance
of contract work by the unlisted class of employees, the contractor
shall advise the contracting officer of the action taken but the other
procedures in paragraph (b)(2) of this clause need not be followed.
(iii) No employee engaged in performing work on this contract shall
in any event be paid less than the currently applicable minimum wage
specified under section 6(a)(1) of the Fair Labor Standards Act of 1938,
as amended.
(5) The wage rate and fringe benefits finally determined pursuant to
paragraphs (b)(1) and (2) of this clause shall be paid to all employees
performing in the classification from the first day on which contract
work is performed by them in the classification. Failure to pay such
unlisted employees the compensation agreed upon by the interested
parties and/or finally determined by the Wage and Hour Division
retroactive to the date such class of employees commenced contract work
shall be a violation of the Act and this contract.
(6) Upon discovery of failure to comply with paragraphs (b)(1)
through (5) of this clause, the Wage and Hour Division shall make a
final determination of conformed classification, wage rate, and/or
fringe benefits which shall be retroactive to the date such class of
employees commenced contract work.
(c) Adjustment. If, as authorized pursuant to section 4(d) of the
Service Contract Act of 1965 as amended, the term of this contract is
more than 1 year, the minimum monetary wages and fringe benefits
required to be paid or furnished thereunder to service employees shall
be subject to adjustment after 1 year and not less often than once every
2 years, pursuant to wage determinations to be issued by the Wage and
Hour Division, Employment Standards Administration of the Department of
Labor as provided in such Act.
(d) Obligation to furnish fringe benefits. The contractor or
subcontractor may discharge the obligation to furnish fringe benefits
specified in the attachment or determined conformably thereto by
furnishing any equivalent combinations of bona fide fringe benefits, or
by making equivalent or differential payments in cash in accordance with
the applicable rules set forth in Subpart D of 29 CFR Part 4, and not
otherwise.
(e) Minimum wage. In the absence of a minimum wage attachment for
this contract, neither the contractor nor any subcontractor under this
contract shall pay any person performing work under the contract
(regardless of whether they are service employees) less than the minimum
wage specified by section 6(a)(1) of the Fair Labor Standards Act of
1938. Nothing in this provision shall relieve the contractor or any
subcontractor of any other obligation under law or contract for the
payment of a higher wage to any employee.
(f) Obligations attributable to predecessor contracts. If this
contract exceeds a contract subject to the Service Contract Act of 1965
as amended, under which substantially the same services were furnished
in the same locality and service employees were paid wages and fringe
benefits provided for in a collective bargaining agreement, in the
absence of a minimum wage attachment for this contract setting forth
such collectively bargaining wage rates and fringe benefits, neither the
contractor nor any subcontractor under this contract shall pay any
service employee performing any of the contract work (regardless of
whether or not such employee was employed under the predecessor
contract), less than the wages and fringe benefits provided for in such
collective bargaining agreement, to which such employee would have been
entitled if employed under the predecessor contract, including accrued
wages and fringe benefits and any prospective increases in wages and
fringe benefits provided for under such agreement. No contractor or
subcontractor under this contract may be relieved of the foregoing
obligation unless the limitations of 4.1(b) of 29 CFR Part 4 apply or
unless the Secretary of Labor or his authorized representative finds,
after a hearing as provided in 4.10 of 29 CFR Part 4, that the wages
and/or fringe benefits provided for in such agreement are substantially
at variance with those which prevail for services of a character similar
in the locality, or determines, as provided in 4.11 of 29 CFR Part 4,
that the collective bargaining agreement applicable to service employees
employed under the predecessor contract was not entered into as a result
of arm's-length negotiations. Where it is found in accordance with the
review procedures provided in 29 CFR 4.10 and/or 4.11 and Parts 6 and 8
that some or all of the wages and/or fringe benefits contained in a
predecessor contractor's collective bargaining agreement are
substantially at variance with those which prevail for services of a
character similar in the locality, and/or that the collective bargaining
agreement applicable to service employees employed under the predecessor
contract was not entered into as a result of arm's-length negotiations,
the Department will issue a new or revised wage determination setting
forth the applicable wage rates and fringe benefits. Such determination
shall be made part of the contract or subcontract, in accordance with
the decision of the Administrator, the Administrative Law Judge, or the
Board of Service Contract Appeals, as the case may be, irrespective of
whether such issuance occurs prior to or after the award of a contract
or subcontract. 53 Comp. Gen. 401 (1973). In the case of a wage
determination issued solely as a result of a finding of substantial
variance, such determination shall be effective as of the date of the
final administrative decision.
(g) Notification to employees. The contractor and any subcontractor
under this contract shall notify each service employee commencing work
on this contract of the minimum monetary wage and any fringe benefits
required to be paid pursuant to this contract, or shall post the wage
determination attached to this contract. The poster provided by the
Department of Labor (Publication WH 1313) shall be posted in a prominent
and accessible place at the worksite. Failure to comply with this
requirement is a violation of section 2(a)(4) of the Act and of this
contract. (Approved by the Office of Management and Budget under OMB
control number 1215-0150)
(h) Safe and sanitary working conditions. The contractor or
subcontractor shall not permit any part of the services called for by
this contract to be performed in buildings or surroundings or under
working conditions provided by or under the control or supervision of
the contractor or subcontractor which are unsanitary or hazardous or
dangerous to the health or safety of service employees engaged to
furnish these services, and the contractor or subcontractor shall comply
with the safety and health standards applied under 29 CFR Part 1925.
(i) Records. (1) The contractor and each subcontractor performing
work subject to the Act shall make and maintain for 3 years from the
completion of the work, records containing the information specified in
the following paragraphs (i)(1) (i) through (vi) of this clause for each
employee subject to the Act and shall make them available for inspection
and transcription by authorized representatives of the Wage and Hour
Division, Employment Standards Administration of the U.S. Department of
Labor. (Items (i)(1) (i) through (iv) approved by the Office of
Management and Budget under OMB control number 1215-0017 and items
(i)(1) (v) and (vi) approved under OMB control number 1215-0150):
(i) Name and address and social security number of each employee.
(ii) The correct work classification or classifications, rate or
rates of monetary wages paid and fringe benefits provided, rate or rates
of fringe benefits payments in lieu thereof, and total daily and weekly
compensation of each employee.
(iii) The number of daily and weekly hours so worked by each
employee.
(iv) Any deductions, rebates, or refunds from the total daily or
weekly compensation of each employee.
(v) A list of monetary wages and fringe benefits for those classes of
service employees not included in the wage determination attached to
this contract but for which such wage rates or fringe benefits have been
determined by the interested parties or by the Administrator or
authorized representative pursuant to paragraph (b) of this clause. A
copy of the report required by paragraph (b)(2) of this clause shall be
deemed to be such a list.
(vi) Any list of the predecessor contractor's employees which had
been funished to the contractor pursuant to paragraph (q) of this
clause.
(2) The contractor shall also make available a copy of this contract
for inspection or transcription by authorized representatives of the
Wage and Hour Division.
(3) Failure to make and maintain or make available such records for
inspection and transcription shall be a violation of the regulations and
this contract, and in the case of failure to produce such records, the
contracting officer, upon direction of the Department of Labor and
notification of the contractor, shall take action to cause suspension of
any further payment or advance of funds until such violation ceases.
(j) Interviews with employees. The contractor shall permit
authorized representatives of the Wage and Hour Division to conduct
interviews with employees at the worksite during normal working hours.
(k) Timing of payments. The contractor shall unconditionally pay to
each employee subject to the Act all wages due free and clear and
without subsequent deduction (except as otherwise provided by law or
Regulations. 29 CFR Part 4), rebate, or kickback on any account. Such
payments shall be made no later than one pay period following the end of
the regular pay period in which such wages were earned or accrued. A
pay period under this Act may not be of any duration longer than
semi-monthly.
(l) Withholding of payment and termination of contract. The
contracting officer shall withhold or cause to be withheld from the
Government prime contractor under this or any other Government contract
with the prime contractor such sums as an appropriate official of the
Department of Labor requests, or such sums as the contracting officer
decides may be necessary, to pay underpaid employees employed by the
contractor or subcontractor. In the event of failure to pay any
employees subject to the Act all or part of the wages or fringe benefits
due under the Act, the agency may, after authorization or by direction
of the Department of Labor and written notification to the contractor,
take action to cause suspension of any further payment or advance of
funds until such violations have ceased. Additionally, any failure to
comply with the requirements of this clause relating to the Service
Contract Act of 1965 may be grounds for termination of the right to
proceed with the contract work. In such event, the Government may enter
into other contracts or arrangements for completion of the work,
charging the contractor in default with any additional cost.
(m) Subcontracts. The contractor agrees to insert this clause
relating to the Service Contract Act of 1965 in all subcontracts subject
to the Act. The term ''contractor'' as used in this clause in any
subcontract is deemed to refer to the subcontractor, except in the term
''Government prime contractor.''
(n) Service employees. As used in this clause, the term ''service
employee'' means any person engaged in the performance of this contract
other than any person employed in a bona fide executive, administrative,
or professional capacity, as those terms are defined in Part 541 of
Title 29, Code of Federal Regulations, as of July 30, 1976, and any
subsequent revision of those regulations. The term ''service employee''
includes all such persons regardless of any contractual relationship
that may be alleged to exist between a contractor or subcontractor and
such persons.
(o) Civil Service rates. The following statement is included in
contracts pursuant to section 2(a)(5) of the Act and is for
informational purposes only: The following classes of service employees
expected to be employed under the contract with the Government would be
subject, if employed by the contracting agency, to the provisions of 5
U.S.C. 5341 or 5 U.S.C. 5332 and would, if so employed, be paid not less
than the following rates of wages and fringe benefits.
Annual Leave: Two hours per week for service of less than three
years; three hours per week for service of three years but less than 15
years; and 4 hours per week for service of 15 years or more.
Paid Holidays: Ten per year.
Government's contribution to sick leave and to life, accident, and
health insurance: 5.1 percent of basic hourly rate.
Government's contribution to retirement pay: 7 percent of basic
hourly rate.
Note: The wage rates and fringe benefits listed in this clause are
included in the contract as required by section 2(a)(5) of the Service
Contract Act of 1965, as amended, and are not minimum wage rates and
fringe benefits required to be paid on this contract.
(p) Contractor report on collective bargaining agreement. If wages
to be paid or fringe benefits to be furnished any service employees
employed by the Government prime contractor or any subcontractor under
the contract are provided for in a collective bargaining agreement which
is or will be effective during any period in which the contract is being
performed, the Government prime contractor shall report such fact to the
contracting officer, together with full information as to the
application and accrual of such wages and fringe benefits, including any
prospective increases, to service employees engaged in work on the
contract, and a copy of the collective bargaining agreement. Such
report shall be made upon commencing performance of the contract, in the
case of collective bargaining agreements effective at such time, and in
the case of such agreements or provisions of amendments thereof
effective at a later time during the period of contract performance,
such agreements shall be reported promptly after negotiation thereof.
(Approved by the Office of Management and budget under OMB control
number 1215-0150)
(q) Contractor list of employee names. Not less than 10 days prior
to completion of any contract being performed at a Federal facility
where service employees may be retained in the performance of the
succeeding contract and subject to a wage determination which contains
vacation or other benefit provisions based upon length of service with a
contractor (predecessor) or successor ( 4.173 of Regulations, 29 CFR
Part 4), the incumbent prime contractor shall furnish to the contracting
officer a certified list of the names of all service employees on the
contractor's or subcontractor's payroll during the last month of
contract performance. Such list shall also contain anniversary dates of
employment on the contract either with the current or predecessor
contractors of each such service employee. The contracting officer
shall turn over such list to the successor contractor at the
commencement of the succeeding contract. (Approved by the Office of
Management and Budget under OMB control number 1215-0150)
(r) Rulings and interpretations. Rulings and interpretations of the
Service Contract Act of 1965, as amended, are contained in Regulations,
29 CFR Part 4.
(s) Ineligible contractors and subcontractors. (1) By entering into
this contract, the contractor (and officials thereof) certifies that
neither it (nor he or she) nor any person or firm who has a substantial
interest in the contractor's firm is a person or firm ineligible to be
awarded Government contracts by virtue of the sanctions imposed pursuant
to section 5 of the Act.
(2) No part of this contract shall be subcontracted to any person or
firm ineligible for award of a Government contract purusant to section 5
of the Act.
(t) Penalty for false statements. The penalty for making false
statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001.
(u) Special employees. Notwithstanding any of the provisions in
paragraphs (a) through (r) of this clause relating to the Service
Contract Act of 1965, the following employees may be employed in
acordance with the following variations, tolerances, and exemptions,
which the Secretary of labor, pursuant to section 4(b) of the Act prior
to its amendment by Pub. L. 92-473, found to be necessary and proper in
the public interest or to avoid serious impairment of the conduct of
Government business:
(1) Apprentices, student-learners, and workers whose earning capacity
is impaired by age, physical, or mental deficiency or injury may be
employed at wages lower than the minimum wages otherwise required by
section 2(a)(1) or 2(b)(1) of the Service Contract Act without
diminishing any fringe benefits or cash payments in lieu thereof
required under section 2(a)(2) of that Act, in accordance with the
conditions and procedures prescribed for the employment of apprentices,
student-learners, handicapped persons, and handicapped clients of
sheltered workshops under section 14 of the Fair Labor Standards Act of
1938, in the regulations issued by the Administrator (29 CFR Parts 520,
521, 524, and 525).
(2) The Administrator will issue certificates under the Service
Contract Act for the employment of apprentices, student-learners,
handicapped persons, or handicapped clients of sheltered workshops not
subject to the Fair Labor Standards Act of 1938, or subject to different
minimum rates of pay under the two acts, authorizing appropriate rates
of minimum wages (but without changing requirements concerning fringe
benefits or supplementary cash payments in lieu thereof), applying
procedures prescribed by the applicable regulations issued under the
Fair Labor Standards Act of 1938 (29 CFR Parts 520, 521, 524, and 525).
(3) The Administrator will also withdraw, annul, or cancel such
certificates in accordance with the regulations in Parts 525 and 528 of
Title 29 of the Code of Federal Regulations.
(v) Apprentices. Apprentices will be permitted to work at less than
the predetermined rate for the work they perform when they are employed
and individually registered in a bona fide apprenticeship program
registered with a State Apprenticeship Agency which is recognized by the
U.S. Department of Labor, or if no such recognized agency exists in a
State, under a program registered with the Bureau of Apprenticeship and
Training, Employment and Training Administration, U.S. Department of
Labor. Any employee who is not registered as an apprentice in an
approved program shall be paid the wage rate and fringe benefits
contained in the applicable wage determination for the journeyman
classification of work actually performed. The wage rates paid
apprentices shall not be less than the wage rate for their level of
progress set forth in the registered program, expressed as the
appropriate percentage of the journeyman's rate contained in the
applicable wage determination. The allowable ratio of apprentices to
journeymen employed on the contract work in any craft classification
shall not be greater than the ratio permitted to the contractor as to
his entire workforce under the registered program.
(w) Tip credit. An employee engaged in an occupation in which he or
she customarily and regularly receives more than $30 a month in tips may
have the amount of tips credited by the employer against the minimum
wage required by section 2(a)(1) or section 2(b)(1) of the Act in
accordance with section 3(m) of the Fair Labor Standards Act and
Regulations, 29 CFR Part 531: Provided, however, that the amount of
such credit may not exceed $1.24 per hour beginning January 1, 1980, and
$1.34 per hour after December 31, 1980. To utilize this proviso:
(1) The employer must inform tipped employees about this tip credit
allowance before the credit is utilized;
(2) The employees must be allowed to retain all tips (individually or
through a pooling arrangement and regardless of whether the employer
elects to take a credit for tips received);
(3) The employer must be able to show by records that the employee
receives at least the applicable Service Contract Act minimum wage
through the combination of direct wages and tip credit (approved by the
Office of Management and Budget under OMB control number 1215-0017);
(4) The use of such tip credit must have been permitted under any
predecessor collective-bargaining agreement applicable by virtue of
section 4(c) of the Act.
(x) Disputes concerning labor standards. Disputes arising out of the
labor standards provisions of this contract shall not be subject to the
general disputes clause of this contract. Such disputes shall be
resolved in accordance with the procedures of the Department of Labor
set forth in 29 CFR Parts 4, 6, and 8. Disputes within the meaning of
this clause include disputes between the contractor (or any of its
subcontractors) and the contracting agency, the U.S. Department of
Labor, or the employees or their representatives.
(52 FR 44557, Nov. 19, 1987, as amended at 53 FR 28402, July 28,
1988; 53 FR 31007, Aug. 17, 1988)
1252.222-76 (Reserved)
48 CFR 1252.222-77 Fair Labor Standards Act and Service Contract Act --
Price adjustment (multiyear and option contracts).
As prescribed in 1222.7002(b), insert the following clause in
solicitations and contracts:
(a) The Contractor warrants that the prices in this contract do not
include any allowance for any contigency to cover increased costs for
which adjustment is provided under this clause.
(b) The minimum prevailing wage determination, including fringe
benefits, issued under the Service Contract Act of 1965 (41 U.S.C. 351
through 358), by the Administrator, Wage and Hour Division, Employment
Standards Administration, U.S. Department of Labor, current at the
beginning of each renewal option period, shall apply to any renewal of
this contract. When no such determination has been made applicable to
this contract, then the current Federal minimum wage as established by
section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206)
shall apply to any renewal of this contract.
(c) The contract price or contract unit price labor rates will be
adjusted to reflect increases or decreases by the Contractor in wages or
fringe benefits of employees working on this contract to comply with --
(1) The Department of Labor determination of minimum prevailing wages
and fringe benefits applicable at the beginning of the renewal option
period;
(2) An increased or decreased wage determination otherwise applied to
the contract by operation of law; or
(3) An amendment to the Fair Labor Standards Act of 1938 that is
enacted subsequent to award of this contract, affects the minimum wage,
and becomes applicable to this contract under law.
(d) Any such adjustment will be limited to increases or decreases in
wages or fringe benefits as described in paragraph (c) of this clause,
and to the concomitant increases or decreases in social security and
unemployment taxes and worker's compensation insurance; it shall not
otherwise include any amount for general and administrative costs,
overhead, or profits.
(e) The Contractor shall notify the Contracting Officer of any
increase claimed under this clause within 30 days after the effective
date of the wage change, unless this period is extended by the
Contracting Officer in writing. The Contractor shall promptly notify
the Contracting Officer of any decrease under this clause, but nothing
in the clause shall preclude the Government from asserting a claim
within the period permitted by law. The notice shall contain a
statement of the amount claimed and any relevant supporting data that
the Contracting Officer may reasonably require. Upon agreement of the
parties, the contract price or contract unit price labor rates shall be
modified in writing. The Contractor shall continue performance pending
agreement on or determination of any such adjustment and its effective
date.
(f) The Contracting Officer or an authorized representative shall,
until the expiration of 3 years after final payment under the contract,
have access to and the right to examine any directly pertinent books,
documents, papers, and records of the Contractor.
48 CFR 1252.222-78 Fair Labor Standards Act and Service Contract Act --
price adjustment.
As prescribed in 1222.7002-2(b), insert the following clause in
solicitations and contracts:
Adjustment (Jan 1985)
(a) The Contractor warrants that the prices in this contract do not
include any allowance for any contingency to cover increased costs for
which adjustment is provided under this clause.
(b) The contract price or contract unit price labor rates will be
adjusted to reflect increases or decreases by the Contractor in wages or
fringe benefits of employees working on this contract to comply with --
(1) An increased or decreased wage determination applied to this
contract by operation of law; or
(2) An amendment to the Fair Labor Standards Act of 1938 that is
enacted subsequent to award of this contract, affects the minimum wage,
and becomes applicable to this contract under law.
(c) Any such adjustment will be limited to increases or decreases in
wages or fringe benefits as described in paragraph (b) of this clause,
and to the concomitant increases or decreases in social security and
unemployment taxes and workers' compensation insurance; it shall not
otherwise include any amount for general and administrative costs,
overhead, or profits.
(d) The Contractor shall notify the Contracting Officer of any
increase claimed under this clause within 30 days after the effective
date of the wage change, unless this period is extended by the
Contracting Officer in writing. The Contractor shall promptly notify
the Contracting Officer of any decrease under this clause, but nothing
in the clause shall preclude the Government from asserting a claim
within the period permitted by law. The notice shall contain a
statement of the amount claimed and any relevant supporting data that
the Contracting Officer may reasonably require. Upon agreement of the
parties, the contract price or contract unit price labor rates shall be
modified in writing. The Contractor shall continue performance pending
agreement on or determination of any such adjustment and its effective
date.
(e) The Contracting Officer or an authorized representative shall,
until the expiration of 3 years after final payment under the contract,
have access to and the right to examine any directly pertinent books,
documents, papers, and records of the Contractor.
48 CFR 1252.222-79 Service Contract Act requirements as to vacation pay.
As prescribed in 1222.7002(b), insert the following clause in
solicitations and contracts:
(a) Employee Credit for Service with a Predecessor Contractor. This
paragraph (a) applies if the contract wage determination contains a
provision referring to a ''successor'' contractor, as, e.g., ''1 week
paid vacation after 1 year of service with a contractor or successor.''
''Successor'' as used in such provision means the Contractor on this
contract when the Contractor employs, without a break in service, a
service employee formerly employed by the immediately preceding
contractor under a similar Government contract at the same location
(''predecessor contractor''). Consequently, if the Contractor employs
without a break in service, any service employee who was employed by its
predecessor contractor for similar work at the same location, the
Contractor in computing the employee's ''year of service'' shall include
all continuous service for the predecessor contractor subsequent to the
later of the following dates: (1) The date of employment by the
predecessor contractor; or (2) if, while employed by the predecessor
contractor, the employee had an anniversary date or dates on which the
employee became entitled to vacation benefits, the most recent of such
anniversary dates. Thus, the Contractor is liable for such employee's
full vacation benefit on such anniversary date even though during part
of the ''year of service'' the employee had been employed by the
predecessor contractor.
(b) When Predecessor Contractor Not Involved. This paragraph (b)
applies if the contract wage determination does not refer to a
''successor'' contractor, but contains a provision such as ''1 week paid
vacation after 1 year of service with an employer.'' The term ''an
employer'' in such provision means the Contractor on this contract. The
Contractor in computing a service employee's ''year of service'' shall
include all continuous service performed by the employee subsequent to
the later of the following dates: (1) The date of employment by the
Contractor, or (2) the employee's most recent anniversary date for which
a paid vacation was granted.
(c) Part-time Employees. If the contract wage determination contains
either type of provision quoted in paragraph (a) or (b) of this clause,
part-time service employees working a regularly scheduled work week
shall receive a paid vacation on a pro-rata basis. For example, an
employee who has worked for the Contractor two days per week for a year
(or, without a break in service, for the Contractor and a predecessor
contractor where the wage determination contains language like that
quoted in paragraph (a) of this clause) shall be entitled to two days
paid vacation or two-fifths of the vacation benefits to which full-time
employees are entitled.
(d) Break in Service. For purposes of this provision, the term
''break in service'' does not include an employee's change in employment
status from an employee of a predecessor contractor to an employee of
the Contractor.
1252.223-70 (Reserved)
48 CFR 1252.223-71 Accident and fire reporting.
As prescribed in 1223.7001(a) insert the following clause in
solicitations and contracts:
(a) The Contractor shall report to the Contracting Officer any
accident or fire occurring at the site of the work which causes:
(1) A fatality or as much as one lost workday on the part of any
employee of the Contractor or any subcontractor at any tier;
(2) Damage of $1,000 or more to Federal property either real or
personal;
(3) Damage to Contractor or subcontractor owned or leased motor
vehicles or mobile equipment;
(4) Damage for which a contract time extension may be requested.
(b) Accident and fire reports required by paragraph (a) of this
clause, shall be accomplished by the following means:
(1) Accidents or fires resulting in a death, hospitalization of five
or more persons, or destruction of Federal property (either real or
personal) the total value of which is estimated at $100,000 or more,
shall be reported immediately by telephone to the Contracting Officer or
his authorized representative and shall be confirmed by telegram within
24 hours to the Contracting Officer. Such telegram shall state all
known facts as to extent of injury and damage and as to cause of the
accident or fire.
(2) Other accident and fire reports required by paragraph (a) of this
clause, may be reported by the Contractor using a state, private
insurance carrier, or contractor accident report form which provides for
the statement of: (i) The extent of injury; and (ii) the damage and
cause of the accident or fire. Such report shall be mailed or otherwise
delivered to the Contracting Officer within 48 hours of the occurrence
of the accident or fire.
(c) The contractor shall assure compliance by subcontractors at all
tiers with the requirements of this clause.
48 CFR 1252.223-72 Protection of human subjects.
As prescribed in 1223.7001(b) insert the following clause in
solicitations and contracts:
The contractor shall comply with the NHTSA principles and procedures
(in accordance with NHTSA Orders 700-1, 700-3, and 700-4) for the
protection of human subjects participating in activities supported
directly or indirectly by grants or contracts from NHTSA. In
fulfillment of its assurance:
A committee competent to review projects and activities that involve
human subjects shall be established and maintained by the contractor.
The committee shall be assigned responsibility to determine for each
activity planned and conducted that:
The rights and welfare of subjects are adequately protected.
The risks to subjects are outweighed by potential benefits.
The informed consent of subjects shall be obtained by methods that
are adequate and appropriate.
Committee reviews are to be conducted with objectivity and in a
manner to ensure the exercise of independent judgment of the members.
Members shall be excluded from reviews of projects or activities in
which they have an active role or a conflict of interest.
Continuing constructive communication between the committee and the
project directors must be maintained as a means of safeguarding the
rights and welfare of subjects.
Facilities and professional attention required for subjects who may
suffer physical, psychological, or other injury as a result of
participation in an activity shall be provided.
The committee shall maintain records of committee reviews of
applications and active projects, of documentation of informed consent,
and of other documentation that may pertain to the selection,
participation, and protection of subjects. Detailed records shall be
maintained of circumstances of any reviews that adversely affect the
rights or welfare of the individual subjects. Such materials shall be
made available to NHTSA upon request. The retention period for such
records and materials shall be as specified at FAR 4.703.
Periodic reviews shall be conducted by the contractor to assure,
through appropriate administrative overview, that the practices and
procedures designed for the protection of the rights and welfare of
subjects are being effectively applied.
Note: If the contractor has a Department of Health and Human
Services approved Institutional Review Board (IRB) which can
appropriately review this contract in accordance with the technical
requirements and NHTSA Orders 700-1, 700-3, and 700-4, that IRB will be
considered acceptable for the purposes of this contract.
1252.228-70 (Reserved)
48 CFR 1252.228-71 Loss of or damage to leased aircraft.
As prescribed in 1228.306-70-1 (a) and (b) insert the following
clause in solicitations and contracts:
(a) The Government assumes all risk of loss of, or damage (except
normal wear and tear) to, the leased aircraft during the term of this
lease while the aircraft is in the possession of the Government.
(b) In the event of damage to the aircraft, the Government, at its
option, shall make the necessary repairs with its own facilities or by
contract, or pay the Contractor the reasonable cost of repair of the
aircraft.
(c) In the event the aircraft is lost or damaged beyond repair, the
Government shall pay the Contractor the sum equal to the fair market
value of the aircraft at the time of such loss or damage, which value
may be specifically agreed to in the clause ''Fair Market Value of
Aircraft'', less the salvage value of the aircraft. However, the
Government may retain the damaged aircraft or dispose of it as it
wishes. In that event, the Contractor will be paid the fair market
value of the aircraft as stated in the clause.
(d) The Contractor certifies that the contract price does not include
any cost attributable to hull insurance or to any reserve fund it has
established to protect its interest in the aircraft. If, in the event
of loss or damage to the leased aircraft, the Contractor receives
compensation for such loss or damage in any form from any source, the
amount of such compensation shall be: (1) Credited to the Government in
determining the amount of the Government's liability; or (2) for an
increment of value of the aircraft beyond the value for which the
Government is responsible.
(e) In the event of loss of or damage to the aircraft, the Government
shall be subrogated to all rights of recovery by the Contractor against
third parties for such loss or damage and the Contractor shall promptly
assign such rights in writing to the Government.
48 CFR 1252.228-72 Fair market value of aircraft.
As prescribed in 1228.306-70-1(c) insert the following clause in
solicitation and contracts.
For purposes of the clause entitled ''Loss of or Damage to Leased
Aircraft'', it is agreed that the fair market value of the aircraft to
be used in the performance of this contract shall be the lesser of the
two values set out in paragraphs (a) and (b) of this clause:
(a) $XXXX or
(b) If the contractor has insured the same aircraft against loss or
destruction in connection with other operations, the amount of such
insurance coverage on the date of the loss or damage for which the
Government may be responsible under this contract.