Department of Energy Acquisition Regulation; Rewrite of Regulations Governing Management and Operating Contracts

Federal RegisterMar 13, 2000

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DEPARTMENT OF ENERGY

48 CFR Chapter 9

RIN 1991-AB49

Department of Energy Acquisition Regulation; Rewrite of Regulations Governing Management and Operating Contracts

AGENCY:

Department of Energy.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Department of Energy (DOE) proposes to amend its Acquisition Regulation to streamline the policies, procedures, provisions and clauses that are applicable to its management and operating contracts. This rulemaking proposes to eliminate coverage that is obsolete or which duplicates the Federal Acquisition Regulation (FAR), and retain only that coverage which either implements or supplements the FAR for the award and administration of the Department's management and operating contracts. The rule also proposes the addition of four new clauses, and amendments to several existing clauses which will promote more uniform application of the Department's award and administration policies for management and operating contracts.

DATES:

Written comments (see Section III., Public Comments) must be submitted no later than May 12, 2000.

ADDRESSES:

Comments (3 copies) should be addressed to: John R. Bashista, Office of Procurement and Assistance Management, Office of Procurement and Assistance Policy (MA-51), Department of Energy, 1000 Independence Avenue SW., Washington, D.C. 20585.

FOR FURTHER INFORMATION CONTACT:

John R. Bashista (202) 586-8192; e-mail john.bashista@pr.doe.gov; fax (202) 586-0545.

SUPPLEMENTARY INFORMATION:

I. Background

II. Section by Section Analysis

III. Public Comments

IV. Procedural Requirements

A. Review Under Executive Order 12866

B. Review Under Executive Order 12988

C. Review Under the Regulatory Flexibility Act

D. Review Under the Paperwork Reduction Act

E. Review Under the National Environmental Policy Act

F. Review Under Executive Order 12612

G. Review Under the Unfunded Mandates Reform Act of 1995

H. Review Under the Treasury and General Government Appropriations Act, 1999

I. Background

Over the past several years, DOE has achieved significant improvements in the way it conducts business with its management and operating (M&O) contractors. Contract management policies and practices have been strengthened and new processes implemented throughout the Department complex. In its report entitled “Making Contracting Work Better and Cost Less,” dated February 1994, the DOE Contract Reform Team recommended a number of changes for improving the Department's acquisition system. New policies were implemented in the Department of Energy Acquisition Regulation (DEAR) to provide for a more uniform contract management approach in the award and administration of the Department's major contracts.

The Department's Office of Procurement and Assistance Management recently completed a review of additional policies and procedures which had been in place for decades. These policies had been developed over many years to provide contract terms and conditions applicable to the unique M&O contracting environment. Further, these policies implement and supplement Subpart 17.6 of the FAR. The purpose of the review was to determine whether the Department's unique regulatory coverage for M&O contracts is still necessary, and if so, what improvements are required to maintain the credibility of the system.

In general, the conclusion of the review was that DEAR Part 970 should be retained and that most of the Department's procurement regulations pertaining to the award and administration of its M&O contracts implement statutory, regulatory or current DOE policy requirements that are not addressed in other Federal regulations. However, the review also concluded that certain policy and procedural requirements should be eliminated, and that several contract clauses are considered unnecessary or redundant of coverage already prescribed in the FAR. Notable recommendations include: (1) Developing guidance and establishing an internal control system to better manage deviations from or modifications to regulatorily prescribed clauses while ensuring that the flexibility exists to do so when necessary; (2) eliminating most of the DOE cost principles that are used for determining the allowability of costs under M&O contracts as they are largely redundant of the cost principles set forth in the FAR; (3) clarifying the applicability of the Uniform Contract Format for M&O contracts pursuant to FAR requirements; (4) clarifying the applicability of FAR provisions, and developing a clause matrix to be used by DOE's contracting professionals as the primary source of guidance for determining the applicability of FAR and DEAR clauses to M&O contracts; and (5) codifying commonly used, but unprescribed, terms and conditions unique to M&O contracts. Implementation of the recommendations resulting from the review will be accomplished through the issuance of internal Departmental guidance, as well as through amendment of the DEAR.

This rule proposes to rewrite DEAR Part 970, in its entirety, to streamline the policies, procedures, provisions and clauses that are applicable to the Department's M&O contracts. The rule proposes to eliminate coverage that is obsolete or that unnecessarily duplicates coverage contained in the FAR. The rule also proposes updates and revisions to the prescriptions and text of certain clauses that will provide greater flexibility for DOE contracting personnel to make administrative modifications to the text of these clauses and to eliminate the need for commonly used deviations to such clauses. Four new clauses are also proposed for inclusion in the DEAR. The new clauses will prescribe uniform Departmental policies concerning: (1) Cooperation between the Department and its contractors in disseminating information to the public; (2) technical direction provided to contractors by a designated Contracting Officer's Representative; (3) collaborating to identify, evaluate, and institutionalize processes that will improve the effectiveness or efficiency of any aspect of contract performance, and collaboration regarding such improvements with the Department and other major site and facility management contractors; (4) implementation of FAR 35.017 regarding the establishment, use, review, and termination of Federally Funded Research and Development Centers which are sponsored by the Department; and (5) outreach to the local communities in which DOE conducts business.

Moreover, it is proposed that Part 970 be reorganized and renumbered so that the coverage corresponds, to the extent practicable, with the FAR Part, subpart, section, and subsection(s) being implemented or supplemented, as appropriate, in Part 970. Accordingly, technical and conforming amendments to DEAR Part 970 and other DEAR Parts are also proposed.

A separate rulemaking will be issued to implement certain recommendations concerning the amendment or removal

of certain DEAR Part 970 cost principles and related provisions and clause. It is anticipated that the final rules for both proposed rulemakings will be issued concurrently.

II. Section by Section Analysis

1. Several sections of Parts 901 through 952 are amended to revise cross-references to coverage that is contained in Part 970 to conform with the new Part 970 numbering system proposed in this rule.

2. Section 902.200 is amended by correcting paragraph citations, and adding a sentence that authorizes the contracting officer to include additional definitions to those contained in the prescribed clause.

3. Part 903 is amended by adding subpart 903.9 to relocate and consolidate coverage currently contained in subpart 922.71 and section 970.2274. New subpart 903.9 will include new section 903.902, which provides a cross-reference to the definition for Contractor which is contained in 10 CFR 708.2, and which is specific to DOE's Employee Protection Program.

4. Subpart 904.72 is added to prescribe a uniform Departmental policy regarding the release of unclassified information relating to M&O contracts to the public and the news media.

5. Section 911.604 is amended to revise the prescription for the use of the clauses at 48 CFR 952.211-70 and 48 CFR 952.211-71 to conform to changes proposed to 48 CFR 970.5204-33.

6. Subsection 915.408-70 is added to prescribe the use of a new clause at 48 CFR 952.215-70, Key Personnel. The new clause will accommodate both M&O and other than M&O contracts, thus replacing the two clauses currently prescribed at 48 CFR 952.235-70 (for other than M&O contracts) and 48 CFR 970.5204-42 (for M&O contracts).

7. Section 917.600 is amended to clarify the scope of Subpart 917.6.

8. Section 917.601 is amended to revise the definition of performance-based contracting to cross-reference the definition of the term that is already contained in the FAR.

9. Section 917.602 is amended to add a new paragraph (a), which contains certain text that is currently contained in section 970.0000 that implements FAR 17.602.

10. Section 917.604 is removed as unnecessary.

11. Section 917.605 is removed and the coverage is relocated to proposed new subsection 970.1706-1(c) consistent with the reorganization and renumbering of Part 970.

12. Subpart 922.71 is removed due to amendments addressed in paragraph 3.

13. Section 927.303 is amended by revising paragraph (a) to prescribe the use of the clauses at 952.227-11 and 952.227-13 for M&O contracts pursuant to the removal of sections 970.5204-71 and 970.5204-72 from Part 970 proposed in this rule. Proposed new Alternate I to the clause at 952.227-11, and proposed new Alternate I for the clause at 952.227-13 contain, verbatim, the text currently in 970.5204-71 and 970.5204-72, respectively.

14. Section 935.070 is removed due to the amendments addressed in paragraph 6.

15. Subpart 942.2 is added to prescribe uniform DOE policy regarding technical direction that is provided to contractors by a designated Contracting Officer's Representative.

16. Subpart 947.70 is added to incorporate guidance in the DEAR regarding contractor foreign travel and to add a prescription for the use of the clause that is currently contained in section 952.247-70, Foreign Travel. Currently, there is no policy section in the regulation to prescribe the basis and use of the existing clause.

17. Section 952.203-70 is added to accommodate the proposed redesignation of section 970.5204-59 as section 952.203-70.

18. Section 952.204-75 is added to prescribe a uniform clause pertaining to the dissemination of unclassified information relating to M&O contracts to the public and the news media (see paragraph 4.).

19. Section 952.215-70 is added to provide for a single clause which will accommodate M&O and other than M&O contracts (see paragraph 6.).

20. Section 952.222-70 is removed due to amendments addressed in paragraph 3.

21. Section 952.227-11 is amended by revising the prescription and clause date and adding an Alternate I to provide a single clause for M&O and other than M&O contracts (see paragraph 13.).

22. Section 952.227-13 is amended by revising the prescription and clause date and adding an Alternate I to provide a single clause for M&O and other than M&O contracts (see paragraph 13.).

23. Section 952.242-70 is added to prescribe a uniform clause pertaining to Contracting Officer's Representative authorities and limitations in providing technical direction to DOE contractors (see paragraph 15.).

24. Section 952.247-70 is amended by revising the prescription in the preface to the clause pursuant to the addition of new Subpart 947.70 (see paragraph 16.).

25. Section 952.250-70 is amended to revise an incorrect clause reference in paragraph (h) of the clause.

26. The table below provides a crosswalk reflecting, by section, the proposed reorganization and redesignation of Part 970, and descriptions of the amendments being proposed. The Department is seeking comments on only those changes marked with an “

✔

” in the comments column. The “Remarks” column of the table explains the specific changes to the section. Comments are not solicited on the amendments addressed in the table which are not marked with an “

✔

” since they are technical and conforming changes only.

Part 970 Rewrite

New citation

Current citation

Title

Remarks

Comments

970.01

N/A

Management and Operating Contract Regulatory System

Subpart number and title are added for organizational purposes

z

970.0100

970.0000

Scope of Part

970.0000 is redesignated as 970.0100 and the text revised to clarify the scope of Part 970

z

N/A

970.0001

[Reserved]

Section is removed as unnecessary.

z

970.0103

N/A

Publication and Codification

Section number, title and text are added. The new coverage in this section supplements FAR 1.303 to describe the new organization and numbering system for Part 970

z

970.03

970.03 [Note: Current 970.03 is reserved]

Improper Business Practices and Personal Conflicts of Interest

Subpart number and title are added for organizational purposes

z

970.0309

970.2274

Whistleblower Protection of Contractor Employees

970.2274 is redesignated as 970.0309.

970.0309-1

970.2274-1(a)

Applicability

Section is added to prescribe the applicability of the coverage contained in new subpart 903.9, as proposed in this rule, to management and operating contracts. New subpart 903.9 contains coverage currently contained in sections 970.2274-1 and 970.2274-2 which is proposed for relocation to subpart 903.9

z

970.0370

970.0901 (Title)

Management Controls and Improvements

970.0901 (Title only) is redesignated as 970.0370 and amended. The new subsections of this section contain the text of 970.0901 as described below.

970.0370-1

970.0901(a), (b), and (c)

Policy

970.0901, paragraphs (a), (b) and (c), is redesignated as 970.0370-1. The subsection is also amended to add new paragraph (d) to implement new DOE policy to facilitate collaboration of improvements in any aspect of performance among the contractor, DOE, and other major facility contractors

z

970.0370-2

N/A

Contract Clause

Subsection is added to prescribe the use of the existing clause at 970.5204-20, Management Controls. Although use of the clause is prescribed in the preface to the clause itself, there is no coverage in the policy section of the regulation to prescribe the basis and use of the clause. The subsection also prescribes the use of new clause 970.5203-2, Performance Improvement and Collaboration, to implement the policy proposed at new 970.0370-1(d)

z

970.0371

970.2272 (Title)

Conduct of Employees of DOE Management and Operating Contractors

970.2272 (Title only) is redesignated as 970.0371 and modified to remove the term “Consultants.” The subsections of this section contain the text of 970.2272, as amended (see following subsections for summary of amendments)

z

970.0371-1

970.2272(a)

Scope of Section

Contains coverage codified at 970.2272, paragraph (a)

z

970.0371-2

970.2272(b)(1)

Applicability

Contains coverage codified at 970.2272, subparagraph (b)(1). The text is revised to remove the prescription for the use of DEAR clauses 970.5204-27(a) and (b) which are proposed for removal

z

970.0371-3

N/A

Definition

Subsection is added to clarify the definition of “Employee” for the purposes of the policies contained in section 970.0371

z

970.0371-4

970.2272(c)

Gratuities

Contains coverage codified at 970.2272, paragraph (c). Text is revised to remove the reference to “41 U.S.C. 51-54” and to substitute in lieu thereof a reference to “FAR 3.502.”

z

970.0371-5

970.2272(d)

Use of Privileged Information

Contains coverage codified at 970.2272, paragraph (d)

z

970.0371-6

970.2272(g)

Incompatibility Between Regular Duties and Private Interests

Contains coverage codified at 970.2272, paragraph (g)

z

970.0371-7

970.2272(e)

Outside Employment of Contractor Employees

Contains coverage codified at 970.2272, paragraph (e)

z

970.0371-8

970.2272(f)

Employee Disclosure Concerning Other Employment Service

Contains coverage codified at 970.2272, paragraph (f). Title and text are revised to prescribe a requirement for a disclosure (previously required by 970.5204-27) in lieu of an information statement

z

970.0371-9

970.2272(b)(2) and (3)

Contract Clause

Contains coverage codified at 970.2272, subparagraph (b)(2). Prescription at 970.2272(b)(3) is removed

z

970.04

970.04

Administrative Matters

No change.

970.0404

970.0404

Safeguarding Classified Information

No change.

970.0404-1

970.0404-1

Definitions

No change.

970.0404-2

970.0404-2

General

No change.

970.0404-3

970.0404-3 (a) and (b) 970.0404-4 (d)

Responsibilities of Contracting Officers

970.0404-3, paragraphs (a) and (b) are unchanged. 970.0404-4, paragraph (d) is redesignated as 970.0404-3, paragraph (c).

970.0404-4

970.0404-4 (a), (b) and (c)

Solicitation Provision and Contract Clauses

Subsection is amended to revise the title, and to: (a) remove the redundant prescription for the use of several DEAR 952 clauses which are already prescribed in 904.404 and 904.7103; and (b) substitute a cross-reference to these sections. The prescription for the clause entitled Counterintelligence is retained

z

N/A

970.0406

[Reserved]

Section is removed

970.0407

N/A

Contractor Records Retention

Section number and title are added for organizational purposes. The subsections of this section contain coverage relocated from 970.0407.

970.0407-1

970.0407

Applicability

970.0407 is redesignated as 970.0407-1 and the title revised to conform with related FAR coverage.

970.0407-1-1

970.0407-1

Alternate Retention Schedules

970.0407-1 is redesignated as 970.0407-1-1and revised to update the DOE directive reference.

970.0407-1-2

970.0407-2

Access to and Ownership of Records

970.0407-2 is redesignated as 970.0407-1-2.

970.0407-1-3

970.0407-3

Contract Clause

970.0407-3 is redesignated as 970.0407-1-3.

970.0470

970.0470

Department of Energy Directives

No change.

970.0470-1

970.0470-1

General

Subsection is revised to prescribe DOE policy pertaining to requirements addressed in paragraphs (a) and (c) of the clause at 970.5204-78, Laws, Regulations and DOE Directives. Current coverage addresses only requirements addressed in paragraph (b) of the clause

z

970.0470-2

970.0470-2

Contract Clause

No change.

970.08

970.08

Required Sources of Supplies and Services

No change

970.0801

970.0801 (Title)

Excess Personal Property

No change (Title only).

970.0801-1

970.0801 (Text)

Policy

Section and title are added. Contains text of coverage currently codified at 970.0801.

970.0808

N/A

Acquisition of Printing.

Section number and title are added for organizational purposes. Currently, there is no coverage in the policy section of the regulation to prescribe the basis and use of the clause entitled “Printing.”

970.0808-1

N/A

Scope of Section

Section number and title are added for organizational purposes (see 970.0808 above).

970.0808-2

N/A

Policy

Section number and title are added for organizational purposes (see 970.0808 above).

970.0808-3

N/A

Contract Clause

Section number and title are added (see 970.0808 above).

970.09

970.09

Contractor Qualifications

No change.

970.0905

970.0905

Organizational Conflicts of Interest

No change.

970.0970

N/A

Performance Guarantees

Section number and title are added for organizational purposes.

970.0970-1

970.0902(a), (b) and (c)

Determination of Responsibility

970.0902, paragraphs (a), (b) and (c) are redesignated as 970.0970-1.

970.0970-2

970.0902(d)

Solicitation Provision

970.0902, paragraph (d), is redesignated as 970.0970-2.

970.11

970.10

Describing Agency Needs

970.10 is redesignated as 1970.11.

970.1100

N/A

Policy

Section number and title are added for organizational purposes.

970.11.00-1

970.1001

Performance-based Contracting

970.1001 is redesignated as 970.1100-1.

970.11.00-2

970.1002

Additional Considerations

970.1002 is redesignated as 970.1100-2.

970.15

970.15

Contracting by Negotiation

No change.

970.1504

N/A

Contract Pricing

Section number and title are added for organizational purposes.

970.1504-1

N/A

Price Analysis

Subsection number and title are added for organizational purposes.

970.1504-1-1

970.15404-4

Fees for Management and Operating Contracts

970.15404-4 is redesignated as 970.1504-1-1.

970.1504-1-2

970.15404-4-1

Fee Policy

970.15404-4-1 is redesignated as 970.1504-1-2.

970.1504-1-3

970.15404-4-2

Special Considerations: Laboratory Management and Operation

970.15404-4-2 is redesignated as 970.1504-1-3.

970.1504-1-4

970.15404-4-3

Types of Contracts and Fee Arrangements

970.15404-4-3 is redesignated as 970.1504-1-4.

970.1504-1-5

970.15404-4-4

General Considerations and Techniques for Determining Fixed Fees

970.15404-4-4 is redesignated as 970.1504-1-5.

970.1504-1-6

970.15404-4-5

Calculating Fixed Fee

970.15404-4-5 is redesignated as 970.1504-1-6.

970.1504-1-7

970.15404-4-6

Fee Base

970.15404-4-6 is redesignated as 970.1504-1-7.

970.1504-1-8

970.15404-4-7

Special Equipment Purchases

970.15404-4-7 is redesignated as 970.1504-1-8.

970.1504-1-9

970.15404-4-8

Special Considerations: Cost-plus-award-fee

970.15404-4-8 is redesignated as 970.1504-1-9.

970.1504-1-10

970.15404-4-9

Special Considerations: Fee Limitations

970.15404-4-9 is redesignated as 970.1504-1-10.

970.1504-1-11

970.15404-4-10

Documentation

970.15404-4-10 is redesignated as 970.1504-1-11.

970.1504-2

970.15405

Price Negotiation

970.15405 is redesignated as 970.1504-2.

970.1504-3

N/A

Documentation

Subsection number and title are added for organizational purposes.

970.1504-3-1

970.15406-2

Cost or Pricing Data

970.15406-2 is redesignated as 970.1504-3-1.

970.1504-4

N/A

Special Cost or Pricing Areas

Subsection number and title are added for organizational purposes.

970.1504-4-1

970.15407-2

Make-Or-Buy Plans

970.15407-2 is redesignated as 970.1504-4-1.

970.1504-4-2

970.15407-2-1

Policy

970.15407-2-1 is redesignated as 970.1504-4-2.

970.1504-4-3

970.15407-2-2

Requirements

970.15407-2-2 is redesignated as 970.1504-4-3. The section is also amended in paragraph (a) to specifically assign to the Head of the Contracting Activity (HCA) the responsibility for ensuring that program specific make-or-buy criteria are developed and provided to the contractor for use in its make-or-buy plan administration activities for the facility, site, or specific program, as appropriate. It is recognized that the HCA must rely on program, technical, and business specialists within the agency for the actual development of the program specific make-or-buy criteria so that the criteria appropriately reflect program considerations applicable to the contractor's make-or-buy decisions. The section also is being amended by adding language recognizing the collaboration needed to develop effective program specific make-or-buy criteria.

z

970.1504-5

970.15404-4-11, 970.15407-2-3

Solicitation Provision and Contract Clauses

970.15404-11 is redesignated as 970.1504-5, paragraphs (a), (c), (d) and (e). 970.15407-2-3 is redesignated as 970.1504-5, paragraph (b), and amended to revise the clause prescription to authorize an administrative modification to the clause.

970.17

970.17

Special Contracting Methods

No change.

970.1706

N/A

Management and Operating Contracts

Section number and title are added for organizational purposes.

970.1706-1

970.1702-1

Award, Renewal, and Extension

970.1702-1, paragraphs (a) and (b), is redesignated as 970.1706-1, paragraphs (a) and (b), and the title revised. Coverage contained at 917.605 is redesignated as 970.1706-1, paragraph (c).

970.1706-2

970.1702-2

Contract Clause

970.1702-2 is redesignated as 970.1706-2 and the title revised. The subsection is further revised to: (a) remove the prescription for use of the provision at 970.5204-73 and the clause at 970.5204-74, which are proposed for removal under this rule; and (b) add supplemental coverage to FAR 17.208(g) to prescribe the use of FAR clause 52.217-9 in DOE M&O contracts.

z

970.19

970.19

Small, Small Disadvantaged and Women-owned Small Business Concerns

No change.

970.1907

N/A

Subcontracting with Small Business, Small Dis-advantaged Business and Woman-owned Small Business Concerns

Section number and title are added for organizational purposes.

970.1907-1

970.1901

Subcontracting Plan Requirements

970.1901 is redesignated as 970.1907-1. Section is revised to remove paragraph (a) in favor of existing FAR coverage (FAR 19.708).

z

N/A

970.20

[Reserved]

Subpart is removed.

970.22

970.22

Application of Labor Policies

No change.

970.2200

N/A

Scope of Subpart

Section number and title are added for organizational purposes.

970.2201

970.2201

Basic Labor Policies.

No change.

970.2201-1

N/A

Labor Relations

Section number and title are added for organizational purposes.

970.2201-1-1

970.2201(a)

General

Contains coverage codified at 970.2201, paragraph (a).

970.2201-1-2

970.2201(b)

Policies

Contains coverage codified at 970.2201, paragraph (b).

970.2201-1-3

970.2201(b)(5) (ii)

Contract Clause

Contains coverage codified at 970.2201, last sentence of paragraph (b)(5)(ii).

970.2201-2

970.2275

Overtime Management

970.2275 is redesignated as 970.2201-2.

970.2201-2-1

970.2275-1

Policy.

970.2275-1 is redesignated as 970.2201-2-1.

970.2201-2-2

970.2275-2

Contract Clause

970.2275-2 is redesignated as 970.2201-2-2.

N/A

970.2206

Walsh-Healey Public Contracts Act

Section is removed. Coverage to be reissued as internal DOE guidance.

z

970.2204

N/A

Labor Standards for Contracts Involving Construction

Subpart number and title are added for organizational purposes. The subordinate sections/subsections of this Subpart contain coverage codified at 970.2273. These changes conform the numbering of supplemental DEAR coverage with related FAR coverage to the extent practicable.

970.2204-1

N/A

Statutory and Regulatory Requirements

Section number and title are added for organizational purposes.

970.2204-1-1

970.2273

Administrative Controls and Criteria for Application of the Davis-Bacon Act in Operational or Maintenance Activities

Section 970.2273 is redesignated as 970.2204-1-1.

970.2208

970.2208

Equal Employment Opportunity

No change.

970.2210

970.2210

Service Contract Act

No change.

970.2270

970.2270

Unemployment Compensation

No change.

970.23

970.23

Environmental, Conservation, and Occupational Safety Programs

No change.

970.2303

970.2303

Hazardous Materials Identification and Material Safety

No change.

970.2303-1

970.2303-1

General

No change.

970.2303-2

970.2303-2

Clauses

No change.

970.2304

970.2304

Use of Recovered/Recycled Materials

No change.

970.2304-1

970.2304-1

General

No change.

970.2304-2

970.2304-2

Contract Clause

No change.

970.2305

970.2305

Workplace Substance Abuse Programs—Management and Operating Contracts

No change.

970.2305-1

970.2305-1

General

No change.

970.2305-2

970.2305-2

Applicability

No change.

970.2305-3

970.2305-3

Definitions

No change.

970.2305-4

970.2305-4

Solicitation Provision and Contract Clause

No change.

970.2306

970.2305-5

Suspension of Payments, Termination of Contract, and Debarment and Suspension Actions

970.2305-5 is redesignated as 970.2306.

N/A

970.25

Foreign Acquisition

Subpart is removed. The coverage codified at 970.2501 is relocated to new subsection 970.3701-1(see below).

970.26

970.26

Other Socioeconomic Programs

No change.

970.2670

970.2601 (Title)

Implementation of Section 3021 of the Energy Policy Act of 1992

970.2601 (Title only) is redesignated as 970.2670. The text of 970.2601 is contained in new subsections 970.2670-1 and 970.2671-1,as noted below.

970.2670-1

970.2601(a)

Requirements

Contains coverage codified at 970.2601, paragraph (a).

970.2671

N/A

Diversity

Section number and title are added for organizational purposes.

970.2671-1

970.2601(b)

Policy

Contains coverage codified at 970.2601, paragraph (b).

970.2671-2

970.2602-2(b)

Contract Clause

Contains coverage codified at 970.2602-2, paragraph (b).

970.2672

970.2602-1

Implementation of Section 3161 of the National Defense Authorization Act for Fiscal Year 1993

970.2602-1 (Title only) is redesignated as 970.2672. The text of 970.2602-1 is contained in new subsections 970.2672-1 and 970.2672-2 as noted below.

970.2672-1

970.2602-1(a)

Policy

Contains coverage codified at 970.2602-1, paragraph (a).

970.2672-2

970.2602-1(b)

Requirements

Contains coverage codified at 970.2602-1, paragraph (b).

970.2672-3

970.2602-2(a)

Contract Clause

Contains coverage codified at 970.2602-2, paragraph (a).

970.2673

N/A

Regional Partnerships

New section number and title are added

z

970.2673-1

N/A

Policy

New subsection added to prescribe DOE policy concerning the establishment of constructive business partnerships in geographic regions in which DOE conducts business

z

970.2673-2

N/A

Contract Clause

Prescribes the use of new contract clause 970.5226-3, Community Commitment

z

970.27

970.27

Patents, Data, and Copyrights

No change.

970.2701

970.2701 (Title)

General

No change (Title)

970.2701-1

970.2701 (Text)

Applicability

Contains the text of the coverage codified at 970.2701.

970.2703

970.2702 (Title)

Patent Rights

970.2702 (Title only) is redesignated as 970.2703

970.2703-1

970.2702 (Text)

Policy

Contains the text of the coverage codified at 970.2702.

970.2703-2

970.2704

Contract Clauses

970.2704 is redesignated as 970.2703-2. Section is revised to remove existing coverage pursuant to amendments to 927.303, 952.227-11 and 952.227-13 proposed in this rule, and to add a cross-reference to 927.303

z

970.2704

N/A

Rights in Data

Section number and title are added for organizational purposes.

970.2704-1

970.2705

General

970.2705 is redesignated as 970.2704-1 and the title revised.

970.2704-2

970.2706

Procedures

970.2706 is redesignated as 970.2704-2 and the title revised.

970.2704-3

970.2707

Contract Clauses

970.2707 is redesignated as 970.2704-3 and the title revised.

970.2770

970.73

Technology Transfer

970.73 is redesignated as 970.2770.

970.2770-1

970.7310

General

970.7310 is redesignated as 970.2770-1.

970.2770-2

970.7320

Policy

970.7320 is redesignated as 970.2770-2.

970.2770-3

970.2703

Technology Transfer and Data Rights

970.2703 is redesignated as 970.2770-3 and the title revised.

970.2770-4

970.7330

Contract Clause

970.7330 is redesignated as 970.2770-4.

970.28

970.28

Bonds and Insurance

No change.

970.2803

N/A

Insurance

Section number and title are added for organizational purposes.

970.2803-1

970.2271

Workers' Compensation Insurance

970.2271 is redesignated as 970.2803-1.

970.2803-2

970.2830

Contract Clause

970.2830 is redesignated as 970.2803-2.

970.29

970.29

Taxes

No change.

970.2902

N/A

Federal Excise Taxes

Section number and title are added for organizational purposes.

970.2902-1

970.2901

Exemptions from Federal Excise Taxes

970.2901 is redesignated as 970.2902-1.

970.2903

N/A

State and Local Taxes

Section number and title are added for organizational purposes.

970.2903-1

970.2902

Applicability of State and Local Taxes to the Government

970.2902 is redesignated as 970.2903-1 and the title revised.

970.2904

N/A

Contract Clauses

Section number and title are added for organizational purposes.

970.2904-1

970.2903

Management and Operating Contracts

970.2903 is redesignated as 970.2904-1 and revised to add a prescription for the modification of the clause at 48 CFR 52.229-10 for management and operating contracts.

z

970.30

970.30

Cost Accounting Standards

No change.

970.3002

970.3001

CAS Program Requirements

970.3001 is redesignated as 970.3002 and the title revised.

970.3002-1

970.3001-1

Applicability

970.3001-1 is redesignated as 970.3002-1.

970.3002-2

970.3001-2

Limitations

970.3001-2 is redesignated as 970.3002-2.

970.31

970.31

Contract Cost Principles and Procedures

No change.

970.3100

970.3100

Scope of Subpart

The section title is revised.

970.3100-1

970.3100-1

Definitions

No change.

970.3100-2

970.3100-2

Responsibilities

No change.

970.3101

N/A

Applicability

Section number and title are added for organizational purposes.

970.3101-1

970.3100-3

Objectives

970.3100-3 is redesignated as 970.3101-1 and the title revised.

970.3101-2

970.3101-6

Advance Agreements

970.3101-6 is redesignated as 970.3101-2 and the title revised.

970.3101-3

970.3101-7

Cost Certification and Penalties on Unallowable Costs

970.3101-7 is redesignated as 970.3101-3 and the title revised.

970.3102

N/A

Contracts with Management and Operating Contractors

Section number and title are added for organizational purposes.

970.3102-1

970.3101

General

970.3101 is redesignated as 970.3102-1 and the title revised.

970.3102-1-1

970.3101-1

Actual Cost Basis

970.3101-1 is redesignated as 970.3102-1-1.

970.3102-1-2

970.3102

Application of Cost Principles

970.3102 is redesignated as 970.3102-1-2.

970.3102-1-3

970.3101-3

General Basis for Reimbursement of Costs

970.3101-3 is redesignated as 970.3102-1-3.

970.3102-1-4

970.3101-4

Cost Determination Based on Audit

970.3101-4 is redesignated as 970.3102-1-4.

970.3102-1-5

970.3101-5

Contractor's System of Accounting

970.3101-5 is redesignated as 970.3102-1-5.

970.3102-2

970.3101-2

Direct and Indirect Costs

970.3101-2 is redesignated as 970.3102-2.

970.3102-3

N/A

Selected Costs

Section number and title are added for organizational purposes.

970.3102-3-1

970.3102-19

Public Relations and Advertising

970.3102-19 is redesignated as 970.3102-3-1.

970.3102-3-2

970.3102-2

Compensation for Personal Services

970.3102-2 is redesignated as 970.3102-3-2.

970.3102-3-3

970.3102-3

Cost of Money

970.3102-3 is redesignated as 970.3102-3-3.

970.3102-3-4

970.3102-4

Depreciation

970.3102-4 is redesignated as 970.3102-3-4.

970.3102-3-5

970.3102-5

Employee Morale, Health, Welfare, Food Service, and Dormitory Costs

970.3102-5 is redesignated as 970.3102-3-5.

970.3102-3-6

970.3102-21

Fines, Penalties, and Mischarging Costs

970.3102-21 is redesignated as 970.3102-3-6.

970.3102-3-7

970.3102-7

Lobbying and Political Activity Costs

970.3102-7 is redesignated as 970.3102-3-7 and the title revised.

970.3102-3-8

970.3102-1

General and Administrative Expenses

970.3102-1 is redesignated as 970.3102-3-8.

970.3102-3-9

970.3102-12

Plant Reconversion Costs

970.3102-12 is redesignated as 970.3102-3-9.

970.3102-3-10

970.3102-13

Precontract Costs

970.3102-13 is redesignated as 970.3102-3-10.

970.3102-3-11

970.3102-9

Professional and Consultant Service Costs

970.3102-9 is redesignated as 970.3102-3-11.

970.3102-3-12

970.3102-16

Relocation Costs

970.3102-16 is redesignated as 970.3102-3-12.

970.3102-3-13

970.3102-8

Trade, Business and Professional Activity Costs

970.3102-8 is redesignated as 970.3102-3-13 and the title revised.

970.3102-3-14

970.3102-17

Travel Costs

970.3102-17 is redesignated as 970.3102-3-14.

970.3102-3-15

970.3102-20

Cost Related to Legal and Other Proceedings

970.3102-20 is redesignated as 970.3102-3-15 and the title revised.

970.3102-3-16

970.3102-10

Overtime, Shift, and Holiday Premiums

970.3102-10 is redesignated as 970.3102-3-16.

970.3102-3-17

970.3102-11

Page Charges in Scientific Journals

970.3102-11 is redesignated as 970.3102-3-17.

970.3102-3-18

970.3102-14

Preparatory and Make-Ready Costs

970.3102-14 is redesignated as 970.3102-3-18.

970.3102-3-19

970.3102-6

Facilities (Plant and Equipment)

970.3102-6 is redesignated as 970.3102-3-19.

970.3102-3-20

970.3102-18

Special Funds in the Construction Industry

970.3102-18 is redesignated as 970.3102-3-20.

970.3102-3-21

970.3102-15

Procurement: Subcontracts, Contractor-Affiliated Sources, and Leases

970.3102-15 is redesignated as 970.3102-3-21.

970.3170

970.3103

Contract Clauses

970.3103 is redesignated as 970.3170.

970.32

970.32

Contract Financing

No change.

970.3200

970.3201

Policy

970.3201 is redesignated as 970.3200 and the title revised.

970.3200-1

970.3272(a) and (b)

Reduction or Suspension of Advance, Partial, or Progress Payments

970.3272, paragraphs (a) and (b) are redesignated as 970.3200-1.

970.3200-1-1

970.3272 (c)

Contract Clause

970.3272, paragraph (c) is redesignated as 970.3200-1-1.

970.3204

970.3202 (Title)

Advance Payments

970.3202 (Title only) is redesignated as 970.3204.

970.3204-1

970.3202 (Text)

Applicability

Contains the text of the coverage codified at 970.3204-1.

970.3204-2

970.3171

Special Bank Account Agreement

970.3171 is redesignated as 970.3204-2.

970.3204-3

970.3170

Contract Clause

970.3170 is redesignated as 970.3204-3 and the title revised.

970.3270

N/A

Standard Financial Management Clauses

Section number and title are added for organizational purposes. The section consolidates the prescriptions for certain financial management clauses contained in subpart 970.52.which are now only prescribed in the preface of each clause.

z

970.34

970.70

Major System Acquisition

970.70 is redesignated as 970.34 and the title revised

970.3400

N/A

General Requirements

Section number and title are added for organizational purposes.

970.3400-1

970.7000

Mission-oriented Solicitation

970.7000 is redesignated as 970.3400-1.

970.35

N/A

Research and Development Contracting

Subpart number and title are added to prescribe uniform policies and procedures for DOE implementation of FAR 35.017.

z

970.3500

N/A

Scope of Subpart

Section number and title are added to prescribe the scope of new Subpart 970.35.

z

970.3501

N/A

Federally Funded Research and Development Centers

Section number and title are added for organizational purposes.

z

970.3501-1

N/A

Sponsoring Agreements

Subsection number and title are added to prescribe implementing requirements for FAR 35.017-1.

z

970.3501-2

N/A

Using an FFRDC

Subsection number and title are added to prescribe implementing requirements for FAR 35.017-3.

z

970.3501-3

N/A

Reviewing FFRDC's

Subsection number and title are added to prescribe implementing requirements for FAR 35.017-4.

z

970.3501-4

N/A

Contract Clause

Subsection number and title are added to prescribe a uniform clause for implementing Subpart 970.35.

z

970.36

970.36

Construction and Architect-Engineer Contracts

No change.

970.3605

N/A

Contract Clauses

Section number and title are added for organizational purposes.

970.3605-1

970.5204-43

Other Contracts

970.5204-43 is redesignated as 970.3605-1and the title and text revised. The DOE clause is removed and a supplement to the FAR prescription for the use of FAR clause 52.236-8 is added.

z

970.3605-2

970.3601

Special Construction Clause for Operating Contracts

970.3601 is redesignated as 970.3605-2.

970.37

N/A

Facilities Management Contracting

Subpart number and title are added for organizational purposes.

970.3701

N/A

General

Section number and title are added for organizational purposes.

970.3701-1

970.2501

Severance Payments for Foreign Nationals

970.2501 is redesignated as 970.3701-1.

970.3701-1-1

970.2501(a)

Waiver of Cost Allowability Provisions

Contains coverage codified at 970.2501, paragraph (a).

970.3701-1-2

970.2501(b)

Solicitation Provision and Contract Clause

Contains coverage codified at 970.2501, paragraph (b).

970.3770

970.72

Facilities Management

970.72 is redesignated as 970.3770.

970.3770-1

970.7201

Policy

970.7201 is redesignated as 970.3770-1 (except the clause prescription).

970.3770-2

970.7201

Contract Clause

970.7201 (clause prescription) is redesignated as 970.3770-2.

970.41

970.41

Acquisition of Utility Services

No change.

970.4102

N/A

Acquiring Utility Services

Section number and title are added for organizational purposes.

970.4102-1

970.4100

Policy

970.4100 is redesignated as 970.4102-1 and the title revised.

970.43

N/A

Contract Modifications

Subpart number and title are added for organizational purposes.

970.4302

N/A

Changes

Section number and title are added for organizational purposes.

970.4302-1

N/A

Contract Clause

Section number and title are added for organizational purposes. Subsection prescribes the use of existing DEAR clause entitled “Changes.” Currently, there is no coverage in the policy section of the regulation to prescribe the basis and use of the clause.

970.44

970.71

Management and Operating Contractor Purchasing

970.71 is redesignated as 970.44.

970.4400

N/A

Scope

Section number and title are added for organizational purposes.

970.4401

N/A

Responsibilities

Section number and title are added for organizational purposes.

970.4401-1

970.7102

General

970.7102 is redesignated as 970.4401-1 and the title and text revised. Paragraph (b)(4) is revised to provide for two alternative methods which may be used by the contracting officer for conducting periodic appraisals of the contractor's purchasing function

z

970.4401-2

970.7108

Review and Approval

970.7108 is redesignated as 970.4401-2.

970.4401-3

970.7109

Advance Notification

970.7109 is redesignated as 970.4401-3.

970.4402

N/A

Contractor Purchasing System

Section number and title are added for organizational purposes.

970.4402-1

970.7101

Policy

970.7101 is redesignated as 970.4402-1 and the title revised.

970.4402-2

970.7103

General Requirements

970.7103 is redesignated as 970.4402-2 and the title revised. The subsection is also revised to add new paragraph (d)(9) to emphasize the Department's policy regarding the maximization of opportunities for small, small disadvantaged, and woman-owned small business concerns in the performance of its major site and facility management contracts.

z

970.4402-3

970.7105

Purchasing From Contractor-Affiliated Sources

970.7105 is redesignated as 970.4402-3.

970.4402-4

970.7110

Nuclear Material Transfers

970.7110 is redesignated as 970.4402-4.

970.4403

N/A

Contract Clause

Section number and title are added for organizational purposes. Subsection prescribes the use of existing DEAR clause entitled “Contractor Purchasing System.” Currently, there is no coverage in the policy section of the regulation to prescribe the basis and use of the clause.

970.45

970.45

Government Property

No change.

970.4501

N/A

General

Section number and title are added for organizational purposes.

970.4501-1

970.4501

Contract Clause

970.4501 is redesignated as 970.4501-1 and amended to authorize the contracting officer to list specific managerial personnel in paragraph (j) of the clause.

z

970.49

970.49

Termination of Contracts

No change.

970.4905

N/A

Contract Termination Clause

Section number and title are added for organizational purposes.

970.4905-1

970.4901 and 970.4902

Termination for Convenience and Default.

970.4901 and 970.4902 are redesignated as 970.4905-1 and the coverage revised to reflect the removal of the clause at 970.5204-45 in favor of FAR clause 52.249-6

z

970.50

N/A

Extraordinary Contractual Actions

Subpart number and title are added for organizational purposes.

970.5070

970.2870 (Title)

Indemnification

970.2870 (Title only) is redesignated as 970.5070. The text of 970.2870 is contained in the subordinate subsections to this new section 970.5070 as noted below.

970.5070-1

970.2870(a) and (b)

Scope and Applicability

Contains coverage codified at 970.2870, paragraphs (a) and (b).

970.5070-2

970.2870(e)

General

Contains coverage codified at 970.2870, paragraph (e).

970.5070-3

970.2870(c) and (d)

Contract Clauses

Contains coverage codified at 970.2870, paragraphs (c) and (d).

N/A

970.51

Use of Government Sources by Contractors

Subpart and subordinate sections are removed. Coverage to be reissued as internal DOE guidance

z

970.52

970.52

Solicitation Provisions and Contract Clauses for Management and Operating Contracts

No change.

970.5200

970.5201

Scope of Subpart

970.5201 is redesignated as 970.5200 and the title and text revised. The section is revised to clarify the use of the clauses prescribed in the Subpart in relation to the clauses prescribed in the FAR and in DEAR part 952

z

N/A

970.5203

Modifications and Notes to Far Clauses

Section is removed as the coverage contained in the subordinate sections are unnecessarily duplicative of FAR coverage

z

970.5201

970.5204

Text of Provisions and Clauses

970.5204 is redesignated as 970.5201 and the title is revised.

970.5203-1

970.5204-20

Management Controls

970.5204-20 is redesignated as 970.5203-1. The text of paragraph (a) has been divided into paragraphs (a)(1) through (a)(4). The text of current paragraph (a) is unchanged except that paragraph (a)(2) contains new coverage to contractually implement the requirement that is already prescribed at current 970.0901(b)(10) (which is redesignated as 970.0371-1 in this rule), but which was not previously set forth in the clause. Paragraph (b) of the clause is unchanged

z

970.5203-2

N/A

Performance Improvement and Collaboration

Subsection is added for proposed new clause. The new clauses implement new DOE policy to facilitate collaboration of improvements in any aspect of performance among the contractor, DOE, and other major facility contractors

z

970.5203-3

970.5204-12

Contractor's Organization

970.5204-12 is redesignated as 970.5203-3. The clause is further amended to remove alternate paragraph (c) of the current clause, and to add a new paragraph (d) to the standard clause to contractually implement the requirements set forth in proposed new section 970.0371

z

970.5204-1

970.5204-1

Counterintelligence

970.5204-1 is redesignated as 970.5204-1 and the title and text revised. The section is revised to remove paragraph (a), which is unnecessarily duplicative of the prescription at DEAR 904.404 for the use of certain DEAR clauses. The coverage in paragraph (b) of the section is retained with technical and conforming amendments

z

970.5204-2

970.5204-78

Laws, Regulations, and DOE Directives

970.5204-78 is redesignated as 970.5204-2 and amended to add a new paragraph (d) to merge the substance of the clause at 970.5204-29 (which is proposed for removal), and to redesignated current paragraph (d) as paragraph (e). The clause is also revised to clarify applicability of requirements to subcontracts

z

970.5204-3

970.5204-79

Access to and Ownership of Records

970.5204-79 is redesignated as 970.5204-3. The clause is further amended in paragraph (b)(1) to recognize non-employee patient medical/health related records as property of the contractor, and to update a DOE directive reference in paragraph (f).

z

970.5208-1

970.5204-19

Printing

970.5204-19 is redesignated as 970.5208-1 and the title revised.

970.5209-1

970.5204-89

Requirement for Guarantee of Performance

970.5204-89 is redesignated as 970.5209-1.

970.5215-1

970.5204-54

Total Available Fee: Base Fee Amount and Performance Fee Amount

970.5204-54 is redesignated as 970.5215-1.

970.5215-2

970.5204-76

Make-or-Buy Plan

970.5204-76 is redesignated as 970.5215-2.

970.5215-3

970.5204-86

Conditional Payment of Fee, Profit, or Incentives

970.5204-86 is redesignated as 970.5215-3.

970.5215-4

970.5204-87

Cost Reduction

970.5204-87 is redesignated as 970.5215-4.

970.5215-5

970.5204-88

Limitation on Fee

970.5204-88 is redesignated as 970.5215-5.

970.5222-1

970.5204-63

Collective Bargaining Agreements—Management and Operating Contracts

970.5204-63 is redesignated as 970.5222-1.

970.5222-2

970.5204-80

Overtime Management

970.5204-80 is redesignated as 970.5222-2.

970.5223-1

970.5204-2

Integration of Environment, Safety and Health into Work Planning and Execution

970.5204-2 is redesignated as 970.5223-1. The clause is also revised to clarify applicability of requirements to subcontracts.

970.5223-2

970.5204-39

Acquisition and Use of Environmentally Preferable Products and Services

970.5204-39 is redesignated as 970.5223-2. The clause is amended in paragraph (a)(1) to update the reference to the applicable Executive Order.

970.5223-3

970.5204-57

Agreement Regarding Workplace Substance Abuse Programs at DOE Facilities

970.5204-57 is redesignated as 970.5223-3.

970.5223-4

970.5204-58

Workplace Substance Abuse Programs at DOE Sites

970.5204-58 is redesignated as 970.5223-4.

970.5226-1

970.5204-81

Diversity Plan

970.5204-81 is redesignated as 970.5226-1.

970.5226-2

970.5204-77

Workforce Restructuring under Section 3161 of the National Defense Authorization Act for Fiscal Year 1993

970.5204-77 is redesignated as 970.5226-2.

970.5227-1

970.5204-82

Rights in Data-Facilities

970.5204-82 is redesignated as 970.5227-1.

970.5227-2

970.5204-83

Rights in Data-Technology Transfer

970.5204-83 is redesignated as 970.5227-2.

970.5227-3

970.5204-40

Technology Transfer Mission

970.5204-40 is redesignated as 970.5227-3.

970.5228-1

970.5204-31

Insurance—Litigation and Claims

970.5204-31 is redesignated as 970.5228-1. The clause is also amended in paragraph (h) by removing the words “including employees” from the phrase “contractor's liabilities to third persons” for clarification and consistency with paragraphs (a) and (e)(2) of the clause.

z

970.5229-1

970.5204-23

State and Local Taxes

970.5204-23 is redesignated as 970.5229-1, and the title revised.

970.5231-1

970.5204-13

Allowable Costs and Fee (Management and Operating Contracts)

970.5204-13 is redesignated as 970.5231-1. Amended to convert the “Notes” to “Alternates.” The title is also amended to accommodate other types of fee (see Alternate I of the clause).

970.5231-2

970.5204-17

Political Activity Cost Prohibition

970.5204-17 is redesignated as 970.5231-2.

970.5231-3

970.5204-61

Cost Prohibitions Related to Legal and Other Proceedings

970.5204-61 is redesignated as 970.5231-3.

970.5231-4

970.5204-75

Preexisting Conditions

970.5204-75 is redesignated as 970.5231-4.

970.5232-1

970.5204-85

Reduction or Suspension of Advance, Partial, or Progress Payments upon Finding of Substantial Evidence of Fraud

970.5204-85 is redesignated as 970.5232-1.

970.5232-2

970.5204-16

Payments and Advances

970.5204-16 is redesignated as 970.5232-2. The clause is amended to convert the “Notes” to “Alternates.” The clause is also amended in paragraphs (b) and (e) and in paragraph (a) of Alternate II to update and conform the clause with the recently amended DOE fee policy (64 FR 12220)—e.g., update certain terms pertaining to fee, negotiated fixed amounts, and other items specifically approved by the contracting officer

z

970.5232-3

970.5204-9

Accounts, Records, and Inspection

970.5204-9 is redesignated as 970.5232-3. The clause is amended to convert the “Notes” to “Alternates.” The clause is also amended in paragraph (a) to address “negotiated fixed amounts”, which are authorized and frequently included in M&O contracts

z

970.5232-4

970.5204-15

Obligation of Funds

970.5204-15 is redesignated as 970.5232-4. Amended to convert the “Notes” to “Alternates.”

970.5235-1

N/A

Federally Funded Research and Development Center

Section is added to add a uniform clause to implement the requirements prescribed at 970.35

z

970.5236-1

970.5204-38

Government Facility Subcontract Approval

970.5204-38 is redesignated as 970.5236-1 and the title revised.

970.5237-1

970.5204-84

Waiver of Limitations on Severance Payments to Foreign Nationals

970.5204-84 is redesignated as 970.5237-1.

970.5237-2

970.5204-60

Facilities Management

970.5204-60 is redesignated as 970.5237-2.

970.5243-1

970.5204-11

Changes

970.5204-11 is redesignated as 970.5243-1.

970.5244-1

970.5204-22

Contractor Purchasing System

970.5204-22 is redesignated as 970.5244-1. Paragraph (a) is revised to provide for two alternative methods which may be used by the contracting officer for conducting periodic appraisals of the contractor's purchasing function. The clause is also amended to add paragraph (x), which incorporates certain coverage from 970.5204-44, which is proposed for removal in this rule. Amended coverage addresses subcontract flowdown requirements which are not otherwise required by the terms and conditions of the prime contract

z

970.5245-1

970.5204-21

Property

970.5204-21 is redesignated as 970.5245-1. Amended to convert the “Notes” to “Alternates.”

N/A

970.5204-3

Buy American Act—Construction Materials

Section is removed in favor of existing FAR coverage (FAR 52.225-5)

z

N/A

970.5204-4

New Mexico Gross Receipts and Compensating Tax

Section is removed. The prescription for modified text of FAR clause 52.229-10 is located at new 970.2904-1(a)

z

N/A

970.5204-5

Disclosure of Information

Section is removed in favor of existing DEAR coverage (DEAR 952.204-72)

z

N/A

970.5204-6

Nuclear Hazards Indemnity

Section is removed in favor of existing DEAR coverage (DEAR 952.250-70)

z

N/A

970.5204-7

Protecting the Government's Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment

Section is removed in favor of existing FAR coverage. (FAR 52.209-6)

z

N/A

970.5204-8

Indemnity Assurance to Architect-Engineer or Supplier Prior to Operation of a Nuclear Facility

Section is removed in favor of existing DEAR coverage (DEAR 952.250-70)

z

N/A

970.5204-10

Foreign Ownership, Control, or Influence over Contractors (FOCI)

Section is removed in favor of existing DEAR coverage (DEAR 952.204-73)

z

N/A

970.5204-14

Allowable Costs and Fixed-fee (Support Contracts)

Section is removed as obsolete

z

N/A

970.5204-25

Workmanship and Materials

Section is removed in favor of existing FAR coverage (FAR 52.211-5)

z

N/A

970.5204-27

Consultant or Other Comparable Employment Services of Contractor Employees

Section is removed pursuant to changes proposed to 970.2272 (redesignated as 970.0371) and 970.5204-12 (redesignated as 970.5203-3)

z

N/A

970.5204-28

Assignment

Section is removed in favor of existing FAR coverage (FAR 52.232-23 and 52.232-24)

z

N/A

970.5204-29

Permits or Licenses

Section is removed and the substance of the clause incorporated into new paragraph (d) of the clause at 970.5204-78 (redesignated as 970.5204-2)

z

N/A

970.5204-30

Notice of Labor Disputes

Section is removed in favor of existing FAR coverage (FAR 52.222-1)

z

N/A

970.5204-33

Priorities and Allocations

Section is removed in favor of existing DEAR coverage (DEAR 952.211-71)

z

N/A

970.5204-35

Controls in the National Interest (Unclassified Contracts with Educational Institutions)

Section is removed in favor of existing DEAR coverage (see DEAR 970.5204-78, redesignated as 970.5204-2 in this rule)

z

N/A

970.5204-36

Preventing Conflicts of Interest in University Research

Section is removed as obsolete

z

N/A

970.5204-37

Statement of Work (Management and Operating Contracts)

Section is removed as obsolete

z

N/A

970.5204-42

Key Personnel

Section is removed pursuant to the consolidation of the clauses at 952.235-70 and 970.5204-42 into a single clause, as proposed in this rule

z

N/A

970.5204-43

Other Government Contractors

Section is removed in favor of existing FAR coverage (FAR 52.236-8); see proposed new subsection 970.3605-1

z

N/A

970.5204-44

Flowdown of Contract Requirements to Subcontracts

Section is removed as unnecessary. Certain portions of the coverage in this section are incorporated into 970.5204-22, redesignated as 970.5244-1 in this rule

z

N/A

970.5204-45

Termination

Section is removed in favor of existing FAR coverage (FAR 52.249-6)

z

N/A

970.5204-52

Foreign Travel

Section is removed in favor of existing DEAR coverage (DEAR 952.247-70)

z

N/A

970.5204-53

Contractor Employee Travel Discounts

Section is removed in favor of existing DEAR coverage (DEAR 952.251-70)

z

952.203-70

970.5204-59

Whistleblower Protection for Contractor Employees

Section 970.5204-59 is redesignated as 952.203-70

z

N/A

970.5204-71

Patent Rights-nonprofit Management and Operating Contractors

Section is removed pursuant to amendments to 927.303 and 952.227-11 proposed in this rule

z

N/A

970.5204-72

Patent Rights-profit-making Management and Operating Contractors

Section is removed pursuant to amendments to 927.303 and 952.227-13 proposed in this rule

z

N/

A970.5204-73

Notice Regarding Options

Section is removed in favor of existing FAR coverage (FAR 52.217-9)

z

N/A

970.5204-74

Option to Extend the Term of the Contract

Section is removed in favor of existing FAR coverage (FAR 52.217-9)

z

III. Public Comments

The amendments proposed in this rulemaking constitute primarily technical and conforming changes resulting from the reorganization of Part 970 and the elimination of coverage determined to be obsolete or unnecessarily duplicative of other governing regulations. Because these amendments involve extensive changes to the composition of the existing regulation, Part 970 is being republished, in its entirety, for the convenience of the reader. This rule also proposes to amend the text of several clauses and add material in order to ensure that uniform DOE policies and procedures are prescribed for certain issues. Interested persons are invited to submit comments regarding the proposed reorganization and numbering system for Part 970. Comments are also solicited regarding those amendments described in Section II., Section by Section Analysis, paragraphs 1. through 25., and to those amendments addressed in the table contained in paragraph 26., which are marked with a “

✔

”

Three copies of written comments should be submitted to the address indicated in the

ADDRESSES

section of this notice. All comments received will be available for public inspection in the DOE Reading Room, Room lE-190, Forrestal Building, 1000 Independence Avenue, SW., Washington, D.C. 20585, between the hours of 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. All written comments received by the date indicated in the “

DATES

” section of this notice and all other relevant information in the record will be carefully assessed and fully considered prior to publication of the final rule. Any information considered to be confidential must be so identified and submitted in writing, one copy only. DOE reserves the right to determine the confidential status of the information and to treat it according to our determination (See 10 CFR 1004.11).

The Department has concluded that this proposed rule does not involve a substantial issue of fact or law and that the proposed rule should not have substantial impact on the nation's economy or a large number of individuals or businesses. Therefore, pursuant to Public Law 95-91, the DOE Organization Act, and the Administrative Procedure Act (5 U.S.C. 553), the Department does not plan to hold a public hearing on this proposed rule.

IV. Procedural Requirements

A. Review Under Executive Order 12866

Today's regulatory action has been determined not to be a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Accordingly, this action was not subject to review under that Executive Order by the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB).

B. Review Under Executive Order 12988

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. The Department of Energy has completed the required review and determined that, to the extent permitted by law, the proposed regulation meets the relevant standards of Executive Order 12988.

C. Review Under the Regulatory Flexibility Act

This proposed rule was reviewed under the Regulatory Flexibility Act, 5 U.S.C. 601

et seq.

, which requires preparation of a regulatory flexibility analysis for any rule which is likely to have significant economic impact on a substantial number of small entities. Today's proposed rule streamlines the Department's policies, procedures, provisions and clauses that apply to its M&O contracts. M&O contractors are not small entities. Accordingly, DOE certifies that this proposed regulation will not have a significant economic impact on a substantial number of small entities, and, therefore, no regulatory flexibility analysis has been prepared.

D. Review Under the Paperwork Reduction Act

No new information or recordkeeping requirements are imposed by this rulemaking. Accordingly, no OMB clearance is required under the Paperwork Reduction Act (44 U.S.C. 3501

et seq.

).

E. Review Under the National Environmental Policy Act

DOE has concluded that promulgation of this proposed rule falls into a class of actions which would not individually or cumulatively have significant impact on the human environment, as determined by DOE's regulations (10 CFR Part 1021, Subpart D) implementing the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321

et seq.

). Specifically, this rule is categorically excluded from NEPA review because the proposed amendments to the DEAR do not change the environmental effect of the rule being amended (categorical exclusion A5). Therefore, this proposed rule does not require an environmental impact statement or environmental assessment pursuant to NEPA.

F. Review Under Executive Order 12612

Executive Order 12612 (52 FR 41685, October 30, 1987) requires that regulations, rules, legislation, and any other policy actions be reviewed for any substantial direct effects on States, on the relationship between the National Government and the States, or in the distribution of power and responsibilities among the various levels of Government. If there are sufficient substantial direct effects, then the Executive Order requires the preparation of a federalism assessment to be used in all decisions involved in promulgating and implementing a policy action. This proposed rule, when finalized, will revise certain policy and procedural requirements. States which contract with DOE will be subject to this rule. However, DOE has determined that this rule will not have a substantial direct effect on the institutional interests or traditional functions of the States.

G. Review Under the Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires a Federal agency to perform a detailed assessment of costs and benefits of any rule imposing a Federal Mandate with costs to state, local or tribal governments, or to the private sector, of $100 million or more. This rulemaking affects private sector entities, and the impact is less than $100 million.

H. Review Under the Treasury and General Government Appropriations Act, 1999

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. No. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule or policy that may affect family well-being. Today's proposal would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

List of Subjects in 48 CFR Parts 901, 902, 903, 904, 909, 911, 915, 917, 922, 923, 927, 941, 942, 947, 952 and 970.

Government procurement.

Issued in Washington, D.C. on February 15, 2000.

Richard H. Hopf,

Director, Office of Procurement and Assistance Management.

For the reasons set out in the preamble, Chapter 9 of Title 48 of the Code of Federal Regulations is proposed to be amended as set forth below.

1. The authority citations for parts 901, 902, 903, 904, 909, 911, 915, 917, 922, 923, 941, 942, 947 and 952 continue to read as follows:

Authority:

42 U.S.C. 7254; 40 U.S.C. 486(c).

PART 901—FEDERAL ACQUISITION REGULATIONS SYSTEM

901.105

[Amended]

2. Section 901.105 is amended in the second sentence by revising “(see 48 CFR (DEAR) 970.5204-76)” to read “(see 48 CFR 970.5215-2)”, and revising “(see 48 CFR (DEAR) 970.5204-2)” to read “(see 48 CFR 970.5223-1).”

PART 902—DEFINITIONS OF WORDS AND TERMS

3. Section 902.200 is revised to read as follows:

902.200

Definitions clause.

As prescribed by 48 CFR subpart 2.2, insert the clause at 48 CFR 52.202-1, Definitions, but modify the clause to limit the definition at paragraph (a) 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 at the end of the clause that defines “DOE” as meaning the United States Department of Energy and “FERC” as meaning the Federal Energy Regulatory Commission. Additional definitions may be included, provided they are consistent with the clause, the Federal Acquisition Regulation and this Department of Energy Acquisition Regulation.

PART 903—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

4. Subpart 903.9 is added to read as follows:

Subpart 903.9—Whistleblower Protection for Contractor Employees

Sec.

903.901

Scope.

903.902

Definition.

903.903

Applicability

903.970

Remedies

903.971

Contract clause.

Subpart 903.9—Whistleblower Protection for Contractor Employees

903.901

Scope.

This subpart implements the DOE Contractor Employee Protection Program as set forth at 10 CFR part 708. Part 708 establishes criteria and procedures for the investigation, hearing, and review of allegations from DOE contractor employees of employer reprisal resulting from employee disclosure of information to DOE, to members of Congress, or to the contractor; employee participation in proceedings before Congress or pursuant to this rule; or employee refusal to engage in illegal or dangerous activities, when such disclosure, participation, or refusal pertains to employer practices which the employee believes to be unsafe; to violate laws, rules, or regulations; or to involve fraud, mismanagement, waste, or abuse.

903.902

Definition.

Contractor

, as used in this subject, has the meaning contained in 10 CFR 708.2

903.903

Applicability.

10 CFR part 708 is applicable to complaints of retaliation filed by employees of contractors, and subcontractors, performing work on behalf of DOE directly related to DOE-owned or leased facilities, if the complaint stems from a disclosure, participation, or refusal described in 10 CFR 708.5.

903.970

Remedies.

(a) Contractors found to have retaliated against an employee in reprisal for such disclosure, participation or refusal are required to provide relief in accordance with decisions issued under 10 CFR part 708.

(b) 10 CFR part 708 provides that for the purposes of the Contract Disputes Act (41 U.S.C. 605 and 606), a final decision issued pursuant to 10 CFR part 708 shall not be considered to be a claim by the Government against a contractor or a decision by the contracting officer subject to appeal. However, a contractor's disagreement and refusal to comply with a final decision could result in a contracting officer's decision to disallow certain costs or to terminate the contract for default. In such case, the contractor could file a claim under the Disputes clause of the contract regarding the disallowance of cost or the termination of the contract.

903.971

Contract clause.

The contracting officer shall insert the clause at 952.203-70, Whistleblower Protection for Contractor Employees, in management and operating contracts.

PART 904—ADMINISTRATIVE MATTERS

5. Subpart 904.72 is added as follows:

Subpart 904.72—Public Affairs

Sec.

904.7200

Purpose.

904.7201

Contract clause.

904.7200

Purpose.

It is the policy of the Department of Energy to provide to the public and the news media, accurate and timely unclassified information on Departmental policies, programs, and activities. The Department's contractors share the responsibility for releasing unclassified information related to efforts under their contracts and must coordinate the release of unclassified information with the cognizant contracting officer and appropriate DOE Public Affairs personnel.

904.7201

Contract clause.

The contracting officer shall insert the clause at 952.204-75 in solicitations and contracts that require the contractor to release unclassified information related to efforts under its contract regarding DOE policies, programs, and activities.

PART 909—CONTRACTOR QUALIFICATIONS

6. Subsection 909.104-1 is amended by revising “48 CFR 970.5204-57” to read “48 CFR 970.5223-3.”

PART 911—DESCRIBING AGENCY NEEDS

7. Section 911.604 is amended by revising paragraphs (d) and (e) to read as follows:

911.604

Solicitation provision and contract clause.

(d) The contracting officer shall insert the provision at 952.211-70, Priorities and Allocations (Domestic Energy Supplies), with its Alternate I, in solicitations that may result in the placement of rated orders for authorized energy programs, and in all management and operating contracts.

(e) The contracting officer shall insert the clause at 952.211-71, Priorities and Allocations (Domestic Energy Supplies), with its Alternate I, if it is believed the contract involves a program the purpose of which is to maximize domestic energy supplies, and in all management and operating contracts.

PART 915—CONTRACTING BY NEGOTIATION

8. Subsection 915.408-70 is added to read as follows:

915.408-70

Solicitation provision and contract clause.

The contracting officer shall insert the clause at 48 CFR 952.215-70, Key Personnel, in contracts under which performance is largely dependent on the expertise of specific key personnel.

PART 917—SPECIAL CONTRACTING METHODS

9. Section 917.600 is revised to read as follows:

917.600

Scope of subpart.

(a) This subpart implements 48 CFR subpart 17.6, Management and Operating Contracts. Departmental policies, procedures, provisions and clauses to be used in the award and administration of management and operating contracts that either implement or supplement the Federal Acquisition Regulation and parts 901 through 952 of this Chapter are contained in 48 CFR part 970.

(b) The requirements of this subpart apply to any Department of Energy management and operating contract, including performance-based management contracts as defined in 48 CFR 917.601. References in this Subpart to “management and operating contracts” include performance-based management contracts.

10. Section 917.601 is amended by revising the definition of performance-based contracting as follows:

917.601

Definitions.

Performance-based contracting

has the meaning contained in 48 CFR 37.101.

11. Section 917.602 is revised to read as follows:

917.602

Policy.

(a) The use of a management and operating contract must be authorized by the Secretary, Deputy Secretary or Under Secretary.

(b) It is the policy of the Department of Energy to provide for full and open competition in the award of management and operating contracts, including performance-based management contracts.

(c) A management and operating contract may be awarded or extended at the completion of its term without providing for full and open competition only when such award or extension is justified under one of the statutory authorities identified in 48 CFR 6.302 and only when authorized by the Head of the Agency. Documentation and processing requirements for justifications for the use of other that full and open competition shall be accomplished in accordance with internal agency procedures

917.604 and 917.605

[Removed]

12. Sections 917.604 and 917.605 are removed.

PART 922—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION

922.71

[Removed]

13. Subpart 922.71 is removed.

PART 923—ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY AND DRUG-FREE WORKPLACE

923.570-2

[Amended]

14. Subsection 923.570-2 is amended in paragraph (a) by revising “48 CFR 970.5204-57” to read “48 CFR 970.5223-3”; and in paragraph (b) by revising “970.5204-58” to read “48 CFR 970.5223-4.”

923.570-3

[Amended]

15. Subsection 923.570-3 is amended in paragraph (a) by revising “970.5204-58” to read “48 CFR 970.5223-4”, and in paragraph (b)(2) by revising “970.5204-57” to read “970.5223-3.”

PART 927—PATENTS, DATA, AND COPYRIGHTS

16. The authority citation for part 927 continues to read as follows:

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.).

17. Section 927.303 is amended by revising paragraph (a) to read as follows:

927.30

Contract clauses.

(a) In solicitations and contracts for experimental, research, developmental, or demonstration work (but see 48 CFR 27.304-3 regarding contracts for construction work or architect-engineer services), and all management and operating contracts, the contracting officer shall include the following clauses:

(1) Insert the clause at 48 CFR 952.227-11, Patent Rights by the Contractor (Short Form), in contracts in which the contractor is a domestic small business or nonprofit organization as defined at 48 CFR 27.301, except where the work of the contract is subject to an Exceptional Circumstances Determination by DOE. In contracts with nonprofit entities for the management and operation of DOE laboratories and production facilities, the contracting officer shall insert the clause with its Alternate I.

(2) Insert the clause at 48 CFR 952.227-13, Patent Rights Acquisition by the Government, in all contracts other than those described in paragraph (a)(1) of this section. In contracts with profit-making entities for the management and operation of DOE laboratories and production facilities, the contracting officer shall insert the clause with its Alternate I.

927.402-1

[Amended]

18. Subsection 927.402-1 is amended in paragraph (b) by revising “(see 970.2705)” to read “(see 48 CFR 970.2704)”, and by revising “970.5204-82” to read “48 CFR 970.5227-1.”

927.404

[Amended]

19. Section 927.404 is amended in paragraph (g)(4) by revising “970.5204-82” to read “48 CFR 970.5227-2.”

20. Section 927.409 is amended in paragraph (a)(2)(vi) by revising “(See 970.2705)” to read “(see 48 CFR 970.2704).”

PART 935—RESEARCH AND DEVELOPMENT CONTRACTING

935.070

[Removed]

21. Section 935.070 is removed.

PART 941—ACQUISITION OF UTILITY SERVICES

22. Subsection 941.201-71 is amended by revising “48 CFR 970.0803” to read “48 CFR 970.4102-1.”

PART 942—CONTRACT ADMINISTRATION

23. Subpart 942.2 is added as follows:

Subpart 942.2—Contract Administration Services

9427.2-1

Contract Administration Services.

942.270-1

Contracting officer's representatives.

In accordance with internal agency procedures, a contracting officer may designate other qualified personnel to be the Contracting Officer's Representative (COR) for the purpose of performing certain technical functions in administering a contract. These functions include, but are not limited to, technical monitoring, inspection, approval of shop drawings, testing, and approval of samples. The COR acts solely as a technical representative of the contracting officer and is not authorized to perform any function that results in a change in the scope, price, terms or conditions of the contract. COR designations must be made in writing by the contracting officer, and shall identify the responsibilities and limitations of the designation. A copy of the COR designation must be furnished to the contractor and the contract administration office.

942.270-2

Contract clause.

The clause at 952.242-70 may be inserted in solicitations and contracts when a designated Contracting Officer's Representative will issue technical direction to the contractor under the contract.

PART 947—TRANSPORTATION

24. Subpart 947.70 is added to read as follows:

Subpart 947.70—Foreign Travel

Sec.

947.7000

Definition.

947.7001

Policy.

947.7002

Contract clause.

947.70—Foreign Travel

947.7000

Definition.

Foreign travel,

for purposes of this subpart, means any travel outside of Canada, Mexico and the United States and its territories and possessions.

947.7001

Policy.

Prior approval of the contracting officer is required by the contractor when foreign travel by contractor personnel will be charged directly to a DOE contract. Such approval shall be required for each separate trip regardless of whether funds for such travel are contained in an approved budget.

947.7002

Contract clause.

When foreign travel may be required under the contract, the contracting officer shall insert the clause at 48 CFR 952.247-70, Foreign Travel.

PART 952—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

25. Section 952.203-70 is added to read as follows:

952.203-70

Whistleblower protection for contractor employees.

As prescribed in 48 CFR 903.971, insert the following clause:

Whistleblower Protection for Contractor Employees (Month and Year TBE)

(a) The contractor shall comply with the requirements of “DOE Contractor Employee Protection Program” at 10 CFR part 708 for work performed on behalf of DOE directly related to activities at DOE-owned or -leased sites.

(b) The contractor shall insert or have inserted the substance of this clause, including this paragraph (b), in subcontracts at all tiers, for subcontracts involving work performed on behalf of DOE directly related to activities at DOE-owned or -leased sites.

(End of Clause)

26. Section 952.204-75 is added as follows:

952.204-75

Public affairs.

As prescribed in 48 CFR 904.7201, insert the following clause.

Public Affairs (Month and Year TBE)

(a) The Contractor must cooperate with the Department in releasing unclassified information to the public and news media regarding DOE policies, programs, and activities relating its effort under the contract. The responsibilities under this clause must be accomplished through

coordination with the Contracting Officer and appropriate DOE public affairs personnel.

(b) The Contractor is responsible for the development, planning, and coordination of proactive approaches for the timely dissemination of unclassified information regarding DOE activities onsite and offsite, including, but not limited to, operations and programs. Proactive public affairs programs may utilize a variety of communication media, including public workshops, meetings or hearings, open houses, newsletters, press releases, conferences, audio/visual presentations, speeches, forums, tours, and other appropriate stakeholder interactions.

(c) The Contractor's internal procedures must ensure that all releases of information to the public and news media are coordinated through, and approved by, a management official at an appropriate level within the Contractor's organization.

(d) The Contractor must comply with established DOE procedures for obtaining advance clearances on all oral, written, and audio/visual informational material prepared for public dissemination or use.

(e) Unless prohibited by law, the Contractor must notify the Contracting Officer and appropriate DOE public affairs personnel of any communications or contacts with Members of Congress relating to the effort performed under the contract.

(f) The Contractor must notify the Contracting Officer and appropriate DOE public affairs personnel of any activities or situations that may attract regional or national news media attention and of non-routine inquiries from national news media relating to the effort performed under the contract.

(g) In releases of information to the public and news media, the Contractor must fully and accurately identify the Contractor's relationship to the Department and fully and accurately credit the Department for its role in funding programs and projects resulting in scientific, technical, and other achievements.

27. Section 952.215-70 is added as follows:

952.215-70

Key Personnel.

As prescribed in 48 CFR 915.408-70(a), the contracting officer shall insert the following clause:

Key Personnel (Month and Year TBE)

(a) The personnel listed below or elsewhere in this contract [Insert cross-reference, if applicable] are considered essential to the work being performed under this contract. Before removing, replacing, or diverting any of the listed or specified personnel, the Contractor must: (1) Notify the Contracting Officer reasonably in advance; (2) submit justification (including proposed substitutions) in sufficient detail to permit evaluation of the impact on this contract; and (3) obtain the Contracting Officer's written approval.

(b) The list of personnel may, with the consent of the contracting parties, be amended from time to time during the course of the contract to add or delete personnel.

[Insert List of Key Personnel unless listed elsewhere in the contract]

(End of clause)

952.222-70

[Removed]

28. Section 952.222-70 is removed.

952.223-71

[Removed]

29. Section 952.223-71 is amended by revising “970.5204-2” to read “48 CFR 970.5223-1.”

30. Section 952.227-11 is amended by revising the prescription and clause date, and adding Alternate I as follows:

952.227-11

Patent rights—retention by the contractor (short form).

As prescribed in 48 CFR 927.303(a)(1), the contracting officer shall insert the following clause:

Patent Rights—Retention by the Contractor (Short Form) (Month and Year TBE)

Alternate I (Month and Year TBE). As prescribed in 48 CFR 927.303(a)(1), replace paragraph (e)(1) with the following paragraph (e)(1), and add the following paragraphs (m) and (n):

(e)(1) The contractor may request the right to reserve a revocable, 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 invention within the times specified in paragraph (c) of this clause. When DOE approves such reservation, the contractor's license will extend to its domestic subsidiaries and affiliates, if any, within the corporate structure of which the contractor is a party 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.

(m) Transfer to successor contractor. (1) In the event of termination or expiration of this contract, the contractor shall transfer any unexpended balance of income received relating to intellectual property, in accordance with instructions from the contracting officer, to a successor contractor, or in the absence of a successor contractor, to such other entity as designated by the contracting officer. The contractor shall also transfer title, as one package, in all patents and patent applications, license agreements, accounts containing royalty revenues from such license agreements, including equity positions in third-party entities, and other intellectual property that arose under the performance of this contract, to the successor contractor or to the Government, as directed by the contracting officer. (2) The Government agrees that the recipient of such title shall assume any remaining obligations and liabilities in connection with the patents and patent applications.

(n) Facilities license. In addition to the rights of the parties with respect to inventions or discoveries conceived or first actually reduced to practice in the course of or under this contract, the contractor agrees to and does hereby grant to the Government an irrevocable, nonexclusive, paid-up license in and to any inventions or discoveries regardless of when conceived or actually reduced to practice or acquired by the contractor at any time through completion of this contract and which are incorporated or embodied in the construction of the facility or which are utilized in the operation of the facility or which cover articles, materials, or products manufactured at the facility (1) to practice or have practiced by or for the Government at the facility, and (2) to transfer such license with the transfer of that facility. The acceptance or exercise by the Government of these rights shall not prevent the Government at any time from contesting the enforceability, validity or scope of, or title to, any rights or patents herein licensed.

31. Section 952.227-13 is amended by revising the prescription and clause date, and adding Alternate I as follows:

952.227-13

Patent rights—acquisition by the Government.

As prescribed in 48 CFR 927.303(a)(2), the contracting officer shall insert the following clause:

Patent Rights—Acquisition by the Government (Month and Year TBE)

Alternate I (Month and Year TBE). As prescribed in 48 CFR 927.303(a)(2), add the following paragraphs (j) and (k):

(j) Transfer to successor contractor. (1) In the event of termination or expiration of this contract, the contractor shall transfer any unexpended balance of income received relating to intellectual property, in accordance with instructions from the contracting officer, to a successor contractor, or in the absence of a successor contractor, to such other entity as designated by the contracting officer. The contractor shall also transfer title, as one package, in all patents and patent applications, license agreements, accounts containing royalty revenues from such license agreements, including equity positions in third-party entities, and other intellectual property that arose under the performance of this contract, to the successor contractor or to the Government, as directed by the contracting officer.

(2) The Government agrees that the recipient of such title shall assume any remaining obligations and liabilities in connection with the patents and patent applications.

(k) Facilities License. In addition to the rights of the parties with respect to inventions or discoveries conceived or first actually reduced to practice in the course of or under this contract, the contractor agrees to and does hereby grant to the Government an irrevocable, nonexclusive, paid-up license in and to any inventions or discoveries regardless of when conceived or actually reduced to practice or acquired by the contractor at any time through completion of this contract and which are incorporated or embodied in the construction of the facility or which are utilized in the operation of the facility or which cover articles, materials, or products manufactured at the facility (1) to practice or have practiced by or for the

Government at the facility, and (2) to transfer such license with the transfer of that facility. The acceptance or exercise by the Government of these rights shall not prevent the Government at any time from contesting the enforceability, validity or scope of, or title to, any rights or patents herein licensed.

32. Section 952.242-70 is added as follows:

952.242-70

Technical Direction

As prescribed in 48 CFR 942.270-2, insert the following clause.

Technical Direction (Month and Year TBE)

(a) Performance of the work under this contract shall be subject to the technical direction of the DOE Contracting Officer's Representative (COR). The term “technical direction” is defined to include, without limitation:

(1) Providing direction to the contractor that redirects contract effort, shift work emphasis between work areas or tasks, require pursuit of certain lines of inquiry, fill in details, or otherwise serve to accomplish the contractual Statement of Work.

(2) Providing written information to the contractor that assists in interpreting drawings, specifications, or technical portions of the work description.

(3) Reviewing and, where required by the contract, approving, technical reports, drawings, specifications, and technical information to be delivered by the contractor to the Government.

(b) The contractor will receive a copy of the written COR designation from the contracting officer. It will specify the extent of the COR's authority to act on behalf of the contracting officer.

(c) Technical direction must be within the scope of work stated in the contract. The COR does not have the authority to, and may not, issue any technical direction that:

(1) Constitutes an assignment of additional work outside the Statement of Work;

(2) Constitutes a change as defined in the contract clause entitled “Changes;”

(3) In any manner causes an increase or decrease in the total estimated contract cost, the fee (if any), or the time required for contract performance;

(4) Changes any of the expressed terms, conditions or specifications of the contract; or

(5) Interferes with the contractor's right to perform the terms and conditions of the contract.

(d) All technical direction shall be issued in writing by the COR.

(e) The contractor must proceed promptly with the performance of technical direction duly issued by the COR in the manner prescribed by this clause and within its authority under the provisions of this clause. If, in the opinion of the contractor, any instruction or direction by the COR falls within one of the categories defined in (c)(1) through (c)(5) of this clause, the contractor must not proceed and must notify the Contracting Officer in writing within five (5) working days after receipt of any such instruction or direction and must request the Contracting Officer to modify the contract accordingly. Upon receiving the notification from the contractor, the Contracting Officer must:

(1) Advise the contractor in writing within thirty (30) days after receipt of the contractor's letter that the technical direction is within the scope of the contract effort and does not constitute a change under the Changes clause of the contract; or

(2) Advise the contractor in writing within a reasonable time that the Government will issue a written change order.

(f) A failure of the contractor and Contracting Officer either to agree that the technical direction is within the scope of the contract or to agree upon the contract action to be taken with respect to the technical direction will be subject to the provisions of the clause entitled “Disputes.”

(End of Clause)

33. Section 952.247-70 is amended by revising the prescription to read as follows:

952.247-70

Foreign travel.

As prescribed in 48 CFR 947.7002, insert the following clause:

952.250-70

[Amended]

34. Section 952.250-70 is amended in paragraph (h) by revising “Audit and records—Negotiation”, to read “Accounts, records, and inspection.”

35. The authority citation for Part 970 continues to read as follows:

Authority:

Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C. 2201), sec. 644 of the Department of Energy Organization Act, Public Law 95-91 (42 U.S.C. 7254).

36. Part 970 is revised to read as follows:

PART 970—DOE MANAGEMENT AND OPERATING CONTRACTS

Sec.

Subpart 970.01—Management and Operating Contract Regulatory System

970.0100

Scope of part.

970.0103

Publication and codification.

Subpart 970.03—Improper Business Practices and Personal Conflicts of Interest

970.0309

Whistleblower protection of contractor employees.

970.0309-1

Applicability.

970.0370

Management controls and improvements.

970.0370-1

Policy.

970.0370-2

Contract clause.

970.0371

Conduct of employees of DOE management and operating contractors.

970.0371-1

Scope of section.

970.0371-2

Applicability.

970.0371-3

Definition.

970.0371-4

Gratuities.

970.0371-5

Use of privileged information.

970.0371-6

Incompatibility between regular duties and private interests.

970.0371-7

Outside employment of contractor employees.

970.0371-8

Employee disclosure concerning other employment services.

970.0371-9

Contract clause.

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

Solicitation provision and contract clauses.

970.0407

Contractor records retention.

970.0407-1

Applicability.

970.0407-1-1

Alternate retention schedules.

970.0407-1-2

Access to and ownership of records.

970.0407-1-3

Contract clause.

970.0470

Department of Energy directives.

970.0470-1

General.

970.0470-2

Contract clause.

Subpart 970.08—Required Sources of Supplies and Services

970.0801

Excess personal property.

970.0801-1

Policy.

970.0808

Acquisition of printing.

970.0808-1

Scope of section.

970.0808-2

Policy.

970.0808-3

Contract clause.

Subpart 970.09—Contractor Qualifications

970.0905

Organizational conflicts of interest.

970.0970

Performance guarantees.

970.0970-1

Determination of responsibility.

970.0970-2

Solicitation provision.

Subpart 970.11—Describing Agency Needs

970.1100

Policy.

970.1100-1

Performance-based contracting.

970.1100-2

Additional considerations.

Subpart 970.15—Contracting by Negotiation

970.1504

Contract pricing.

970.1504-1

Price analysis.

970.1504-1-1

Fees for management and operating contracts.

970.1504-1-2

Fee policy.

970.1504-1-3

Special considerations: Laboratory management and operation.

970.1504-1-4

Types of contracts and fee arrangements.

970.1504-1-5

General considerations and techniques for determining fixed fees.

970.1504-1-6

Calculating fixed fee.

970.1504-1-7

Fee base.

970.1504-1-8

Special equipment purchases.

970.1504-1-9

Special considerations: Cost-plus-award-fee.

970.1504-1-10

Special considerations: Fee limitations.

970.1504-1-11

Documentation.

970.1504-2

Price negotiation.

970.1504-3

Documentation.

970.1504-3-1

Cost or pricing data.

970.1504-4

Special cost or pricing areas.

970.1504-4-1

Make-or-Buy Plans.

970.1504-4-2

Policy.

970.1504-4-3

Requirements.

970.1504-5

Solicitation provision contract clauses.

Subpart 970.17—Special Contracting Methods

970.1706

Management and operating contracts.

970.1706-1

Award, renewal, and extension.

970.1706-2

Contract clause.

Subpart 970.19—Small, Small Disadvantaged and Women-Owned Small Business Concerns

970.1907

Subcontracting with Small Business, Small Disadvantaged Business and Woman-owned Small Business Concerns.

970.1907-1

Subcontracting plan requirements.

Subpart 970.22—Application of Labor Policies

970.2200

Scope of subpart.

970.2201

Basic labor policies.

970.2201-1

Labor relations.

970.2201-1-1

General.

970.2201-1-2

Policies.

970.2201-1-3

Contract clause.

970.2201-2

Overtime management.

970.2201-2-1

Policy.

970.2201-2-2

Contract clause.

970.2204

Labor standards for contracts involving construction.

970.2204-1

Statutory and regulatory requirements.

970.2204-1-1

Administrative controls and criteria for application of the Davis-Bacon Act in operational or maintenance activities.

970.2208

Equal employment opportunity.

970.2210

Service Contract Act.

970.2270

Unemployment compensation.

Subpart 970.23—Environmental, Conservation, and Occupational Safety Programs

970.2303

Hazardous materials identification and material safety.

970.2303-1

General.

970.2303-2

Contract clauses.

970.2304

Use of recovered/recycled materials.

970.2304-1

General.

970.2304-2

Contract clause.

970.2305

Workplace substance abuse programs—management and operating contracts.

970.2305-1

General.

970.2305-2

Applicability.

970.2305-3

Definitions.

970.2305-4

Solicitation provision and contract clause.

970.2306

Suspension of payments, termination of contract, and debarment and suspension actions.

Subpart 970.26—Other Socioeconomic Programs

970.2670

Implementation of section 3021 of the Energy Policy Act of 1992.

970.2670-1

Requirements.

970.2671

Diversity.

970.2671-1

Policy.

970.2671-2

Contract clause.

970.2672

Implementation of section 3161 of the National Defense Authorization Act for Fiscal Year 1993.

970.2672-1

Policy.

970.2672-2

Requirements.

970.2672-3

Contract clause.

970.2673

Regional partnerships.

970.2673-1

Policy.

970.2673-2

Contract clause.

Subpart 970.27—Patents, Data, and Copyrights

970.2701

General.

970.2701-1

Applicability.

970.2703

Patent rights.

970.2703-1

Policy.

970.2703-2

Contract clauses.

970.2704

Rights in data.

970.2704-1

General.

970.2704-2

Procedures.

970.2704-3

Contract clauses.

970.2770

Technology transfer.

970.2770-1

General.

970.2770-2

Policy.

970.2770-3

Technology transfer and patent rights.

970.2770-4

Contract clause.

Subpart 970.28—Bonds and Insurance

970.2803

Insurance.

970.2803-1

Workers' compensation insurance.

970.2803-2

Contract clause.

Subpart 970.29—Taxes

970.2902

Federal Excise Taxes.

970.2902-1

Exemptions from Federal Excise Taxes.

970.2903

State and Local Taxes.

970.2903-1

Applicability of State and Local Taxes to the Government.

970.2904

Contract clauses.

970.2904-1

Management and operating contracts.

Subpart 970.30—Cost Accounting Standards

970.3002 CAS

Program Requirements.

970.3002-1

Applicability.

970.3002-2

Limitations.

Subpart 970.31—Contract Cost Principles and Procedures

970.3100

Scope of Subpart.

970.3100-1

Definitions

970.3100-2

Responsibilities.

970.3101

Applicability.

970.3101-1

Objectives.

970.3101-2

Advance agreements.

970.3101-3

Cost certification and penalties on unallowable costs.

970.3102

Contracts with Management and Operating Contractors.

970.3102-1

General.

970.3102-1-1

Actual Cost Basis.

970.3102-1-2

Application of Cost Principles.

970.3102-1-3

General Basis for Reimbursement of Costs.

970.3102-1-4

Cost Determination Based on Audit.

970.3102-1-5

Contractor's System of Accounting.

970.3102-2

Direct and Indirect Costs.

970.3102-3

Selected Costs.

970.3102-3-1

Public Relations and Advertising.

970.3102-3-2

Compensation for Personal Services.

970.3102-3-3

Cost of Money.

970.3102-3-4

Depreciation.

970.3102-3-5

Employee Morale, Health, Welfare, Food Service, and Dormitory Costs.

970.3102-3-6

Fines, Penalties, and Mischarging Costs.

970.3102-3-7

Lobbying and Political Activity Costs.

970.3102-3-8

General and Administrative Expenses.

970.3102-3-9

Plant Reconversion Costs.

970.3102-3-10

Precontract Costs.

970.3102-3-11

Professional and Consultant Service Costs.

970.3102-3-12

Relocation Costs.

970.3102-3-13

Trade, Business, Technical and Professional Activity Costs.

970.3102-3-14

Travel Costs.

970.3102-3-15

Cost Related to Legal and Other Proceedings.

970.3102-3-16

Overtime, Shift and Holiday Premiums.

970.3102-3-17

Page Charges in Scientific Journals.

970.3102-3-18

Preparatory and Make-Ready Costs.

970.3102-3-19

Facilities (Plant and Equipment).

970.3102-3-20

Special Funds in the Construction Industry.

970.3102-3-21

Procurement: Subcontracts, Contractor-Affiliated Sources, and Leases.

970.3170

Contract Clauses.

Subpart 970.32—Contract Financing

970.3200

Policy.

970.3200-1

Reduction or Suspension of Advance, Partial, or Progress Payments.

970.3200-1-1

Contract Clause.

970.3204

Advance Payments.

970.3204-1

Applicability.

970.3204-2

Special Bank Account Agreement.

970.3204-3

Contract clause.

970.3270

Standard Financial Management Clauses.

Subpart 970.34—Major System Acquisition

970.3400

General Requirements.

970.3400-1

Mission-oriented Solicitation.

Subpart 970.35—Research and Development Contracting

970.3500

Scope of Subpart

970.3501

Federally Funded Research and Development Centers.

970.3501-1

Sponsoring Agreements.

970.3501-2

Using an FFRDC.

970.3501-3

Reviewing FFRDC's.

970.3501-4

Contract Clause.

Subpart 970.36—Construction and Architect-Engineer Contracts.

970.3605

Contract Clauses.

970.3605-1

Other Contracts.

970.3605-2

Special Construction Clause for Operating Contracts.

Subpart 970.37—Facilities Management Contracting

970.3701

General.

970.3701-1

Severance Payments to Foreign Nationals.

970.3701-1-1

Waiver of Cost Allowability Provisions.

970.3701-1-2

Solicitation Provision and Contract Clause.

970.3770

Facilities Management.

970.3770-1

Policy.

970.3770-2

Contract clause.

Subpart 970.41—Acquisition of Utility Services

970.4102

Acquiring Utility Services.

970.4102-1

Policy.

Subpart 970.43—Contract Modifications

970.4302

Changes.

970.4302-1

Contract Clause.

Subpart 970.44—Management and Operating Contractor Purchasing

970.4400

Scope.

970.4401

Responsibilities.

970.4401-1

General.

970.4401-2

Review and Approval.

970.4401-3

Advance Notification.

970.4402

Contractor Purchasing System.

970.4402-1

Policy.

970.4402-2

General Requirements.

970.4402-3

Purchasing from Contractor-Affiliated Sources.

970.4402-4

Nuclear Material Transfers.

970.4403

Contract Clause.

Subpart 970.45—Government Property

970.4501

General.

970.4501-1

Contract Clause.

Subpart 970.49—Termination of Contracts

970.4905

Contract Termination Clause.

970.4905-1

Termination for Convenience of the Government and Default.

Subpart 970.50—Extraordinary Contractual Actions

970.5070

Indemnification.

970.5070-1

Scope and Applicability.

970.5070-2

General.

970.5070-3

Contract Clauses.

Subpart 970.52—Solicitation Provisions and Contract Clauses for Management and Operating Contracts

970.5200

Scope of Subpart.

970.5201

Text of Provisions and Clauses.

970.5203-1

Management Controls.

970.5203-2

Performance Improvement and Collaboration.

970.5203-3

Contractor's Organization.

970.5204-1

Counterintelligence.

970.5204-2

Laws, Regulations, and DOE Directives.

970.5204-3

Access to and Ownership of Records.

970.5208-1

Printing.

970.5209-1

Requirement for Guarantee of Performance.

970.5215-1

Total Available Fee: Base Fee Amount and Performance Fee Amount.

970.5215-2

Make-or-Buy Plan.

970.5215-3

Conditional Payment of Fee, Profit, or Incentives.

970.5215-4

Cost Reduction.

970.5215-5

Limitation on Fee.

970.5222-1

Collective Bargaining Agreements—Management and Operating Contracts.

970.5222-2

Overtime Management.

970.5223-1

Integration of Environment, Safety, and Health into Work Planning and Execution.

970.5223-2

Acquisition and Use of Environmentally Preferable Products and Services.

970.5223-3

Agreement Regarding Workplace Substance Abuse Programs at DOE Facilities.

970.5223-4

Workplace Substance Abuse Programs at DOE Sites.

970.5226-1

Diversity Plan.

970.5226-2

Workforce Restructuring under Section 3161 of the National Defense Authorization Act for Fiscal Year 1993.

970.5226-3

Community Commitment.

970.5227-1

Rights in Data—Facilities.

970.5227-2

Rights in Data—Technology Transfer.

970.5227-3

Technology Transfer Mission.

970.5228-1

Insurance—Litigation and Claims.

970.5229-1

State and Local Taxes.

970.5231-1

Allowable Costs and Fee (Management and Operating Contracts).

970.5231-2

Political Activity Cost Prohibition.

970.5231-3

Cost Prohibitions Related to Legal and Other Proceedings.

970.5231-4

Preexisting Conditions.

970.5232-1

Reduction or Suspension of Advance, Partial, or Progress Payments Upon Finding of Substantial Evidence of Fraud.

970.5232-2

Payments and Advances.

970.5232-3

Accounts, Records, and Inspection.

970.5232-4

Obligation of Funds.

970.5235-1

Federally Funded Research and Development Center Sponsoring Agreement.

970.5236-1

Government Facility Subcontract Approval.

970.5237-1

Waiver of Limitations on Severance Payments to Foreign Nationals.

970.5237-2

Facilities Management.

970.5243-1

Changes.

970.5244-1

Contractor Purchasing System.

970.5245-1

Property.

Subpart 970.01—Management and Operating Contract Regulatory System

970.0100

Scope of Part.

This part provides Departmental policies, procedures, provisions, and clauses that implement and supplement the Federal Acquisition Regulation (FAR) and other parts of the Department of Energy Acquisition Regulation (DEAR) for the award and administration of the Department's management and operating contracts, as defined at 48 CFR subpart 17.6.

970.0103

Publication and codification.

(a) Organization of Part 970. (1) To the extent possible, the titles and text of the subparts, sections, and subsections of this part are numbered to correspond with related material that is contained in the FAR.

(2) The number to the left of the decimal point represents the DEAR Part number (i.e., 970). The numbers to the right of the decimal point and to the left of the dash represent, in order, the DEAR subpart (first two digits), and the DEAR section number (second two digits). The numbers to the right of the dash represent the DEAR subsection. A second dash may follow the DEAR subsection number. As applicable, numbers to the right of the second dash represent subordinate subsections.

(3) To the extent practicable, the subpart number corresponds with the FAR part which contains related coverage, and the section number corresponds with the FAR subpart which contains related coverage (e.g., the coverage contained in DEAR 970.0309 corresponds with material contained in FAR 3.9).

(4) Where the FAR does not contain related coverage on a particular subject, the DEAR section number will be numbered using numbers of 70 and up (e.g., 970.0370).

(b) Special note regarding clause numbering. The section number for clauses prescribed in part 970 are numbered to correspond with the subpart in which the clause is prescribed (e.g., 970.5203-1 is prescribed for use at subpart 970.03).

Subpart 970.03—Improper Business Practices and Personal Conflicts of Interest

970.0309

Whistleblower Protection for Contractor Employees.

970.0309-1

Applicability.

The contracting officer shall refer to 48 CFR subpart 903.9 regarding the applicability of the DOE Employee Protection Program to management and operating contracts.

970.0370

Management Controls and Improvements.

970.0370-1

Policy.

(a) Management and operating contractors shall develop and maintain systems of management and quality control to discourage waste, fraud and abuse; and to ensure that components, products, and services that are provided to DOE satisfy the contractor's obligations under the contract.

(b) As a part of the required overall management structure, the contractor must maintain management control systems which, in compliance with the requirements of the clause at 48 CFR 970.5203-1:

(1) Are documented and satisfactory to DOE;

(2) Ensure that all levels of management are accountable for effective management systems and internal controls within their areas of assigned responsibility;

(3) Cover both programmatic and administrative functions;

(4) Provide reasonable assurance that Government resources are safeguarded against theft, fraud, waste, and unauthorized use;

(5) Promote efficient and effective operations;

(6) Ensure that all obligations and costs incurred are in compliance with the intended purposes and the terms and conditions of the contract;

(7) Properly record, manage, and report all revenues, expenditures, transactions and assets;

(8) Maintain financial, statistical and other reports necessary to maintain accurate, reliable, and timely accountability and management controls;

(9) Are periodically reviewed to ensure that the systems provide reasonable assurance that the objectives of the system are being accomplished and that these controls are working effectively;

(10) Are in accordance with the Comptroller General's standards for internal controls, as set forth in the General Accounting Office Policy and Procedures Manual For Guidance To Federal Agencies, (Oct 1984), as amended.

(c) Management and operating contractors shall also develop and maintain a baseline program of quality assurance that will implement documented performance and quality standards, and management controls and assessment techniques to ensure components, services, and products meet DOE's, design criteria and other governing and applicable specifications.

(d) DOE expects all its contractors to seek to identify improvements in any aspect of performance. Management and operating contracts are very large and complex; therefore, the opportunities to identify changes in performance that will increase the effectiveness or efficiency of contract performance are more prevalent than under other contracts. The clause at 48 CFR 970.5203-2 requires DOE management and operating contractors to affirmatively seek to identify, evaluate, and institute, where appropriate, processes that will improve the effectiveness or efficiency of any aspect of contract performance. It further requires the contractor to communicate any such improvements to DOE, other management and operating contractors, and DOE major facilities contractors. The contractor is required to participate in efforts by those contractors to address common problems or the institution of improvements. It allows the contractor to enlist the aid of the DOE contracting officer where necessary to institute or communicate the improvements. The obligations under the clause in no way affect the contractor's obligations under other provisions of the contract to notify or acquire the approval of the contracting officer.

970.0370-2

Contract clause.

(a) The contracting officer shall insert the clause at 970.5203-1, Management Controls, in all management and operating contracts.

(b) The contracting officer shall insert the clause at 970.5203-2, Performance Improvement and Collaboration, in all management and operating contracts.

970.0371

Conduct of employees of DOE management and operating contractors.

970.0371-1

Scope of section.

This section establishes the policies for maintaining satisfactory standards of conduct on the part of individuals employed by DOE management and operating contractors.

970.0371-2

Applicability.

The policies in this section are applicable to all DOE management and operating contractors.

970.0371-3

Definition.

Employees

, as used in this section, are defined to mean individuals employed by the contractor, both full and part-time, who are assigned to work under a DOE management and operating contract.

970.0371-4

Gratuities.

Employees of a management and operating contractor 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 is made to the requirements prescribed in 48 CFR 3.502.

970.0371-5

Use of privileged information.

Management and operating contractor employees shall not use privileged information for personal gain, or make other improper use of privileged information which is acquired in connection with their employment on contract work. For the purposes of this subsection, 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.

970.0371-6

Incompatibility between regular duties and private interests.

Employees 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 personal concern in the matter may be incompatible with the interest of the Government. For example: An employee 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 an employee 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 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.

970.0371-7

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 contractor employees having outside employment. However, no employee of a contractor performing work on a full or part-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:

(a) In any manner interfere with the proper and effective performance of the duties of the position;

(b) Appear to create a conflict-of-interest situation, or

(c) Appear to subject DOE or the contractor to public criticism or embarrassment.

970.0371-8

Employee disclosure concerning other employment services.

(a) Management and operating contractors are responsible for requiring its employees to file with the contractor, a written disclosure statement concerning outside employment

services which involve the use of information in the area of the employee's employment with the contractor. The disclosure shall contain such information concerning the outside employment as the contractor may prescribe. At a minimum, the employee's disclosure shall:

(1) Acknowledge that the employee has read and is familiar with:

(i) The requirements and restrictions prescribed in this section,

(ii) DOE publication entitled, “Reporting Results of Scientific and Technical Work Funded by DOE”, and

(iii) The requirements of the contractor's contract with DOE relating to patents.

(2) Include information concerning any rate of remuneration significantly in excess of the employee's regular rate of remuneration;

(3) Identify any actual or potential conflicts with DOE's policies regarding conduct of employees of DOE's contractors set forth in this section;

(4) Address any potential impacts that such employment may have on the contractor's responsibility to report fully and promptly to DOE all significant research and development information; and

(5) Identify any potential conflicts such employment may have with the patent provisions of the contractor's contract with DOE.

(b) The contractor shall provide a copy of all disclosures to the contracting officer.

970.0371-9

Contract clause.

The contracting officer shall insert the clause at 970.5203-3, Contractor's Organization, in all management and operating contracts.

Subpart 970.04—Administrative Matters

970.0404

Safeguarding classified information.

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.

Counterintelligence

means information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations or persons, or international terrorist activities, but not including personnel, physical, document or communication security programs.

Restricted data

means data which is defined, in section 11, 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.”

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 parts 1045 and 710. Supplemental security material is found in the DOE Directives system. Foreign ownership, control, or influence over contractors as it relates to security is discussed at 48 CFR 904.70 also applies to management and operating contracts. Regulations pertaining to the protection of restricted data are 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 (42 U.S.C. 2161 and 2164).

(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 facilities, 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 (42 U.S.C. 2162).

(e) Executive Order 12333, United States Intelligence Activities, provides for the organization and control of United States foreign intelligence and counterintelligence activities. In accordance with this Executive Order, DOE has established a counterintelligence program which is described in DOE Order 5670.3 (as amended). All DOE elements, including management and operating contractors and other contractors managing DOE-owned facilities which require access authorizations, should undertake the necessary precautions to ensure that DOE and covered contractor personnel, programs and resources are properly protected from foreign intelligence threats and activities.

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 in accordance with applicable DOE Directives in the safeguards and security series.

(b) Management and operating contracts which may require the processing or storage of Restricted Data or Special Nuclear Material require application of the applicable DOE Directives in the safeguards and security series.

(c) The contracting officer shall refer to 48 CFR 904.71 for guidance concerning the prohibition on award of a DOE contract under a national security program to a company owned by an entity controlled by a foreign government when access to proscribed information is required to perform the contract.

970.0404-4

Solicitation provision and contract clauses.

(a) The contracting officer shall insert the clause at 970.5204-1, Counterintelligence, into all management and operating contracts and other contracts for the management of DOE-owned facilities which include the security and classification/declassification clauses.

(b) The contracting officer shall refer to 48 CFR 904.404 and 48 CFR 904.7103 for the prescription of solicitation provisions and contract clauses relating to safeguarding classified information and foreign ownership, control, or influence over contractors.

970.0407

Contractor records retention.

970.0407-1

Applicability.

970.0407-1-1

Alternate retention schedules.

Records produced under the Department's contracts involving management and operation

responsibilities relative to DOE-owned or—leased facilities are to be retained and disposed of in accordance with the guidance contained in DOE G 1324.5B, Records Management Program and DOE Records Schedules (see current version), rather than those set forth at 48 CFR subpart 4.7, Contractor Records Retention.

970.0407-1-2

Access to and ownership of records.

Contracting officers may agree to contractor ownership of certain categories of records designated in the instruction contained in paragraph (b) of the clause at 48 CFR 970.5204-3, Access to and Ownership of Records, provided the Government's rights to inspect, copy, and audit these records are not limited. These rights must be retained by the Government in order to carry out the Department's statutory responsibilities required by the Atomic Energy Act and other statutes for oversight of its contractors, including compliance with the Department's health, safety and reporting requirements, and protection of the public interest.

970.0407-1-3

Contract clause.

The contracting officer shall insert the clause at 48 CFR 970.5204-3, Access to and Ownership of Records, in management and operating contracts.

970.0470

Department of Energy Directives.

970.0470-1

General.

(a) The contractor is required to comply with the requirements of applicable Federal, State and local laws and regulations, unless relief has been granted by the appropriate authority. For informational purposes, the contracting officer may append the contract with a list of applicable laws or regulations (see 970.5204-2, Laws, Regulations, and DOE Directives, paragraph (a)).

(b) The Department of Energy Directives System is a system of instructions, including orders, notices, manuals, guides, and standards, for Departmental elements. In certain circumstances, requirements contained in these directives may apply to a contractor through operation of a contract clause. Program and requirements personnel are responsible for identifying requirements in the Directives System which are applicable to a contract, and for developing a list of applicable requirements and providing it to the contracting officer for inclusion in the contract.

(c) Where directives requirements are established using either the Standards/Requirements Identification Process or the Work Smart Standards Process, the applicable process should also be used to establish the environment, safety, and health portion of the list identified in paragraph (b) of this section.

(d) Environmental, safety, and health (ES&H) requirements appropriate for work conducted under a management and operating contract may be determined by a DOE approved process to evaluate the work and the associated hazards, and identify an appropriately tailored set of standards, practices, and controls, such as a tailoring process included in a DOE approved Safety Management System implemented under 48 CFR 970.5223-1, Integration of Environment, Safety, and Health into Work Planning and Execution. When such a process is used, the contracting officer shall ensure that the set of tailored requirements, as approved by DOE pursuant to the process, is incorporated into the list identified in paragraph (b) of this section. These requirements shall supersede, in whole or in part, the contractual environmental, safety, and health requirements previously made applicable to the contract by List B. If the tailored set of requirements identifies an alternative requirement which varies from an ES&H requirement of an otherwise applicable law or regulation, the contractor must request an exemption or other appropriate regulatory relief that may be specified in the governing regulation.

970.0470-2

Contract clause.

The contracting officer shall insert the clause at DEAR 970.5204-2, Laws, Regulations, and DOE Directives, in management and operating contracts.

Subpart 970.08—Required Sources of Supplies and Services

970.0801

Excess personal property.

970.0801-1

Policy.

The provisions of 48 CFR subpart 8.1 (Federal Acquisition Regulation), 41 CFR 101-43 (Federal Property Management Regulation), and 41 CFR 109-43 (DOE Property Management Regulation) apply to DOE's management and operating contracts.

970.0808

Acquisition of printing.

970.0808-1

Scope of section.

This section prescribes the Department's policy concerning duplicating or printing services which may be required in the performance of management and operating contracts.

970.0808-2

Policy.

Management and operating contractors shall provide or secure duplication and printing services in accordance with the Government Printing and Binding Regulations, Title 44 of the U.S. Code, and applicable DOE Directives.

970.0808-3

Contract clause.

The contracting officer shall insert the clause at 970.5208-1, Printing, in all management and operating contracts.

Subpart 970.09—Contractor Qualifications

970.0905

Organizational conflicts of interest.

Management and operating contracts shall contain an organizational conflict of interest clause substantially similar to the clause at 48 CFR 952.209-72, Organizational Conflicts of Interest, and which is appropriate to the statement of work of the individual contract. In addition, the contracting officer shall assure that the clause contains appropriate restraints on intra-corporate relations between the contractor's organization and personnel operating the Department's facility and its parent corporate body and affiliates. Such retrains shall include 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. The contracting officer is responsible for ensuring that M&O contractors adopt policies and procedures in the award of subcontracts that will meet the Department's need to safeguard against a biased work product and an unfair competitive advantage. To this end, the organizational conflicts of interest clause in management and operating contracts shall include Alternate I.

970.0970

Performance Guarantees.

970.0970-1

Determination of Responsibility.

(a) In the award of a management and operating contract, the contracting officer shall determine that the prospective contractor is a responsible contractor and is capable of providing all necessary financial, personnel, and other resources in performance of the contract.

(b) DOE contracts with entities that have been created solely for the purpose of performing a specific management and operating contract. Generally, such newly created entities will have very limited financial and other resources. In such instances, when making the determination of responsibility required under this section, the contracting officer may evaluate the financial resources of other entities only to the

extent that those entities are legally bound, jointly and severally if more than one, by means of a performance guarantee or other equivalent enforceable commitment to supply the necessary resources to the prospective contractor and to assume all contractual obligations of the prospective contractor. A performance guarantee should be the means used unless an equivalent degree of commitment can be obtained by an alternative means.

(c) The guaranteeing corporate entity(ies) must be found to have sufficient resources in order to satisfy its guarantee.

970.0970-2

Solicitation provision.

The contracting officer shall insert the provision at 48 CFR 970.5209-1, Requirement for Guarantee of Performance, in solicitations when the awardee will be required to be organized solely for performance of the requirement.

Subpart 970.11—Describing Agency Needs

970.1100

Policy.

970.1100-1

Performance-based contracting.

(a) It is the policy of the Department of Energy to use, to the maximum extent practicable, performance-based contracting methods in its management and operating contracts. Office of Federal Procurement Policy Letter 91-2 provides guidance concerning the development and use of performance-based contracting concepts and methodologies that may be generally applied to management and operating contracts. Performance-based contracts: describe performance requirements in terms of results rather than methods of accomplishing the work; use measurable (

i.e.,

terms of quality, timeliness, quantity) performance standards and objectives and quality assurance surveillance plans; provide performance incentives (positive or negative) where appropriate; and specify procedures for award or incentive fee reduction when work activities are not performed or do not meet contract requirements.

(b) The use of performance-based statements of work, where feasible, is the preferred method for establishing work requirements. Such statements of work and other documents used to establish work requirements (such as work authorization directives) should describe performance requirements and expectations in terms of outcome, results, or final work products, as opposed to methods, processes, or design.

(c) Contract performance requirements and expectations should be consistent with the Department's strategic planning goals and objectives, as made applicable to the site or facility through Departmental programmatic and financial planning processes. Measurable performance criteria, objective measures, and where appropriate, performance incentives, shall be structured to correspond to the performance requirements established in the statement of work and other documents used to establish work requirements.

(d) Quality assurance surveillance plans shall be developed to facilitate the assessment of contractor performance and ensure the appropriateness of any award or incentive fee payment. Such plans shall be tailored to the contract performance objectives, criteria, and measures, and shall, to the maximum extent practicable, focus on the level of performance required by the performance objectives rather than the methodology used by the contractor to achieve that level of performance.

970.1100-2

Additional considerations.

(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 paragraph (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) The provisions required in paragraphs (a) and (b) of this section shall be set forth in the statement of work of the contract.

Subpart 970.15—Contracting by Negotiation

970.1504

Contract pricing.

970.1504-1

Price analysis.

970.1504-1-1

Fees for management and operating contracts.

This subsection sets forth the Department's policies on fees for management and operating contracts and may be applied to other contracts as determined by the Procurement Executive, or designee.

970.1504-1-2

Fee policy.

(a) DOE management and operating contractors may be paid a fee in accordance with the requirements of this subsection.

(b) There are three basic principles underlying the Department's fee policy:

(1) The amount of available fee should reflect the financial risk assumed by the contractor.

(2) It is the policy of the Department, when work elements cannot be fixed price, incentive fees (including award fees) tied to objective measures should be used to the maximum extent appropriate.

(3) When work elements cannot be fixed price and award fees are employed, they should be tied to either objective or subjective measures. Each measure should, to the maximum extent appropriate, be directly tied to a specific portion of the fee pool.

(c) Fee objectives and amounts are to be determined for each contract. Standard fees or across-the-board fee agreements will not be used or made. Due to the nature of funding management and operating contracts, it is anticipated that fee shall be established in accordance with the annual funding cycle; however, with the prior approval of the Procurement Executive, or designee, a longer period may be used where necessary to incentivize performance objectives that span funding cycles or to optimize cost reduction efforts.

(d) Annual fee amounts shall be established in accordance with this subsection. Annual amounts shall not exceed maximum amounts derived from the appropriate fee schedule (and Classification Factor, if applicable) unless approved in advance by the Procurement Executive, or designee. In no event shall any fee exceed statutory limits imposed by 41 U.S.C. 254(b).

(e)(1) Contracting Officers shall include negative fee incentives in contracts when appropriate. A negative fee incentive is one in which the contractor will not be paid the full target fee amount when the actual performance level falls below the target level established in the contract.

(2) Negative fee incentives may only be used when:

(i) A target level of performance can be established, which the contractor can reasonably be expected to reach;

(ii) The value of the negative incentive is commensurate with the lower level of performance and any additional administrative costs;

(iii) Factors likely to prevent attainment of the target level of performance are clearly within the control of the contractor; and

(iv) The contract indicates clearly a level below which performance is not acceptable.

(f) Prior to the issuance of a competitive solicitation or the initiation of negotiations for an extension of an existing contract, the HCA shall coordinate the maximum available fee, as allowed by 48 CFR 970.1504-1-1, and the fee amount targeted for negotiation, if less, with the Procurement Executive, or designee. Solicitations shall identify maximum available fee under the contract and may invite offerors to propose fee less than the maximum available.

(g) When a contract subject to this subsection 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 may be given, subject to approval by the Procurement Executive, or designee, to increasing the total available fee amount above that otherwise provided by this subsection.

(h) Multiple fee arrangements should be used in accordance with 48 CFR 970.1504-1-4.

970.1504-1-3

Special considerations: Laboratory management and operation.

(a) For the management and operation of a laboratory, the contracting officer shall consider whether any fee is appropriate. Considerations should include:

(1) The nature and extent of financial or other liability or risk assumed or to be assumed under the contract;

(2) The proportion of retained earnings (as established under generally accepted accounting methods) that are utilized to fund the performance of work related to the DOE contracted effort;

(3) Facilities capital or capital equipment acquisition plans;

(4) Other funding needs, to include contingency funding, working capital funding, and provision for funding unreimbursed costs deemed ordinary and necessary;

(5) The utility of fee as a performance incentive; and

(6) The need for fee to attract qualified contractors, organizations, and institutions.

(b) In the event fee is considered appropriate, the contracting officer shall determine the amount of fee in accordance with this subsection.

(1) Costs incurred in the operation of a laboratory that are allowable and allocable under the cost principles (i.e., commercial using 48 CFR 31.2, nonprofit using OMB Circular A-122, or university-affiliated using OMB Circular A-21), regulations, or statutes applicable to the operating contractor should be classified as direct or indirect (overhead or G&A) charges to the contract and not included as proposed fee. Exceptions must be approved by the Procurement Executive, or designee.

(2) Except as specified in 48 CFR 970.1504-1-3(c)(3), the maximum total amount of fee shall be calculated in accordance with 48 CFR 970.1504-1-5 or 48 CFR 970.1504-1-9, as appropriate. The total amount of fee under any laboratory management and operating contract or other designated contract shall not exceed, and may be significantly less than, the result of that calculation. In determining the total amount of fee, the contracting officer shall consider the evaluation of the factors in paragraph (a) of this subsection as well as any benefits the laboratory operator will receive due to its tax status.

(c) In the event fee is considered appropriate, the contracting officer shall establish the type of fee arrangement in accordance with this subsection.

(1) The amount of fee may be established as total available fee with a base fee portion and a performance fee portion. Base fee, if any, shall be an amount in recognition of the risk of financial liability assumed by the contractor and shall not exceed the cost risk associated with those liabilities or the amount calculated in accordance with 48 CFR 970.1504-1-5, whichever is less. The total available fee, excepting any base fee, shall normally be associated with performance at or above the target level of performance as defined by the contract. If performance in either of the two general work categories appropriate for laboratories (science/technology and support) is rated at less than the target level of performance, the total amount of the available fee shall be subject to downward adjustment. Such downward adjustment shall be subject to the terms of the clause at 48 CFR 970.5215-3, Conditional Payment of Fee, Profit, or Incentives, if contained in the contract.

(2) The amount of fee may be established as a fixed fee in recognition of the risk of financial liability to be assumed by the contractor, with such fixed fee amount not exceeding the cost risk associated with the liabilities assumed or the amount of fee calculated in accordance with 48 CFR 970.1504-1-5, whichever is less.

(3) If the fixed fee or total available fee exceeds 75% of the fee that would be calculated per 48 CFR 970.1504-1-5 or 48 CFR 970.1504-1-9; or if a fee arrangement other than one of those set forth in paragraphs (c) (1) or (2) of this subsection is considered appropriate, the approval of the Procurement Executive, or designee, shall be obtained prior to its use.

(4) Fee, if any, as well as the type of fee arrangement, will normally be established for the life of the contract. It will be established at time of award, as part of the extend/compete decision, at the time of option exercise, or at such other time as the parties can mutually reach agreement, e.g., negotiations. Such agreement shall require the approval of the Procurement Executive, or designee.

(5) Fee established for longer than one year shall be subject to adjustment in the event of a significant change (greater than +/−10% or a lessor amount if appropriate) to the budget or work scope.

(6) Retained earnings (reserves) shall be identified and a plan for their use and disposition developed.

(7) The use of retained earnings as a result of performance of laboratory management and operation may be restricted if the operator is an educational institution.

970.1504-1-4

Types of contracts and fee arrangements.

(a) Contract types and fee arrangements suitable for management and operating contracts may include cost, cost-plus-fixed-fee, cost-plus-award-fee, cost-plus-incentive-fee, fixed-price incentive, firm-fixed-price or any combination thereof (see 48 CFR 16.1). In accordance with 48 CFR 970.1504-1-2(b)(1), the fee arrangement chosen for each work element should reflect the financial risk for project failure that contractors are willing to accept. Contracting officials shall structure each contract and the elements of the work in such a manner that the risk is manageable and, therefore, assumable by the contractor.

(b) Consistent with the concept of a performance-based management contract, those contract types which incentivize performance and cost control are preferred over a cost-plus-fixed-fee arrangement. Accordingly, a cost-plus-fixed-fee contract in instances other than those set forth in 48 CFR 970.1504-1-3(c)(2) may only be used when approved in advance by the Procurement Executive, or designee.

(c) A cost-plus-award-fee contract is generally the appropriate contract type for a management and operating contract.

(1) Where work cannot be adequately defined to the point that a fixed price contract is acceptable, the attainment of acquisition objectives generally will be enhanced by using a cost-plus-award-fee contract or other incentive fee

arrangement to effectively motivate the contractor to superior performance and to provide the Department with flexibility to evaluate actual performance and the conditions under which it was achieved.

(2) The construct of fee for a cost-plus-award-fee management and operating contract is that total available fee will equal a base fee amount and a performance fee amount. The total available fee amount including the performance fee amount the contractor may earn, in whole or in part during performance, shall be established annually (or as otherwise agreed to by the parties and approved by the Procurement Executive, or designee), in an amount sufficient to motivate performance excellence.

(3) However, consistent with concepts of performance-based contracting, it is Departmental policy to place fee at risk based on performance. Accordingly, a base fee amount will be available only when approved in advance by the Procurement Executive, or designee, except as permitted in 48 CFR 970.1504-1-3(c)(1). Any base fee amount shall be fixed, expressed as a percent of the total available fee at inception of the contract, and shall not exceed that percent during the life of the contract.

(4) The performance fee amount may consist of an objective fee component and a subjective fee component. Objective performance measures, when appropriately applied, provide greater incentives for superior performance than do subjective performance measures and should be used to the maximum extent appropriate. Subjective measures should be used when it is not feasible to devise effective predetermined objective measures applicable to cost, technical performance, or schedule for particular work elements.

(d) Consistent with performance-based contracting concepts, performance objectives and measures related to performance fee should be as clearly defined as possible and, where feasible, expressed in terms of desired performance results or outcomes. Specific measures for determining performance achievement should be used. The contract should identify the amount and allocation of fee to each performance result or outcome.

(e) Because the nature and complexity of the work performed under a management and operating contract may be varied, opportunities may exist to utilize multiple contract types and fee arrangements. Consistent with paragraph (a) of this subsection and 48 CFR 16.1, the contracting officer should apply that contract type or fee arrangement most appropriate to the work component. However, multiple contract types or fee arrangements:

(1) Must conform to the requirements of 48 CFR part 915 and 48 CFR parts 15 and 16, and

(2) Where appropriate to the type, must be supported by:

(i) Negotiated costs subject to the requirements of the Truth in Negotiations Act,

(ii) A pre-negotiation memorandum, and

(iii) A plan describing how each contract type or fee arrangement will be administered.

(f) Cost reduction incentives are addressed in the clause at 48 CFR 970.5215-4, Cost Reduction. This clause provides for incentives for quantifiable cost reductions associated with contractor proposed changes to a design, process, or method that has an established cost, technical, and schedule baseline, is defined, and is subject to a formal control procedure. The clause is to be included in management and operating contracts as appropriate. Proposed changes must be: initiated by the contractor, innovative, applied to a specific project or program, and not otherwise included in an incentive under the contract. Such cost reduction incentives do not constitute fee and are not subject to statutory or regulatory fee limitations; however, they are subject to all appropriate requirements set forth in this subpart.

(g) Operations and field offices shall take the lead in developing and implementing the most appropriate pricing arrangement or cost reduction incentive for the requirements. Pricing arrangements which provide incentives for performance and cost control are preferred over those that do not. The operations and field offices are to ensure that the necessary resources and infrastructure exist within both the contractor's and government's organizations to prepare, evaluate, and administer the pricing arrangement or cost reduction incentive prior to its implementation.

970.1504-1-5

General considerations and techniques for determining fixed fees.

(a) The Department's fee policy recognizes that fee is remuneration to contractors for the entrepreneurial function of organizing and managing resources, the use of their resources (including capital resources), and, as appropriate, their assumption of the risk that some incurred costs (operating and capital) may not be reimbursed.

(b) Use of a purely cost-based structured approach for determining fee objectives and amounts for 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 evaluation of the following eight significant factors, as outlined in order of importance, and the assignment of appropriate fee values (subject to the limitations on fixed fee in 48 CFR 970.1504-1-6):

(1) The presence or absence of financial risk, including the type and terms of the contract;

(2) The relative difficulty of work, including specific performance objectives, environment, safety and health concerns, and the technical and administrative knowledge, and skill necessary for work accomplishment and experience;

(3) Management risk relating to performance, including:

(i) Composite risk and complexity of principal work tasks required to do the job;

(ii) Labor intensity of the job;

(iii) Special control problems; and

(iv) Advance planning, forecasting and other such requirements;

(4) Degree and amount of contract work required to be performed by and with the contractor's own resources, as compared to the nature and degree of subcontracting and the relative complexity of subcontracted efforts, subcontractor management and integration;

(5) Size and operation (number of locations, plants, differing operations, etc.);

(6) 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);

(7) 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 having the opportunity to hold or expand a staff whose loyalties are primarily to the contractor; and

(8) Other special considerations, including support of Government programs such as those relating to small and minority business subcontracting, energy conservation, etc.

(c) The total fee objective for a particular annual fixed fee negotiation is established by evaluating the factors in this subsection, assigning fee values to them, and totaling the resulting amounts

(subject to limitations on total fixed fee in 48 CFR 970.1504-1-6).

970.1504-1-6

Calculating fixed fee.

(a) In recognition of the complexities of the fee determination process, and to assist in promoting a reasonable degree of consistency and uniformity in its application, the following fee schedules set forth the maximum amounts of fee that contracting activities are allowed to award for a particular fixed fee transaction calculated annually.

(b) Fee schedules representing the maximum allowable annual fixed fee available under management and operating contracts have been established for the following management and operating contract efforts:

(1) Production;

(2) Research and Development; and

(3) Environmental Management.

(c) The schedules are:

Production Efforts

Fee base

(dollars)

Fee

(dollars)

Fee

(percent)

Incr.

(percent)

Up to $1 Million

7.66

1,000,000

$76,580

7.66

6.78

3,000,000

212,236

7.07

6.07

5,000,000

333,670

6.67

4.90

10,000,000

578,726

5.79

4.24

15,000,000

790,962

5.27

3.71

25,000,000

1,161,828

4.65

3.35

40,000,000

1,663,974

4.16

2.92

60,000,000

2,247,076

3.75

2.57

80,000,000

2,761,256

3.45

2.34

100,000,000

3,229,488

3.23

1.45

150,000,000

3,952,622

2.64

1.12

200,000,000

4,510,562

2.26

0.61

300,000,000

5,117,732

1.71

0.53

400,000,000

5,647,228

1.41

0.45

500,000,000

6,097,956

1.22

Over $500 Million

6,097,956

0.45

Research and Development Efforts

Fee base

(dollars)

Fee

(dollars)

Fee

(percent)

Incr.

(percent)

Up to $1 Million

8.42

1,000,000

$84,238

8.42

7.00

3,000,000

224,270

7.48

6.84

5,000,000

361,020

7.22

6.21

10,000,000

671,716

6.72

5.71

15,000,000

957,250

6.38

4.85

25,000,000

1,441,892

5.77

4.22

40,000,000

2,075,318

5.19

3.69

60,000,000

2,813,768

4.69

3.27

80,000,000

3,467,980

4.33

2.69

100,000,000

4,006,228

4.01

1.69

150,000,000

4,850,796

3.23

1.14

200,000,000

5,420,770

2.71

0.66

300,000,000

6,083,734

2.03

0.53

400,000,000

6,667,930

1.67

0.50

500,000,000

7,172,264

1.43

Over $500 Million

7,172,264

0.50

Environmental Management Efforts

Fee base

(dollars)

Fee

(dollars)

Fee

(percent)

Incr.

(percent)

Up to $1 Million

7.33

1,000,000

$73,298

7.33

6.49

3,000,000

203,120

6.77

5.95

5,000,000

322,118

6.44

5.40

10,000,000

592,348

5.92

4.83

15,000,000

833,654

5.56

4.03

25,000,000

1,236,340

4.95

3.44

40,000,000

1,752,960

4.38

3.29

60,000,000

2,411,890

4.02

3.10

80,000,000

3,032,844

3.79

2.49

100,000,000

3,530,679

3.53

1.90

150,000,000

4,479,366

2.99

1.48

200,000,000

5,219,924

2.61

1.12

300,000,000

6,337,250

2.11

0.88

400,000,000

7,219,046

1.80

0.75

500,000,000

7,972,396

1.59

0.58

750,000,000

9,423,463

1.26

0.55

1,000,000,000

10,786,788

1.08

Over $1.0 Billion

10,786,788

0.55

970.1504-1-7

Fee Base.

(a) The fee base is an estimate of necessary allowable costs, with some exclusions. It is used in the fee schedules to determine the maximum annual fee for a fixed fee contract. That portion of the fee base that represents the cost of the Production, Research and Development, or Environmental Management work to be performed, shall be 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) Such portion of the fee base, in addition to the adjustments in paragraph (a) of this subsection, shall exclude:

(1) Any part of the estimated cost of capital equipment (other than special equipment) which the contractor procures by subcontract or other similar costs which is of such magnitude or nature as to distort the technical and management effort actually required of the contractor;

(2) At least 20% of the estimated cost or price of subcontracts and other major contractor procurements;

(3) Up to 100% of the estimated cost or price of subcontracts and other major contractor procurements if they are of a magnitude or nature as to distort the technical and management effort actually required of the contractor;

(4) Special equipment as defined in 48 CFR 970.1504-1-8;

(5) Estimated cost of Government-furnished property, services and equipment;

(6) All estimates of costs not directly incurred by or reimbursed to the operating contractor;

(7) Estimates of home office or corporate general and administrative expenses that shall be reimbursed through the contract;

(8) Estimates of any ind

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