Acquisition Regulation; Regulatory Reinvention

DEPARTMENT OF ENERGY

48 CFR Parts 901, 905, 906, 908, 915, 916, 917, 922, 928, 932, 933,

935, 936, 942, 945, 952 and 971

RIN 1991-AB25

Acquisition Regulation; Regulatory Reinvention

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Department of Energy (DOE) proposes to amend the

Department of Energy Acquisition Regulation (DEAR) in its continuing

effort to streamline and simplify the acquisition process and to meet

the objectives of several Executive Orders (EO), including: EO 12861,

Elimination of One-Half of Executive Branch Internal Regulations; EO

12931, Federal Procurement Reform; and EO 12866, Regulatory Planning

and Review. This proposed rule revises certain regulatory material and

deletes other material that has been determined to be nonregulatory and

unnecessary. Specific material to be revised or deleted from the DEAR

is summarized in the ``Section-by-Section Analysis'' appearing later in

this document.

DATES: Written comments should be forwarded no later than July 2, 1996.

ADDRESSES: Send written comments to the attention of Kevin M. Smith,

Office of Policy (HR-51), Office of Procurement and Assistance

Management, Department of Energy, 1000 Independence Avenue, SW.,

Washington, D.C. 20585.

FOR FURTHER INFORMATION CONTACT: Kevin M. Smith, (202) 586-8189.

SUPPLEMENTARY INFORMATION:

I. Background

II. Section-by-Section Analysis

III. Procedural Requirements

A. Review Under Executive Order 12866

B. Review Under Executive Order 12778

C. Review Under the Regulatory Flexibility Act

D. Review Under the Paperwork Reduction Act

E. Review Under Executive Order 12612

F. Review Under the National Environmental Policy Act

G. Public Hearing Determination

I. Background

NFORMATION:

I. Background

II. Section-by-Section Analysis

III. Procedural Requirements

A. Review Under Executive Order 12866

B. Review Under Executive Order 12778

C. Review Under the Regulatory Flexibility Act

D. Review Under the Paperwork Reduction Act

E. Review Under Executive Order 12612

F. Review Under the National Environmental Policy Act

G. Public Hearing Determination

I. Background

Executive Order (EO) 12861, dated September 11, 1993, Elimination

of One-Half of Executive Branch Internal Regulations, was issued by the

President to streamline Government operations, improve productivity,

and improve customer service. EO 12931, dated October 13, 1994, Federal

Procurement Reform, calls for significant changes to make the

Government procurement process more effective and efficient. EO 12866,

dated September 30, 1993, Regulatory Planning and Review, requires

agencies to review regulations to improve effectiveness and to reduce

regulatory burden. This proposed rule represents DOE's third action to

eliminate existing regulatory material that is unnecessary. In

promulgating this rule, the Department will further the objectives of

the EOs by reducing the volume of the DEAR; streamlining operations;

reducing constraints, prescriptive requirements, and administrative

processes; making requirements outcome oriented vs. process oriented;

and, defining roles and assigning responsibilities at the lowest

appropriate level within the procurement organization. This proposed

rule makes three types of changes to the DEAR. Certain regulatory

coverage is being revised and condensed

ning operations;

reducing constraints, prescriptive requirements, and administrative

processes; making requirements outcome oriented vs. process oriented;

and, defining roles and assigning responsibilities at the lowest

appropriate level within the procurement organization. This proposed

rule makes three types of changes to the DEAR. Certain regulatory

coverage is being revised and condensed

to simplify and streamline the acquisition process; substantive policy

changes have not been made in these areas. In addition, to implement

certain requirements of the Federal Acquisition Streamlining Act of

1994, Pub. L. 103-355, regarding the availability of protest files and

agency protest reviews, two new solicitation provisions are being

added. Consistent with the requirements of E.O. 12979, dated October

25, 1995, Agency Procurement Protests, language also is being added to

encourage the use of alternative dispute resolution procedures in

appropriate circumstances. Finally, other material that has been

determined to be nonregulatory in nature is being removed from the

DEAR, including informational material and internal guidance and

procedures.

II. Section-by-Section Analysis

1. Part 901 is revised to simplify the language, remove

informational material, and remove internal procedures addressing

deviations to the regulation, ratification of unauthorized commitments,

and selection of contracting officers and their representatives.

2. Subpart 905.4, addressing the internal DOE process for release

of contract information, is removed.

3. Section 906.302, citing the Atomic Energy Act authority for

circumstances permitting other than full and open competition, is

removed.

4. Section 906.303, addressing the internal procedures for

processing noncompetitive justifications, is removed.

5

officers and their representatives.

2. Subpart 905.4, addressing the internal DOE process for release

of contract information, is removed.

3. Section 906.302, citing the Atomic Energy Act authority for

circumstances permitting other than full and open competition, is

removed.

4. Section 906.303, addressing the internal procedures for

processing noncompetitive justifications, is removed.

5. Part 908, addressing required sources of supplies and services,

is revised to simplify the language, remove informational material,

remove internal procedures, and to move subpart 908.3, addressing the

acquisition of utility services, to the new Part 941.

6. Subpart 915.5, addressing unsolicited proposals, is revised to

simplify the language, remove informational material, and remove

internal procedures.

7. Subpart 915.6, addressing internal source selection procedures,

is removed.

8. Subsection 915.970-8, addressing weighted guidelines application

considerations, is revised to remove informational material and

internal guidance.

9. Section 916.405, containing recommended language for award fee

contract clauses, is removed.

10. Subpart 917.70, addressing cost participation, is revised to

simplify the language, remove informational material, and remove

internal procedures.

11. Subpart 917.72, addressing Program Opportunity Notices for

commercial demonstrations, is revised to simplify the language, remove

informational material, and remove internal procedures.

12. Subpart 917.73, addressing Program Research and Development

Announcements, is revised to simplify the language, remove

informational material, and remove internal procedures.

13. Subpart 917.74, addressing the acquisition, use and disposal of

real estate, is revised to simplify the language, remove informational

material, and remove internal procedures.

14. Subpart 917.75, providing guidance for the use of multiple

awards-phased acquisitions, is removed.

15

ments, is revised to simplify the language, remove

informational material, and remove internal procedures.

13. Subpart 917.74, addressing the acquisition, use and disposal of

real estate, is revised to simplify the language, remove informational

material, and remove internal procedures.

14. Subpart 917.75, providing guidance for the use of multiple

awards-phased acquisitions, is removed.

15. Section 922.805, providing guidance to the contracting officer

for obtaining affirmative action program posters, is removed.

16. Subpart 922.70, providing guidance regarding construction

laborers and mechanics, is removed.

17. Subpart 928.1, addressing the use of bonds, is revised to

simplify the language, remove informational material, and remove

internal procedures.

18. Section 932.102, providing information on contract financing,

is revised to simplify the language, remove informational material, and

remove internal procedures.

19. Subpart 932.7, providing information on contract financing, is

removed.

20. Section 932.802, providing information on the use of partial

assignments, is removed.

21. Section 932.805, providing internal procedures for the

information to be furnished to assignees, is removed.

22. Subpart 932.9, addressing prompt payments, is revised to

simplify the language, remove informational material, and remove

internal procedures.

23. Section 932.7000, providing introductory information on loan

guarantees, is removed.

24. Section 932.7001, providing definitions, is removed.

25. Subpart 933.1, addressing protests, is revised to simplify the

language, remove informational material, remove internal procedures,

add two new solicitation provisions that address protest file

availability and agency protest review, and add alternative dispute

resolution procedures.

26. Section 935.016, addressing research opportunity announcements,

is revised to simplify the language, remove informational material, and

remove internal procedures.

27

language, remove informational material, remove internal procedures,

add two new solicitation provisions that address protest file

availability and agency protest review, and add alternative dispute

resolution procedures.

26. Section 935.016, addressing research opportunity announcements,

is revised to simplify the language, remove informational material, and

remove internal procedures.

27. Sections 936.601, 936.602-2, 936.602-3, and 936.602-4,

providing internal procedures for contracting for architect-engineer

services, are removed.

28. Sections 936.603, 936.605, and 936.606, providing internal

procedures for contracting for architect-engineer services, are

removed.

29. Subpart 936.72, providing internal information and guidance for

the acquisition of special equipment, is removed.

30. Part 941, addressing the acquisition of utility services, is

added to include the coverage, as revised, that was previously

contained in Part 908.

31. Subsection 942.705-1, addressing final indirect cost rate

determinations, is revised to simplify the language.

32. Subsection 942.705-3, addressing negotiated rates for

educational institutions, is revised to simplify the language.

33. Subsection 942.705-4, addressing negotiated rates for state and

local governments, is revised to simplify the language.

34. Subsection 942.705-5, addressing negotiated rates for nonprofit

organizations other than educational and state and local governments,

is revised to simplify the language.

35-36. Subpart 942.70, providing internal guidance and procedures

for obtaining audit support services, is removed.

37. Subsection 945.505-5, providing internal guidance for making

records of plant equipment, is removed.

38. Subsection 945.505-14, providing information for the completion

of Government property reports, is removed.

39. Section 952.214, addressing clauses related to sealed bidding,

is removed as there is no material under that section title.

40

obtaining audit support services, is removed.

37. Subsection 945.505-5, providing internal guidance for making

records of plant equipment, is removed.

38. Subsection 945.505-14, providing information for the completion

of Government property reports, is removed.

39. Section 952.214, addressing clauses related to sealed bidding,

is removed as there is no material under that section title.

40. Section 952.215, addressing clauses related to contracting by

negotiation, is removed as the prescriptions for those clauses were

removed in an earlier final rule.

41. Subsection 952.233-2 is revised to change the DOE office that

receives copies of protests.

42. Subsection 952.233-4 is added to include a new solicitation

provision regarding the availability of protest files.

43. Subsection 952.233-5 is added to include a new solicitation

provision regarding agency protest reviews.

44. Subsection 952.251-70 is amended to correct the date of the

contract clause Contractor Employee Travel Discounts.

45. Part 971, providing internal procedures for the review and

approval of contract actions, is removed.

III. Procedural Requirements

A. Review Under Executive Order 12866

This 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 12778

gulatory 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 12778

Section 2 of Executive Order 12778 instructs each agency to adhere

to certain requirements in promulgating new regulations and reviewing

existing regulations. These requirements, set forth in sections 2(a)

and (b)(2), include eliminating drafting errors and needless ambiguity,

drafting the regulations to minimize litigation, providing clear and

certain legal standards for affected legal conduct, and promoting

simplification and burden reduction. Agencies are also instructed to

make every reasonable effort to ensure that the regulation specifies

clearly any preemptive effect, effect on existing Federal law or

regulation, and retroactive effect; describes any administrative

proceedings to be available prior to judicial review and any provisions

for the exhaustion of such administrative proceedings; and defines key

terms. DOE certifies that this proposed rule meets the requirements of

sections 2(a) and (b) of Executive Order 12778.

C. Review Under the Regulatory Flexibility Act

This proposed rule was reviewed under the Regulatory Flexibility

Act of 1980, Pub. L. 96-354, which requires preparation of a regulatory

flexibility analysis for any rule that is likely to have a significant

economic impact on a substantial number of small entities. This

proposed rule will have no impact on interest rates, tax policies or

liabilities, the cost of goods or services, or other direct economic

factors. It will also not have any indirect economic consequences such

as changed construction rates

tion of a regulatory

flexibility analysis for any rule that is likely to have a significant

economic impact on a substantial number of small entities. This

proposed rule will have no impact on interest rates, tax policies or

liabilities, the cost of goods or services, or other direct economic

factors. It will also not have any indirect economic consequences such

as changed construction rates. DOE certifies that this proposed rule

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 collection or recordkeeping requirements are

imposed by this proposed rule. Accordingly, no OMB clearance is

required under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501, et

seq.).

E. Review Under Executive Order 12612

Executive Order 12612, entitled ``Federalism,'' 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 Federal Government and the

States, or in the distribution of power and responsibilities among

various levels of government. If there are sufficient substantial

direct effects, then the Executive Order requires preparation of a

federalism assessment to be used in all decisions involved in

promulgating and implementing a policy action. DOE has determined that

this proposed rule will not have a substantial direct effect on the

institutional interests or traditional functions of States.

F. Review Under the National Environmental Policy Act

substantial

direct effects, then the Executive Order requires preparation of a

federalism assessment to be used in all decisions involved in

promulgating and implementing a policy action. DOE has determined that

this proposed rule will not have a substantial direct effect on the

institutional interests or traditional functions of States.

F. Review Under the National Environmental Policy Act

Pursuant to the Council on Environmental Quality Regulations (40

CFR 1500-1508), the Department has established guidelines for its

compliance with the provisions of the National Environmental Policy Act

(NEPA) of 1969 (42 U.S.C. 4321, et seq.). Pursuant to Appendix A of

Subpart D of 10 CFR 1021, National Environmental Policy Act

Implementing Procedures (Categorical Exclusion A6), DOE has determined

that this proposed rule is categorically excluded from the need to

prepare an environmental impact statement or environmental assessment.

G. Public Hearing Determination

DOE has concluded that this proposed rule does not involve any

significant issues of law or fact. Therefore, consistent with 5 U.S.C.

553, DOE has not scheduled a public hearing.

List of Subjects in 48 CFR Parts 901, 905, 906, 908, 915, 916, 917,

922, 928, 932, 933, 935, 936, 942, 945, 952, and 971

Government procurement.

Issued in Washington, D.C., on April 24, 1996.

Richard H. Hopf,

Deputy Assistant Secretary for 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 citation for Parts 901, 905, 906, 908, 915, 916,

917, 922, 928, 932, 933, 935, 936, 942, 945, 952, and 971 continues to

read as follows:

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

2. Part 901 is revised to read as follows:

PART 901--FEDERAL ACQUISITION REGULATIONS SYSTEM

Subpart 901.1--Purpose, Authority, Issuance

gulations is proposed to be amended as set forth

below:

1. The authority citation for Parts 901, 905, 906, 908, 915, 916,

917, 922, 928, 932, 933, 935, 936, 942, 945, 952, and 971 continues to

read as follows:

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

2. Part 901 is revised to read as follows:

PART 901--FEDERAL ACQUISITION REGULATIONS SYSTEM

Subpart 901.1--Purpose, Authority, Issuance

Sec.

901.101 Purpose.

901.102 Authority.

901.103 Applicability.

901.104 Issuance.

901.104-1 Publication and code arrangement.

901.104-2 Arrangement of regulations.

901.104-3 Copies.

901.105 OMB control numbers.

Subpart 901.3--Agency Acquisition Regulations

901.301-70 Other issuances related to acquisition.

Subpart 901.6--Contracting Authority and Responsibilities

901.601 General.

901.602-3 Ratification of unauthorized commitments.

Subpart 901.1--Purpose, Authority, Issuance

901.101 Purpose.

The Department of Energy Acquisition Regulation (DEAR) establishes

uniform acquisition policies which implement and supplement the Federal

Acquisition Regulation (FAR).

901.102 Authority.

The DEAR and amendments thereto are issued by the Procurement

Executive pursuant to a delegation from the Secretary in accordance

with the authority of section 644 of the Department of Energy

Organization Act (42 U.S.C. 7254), section 205(c) of the Federal

Property and Administrative Services Act of 1949, as amended, (40

U.S.C. 486(c)), and other applicable law.

901.103 Applicability.

The FAR and DEAR apply to all DOE acquisitions of supplies and

services which obligate appropriated funds unless otherwise specified

in this chapter.

901.104 Issuance.

901.104-1 Publication and code arrangement.

(a) The DEAR and its subsequent changes are published in the

Federal Register, cumulative form in the Code of Federal Regulations,

and a separate loose-leaf edition.

(b) The DEAR is issued as Chapter 9 of Title 48 of the Code of

Federal Regulations.

901.104-2 Arrangement of regulations.

ess otherwise specified

in this chapter.

901.104 Issuance.

901.104-1 Publication and code arrangement.

(a) The DEAR and its subsequent changes are published in the

Federal Register, cumulative form in the Code of Federal Regulations,

and a separate loose-leaf edition.

(b) The DEAR is issued as Chapter 9 of Title 48 of the Code of

Federal Regulations.

901.104-2 Arrangement of regulations.

(a) General. The DEAR is divided into the same parts, subparts,

sections, subsections and paragraphs as is the FAR.

(b) Numbering. The numbering illustrations at (FAR) 48 CFR 1.104-

2(b) apply to the DEAR, but the DEAR numbering will be preceded with a

9 or a 90. Material which supplements the FAR will be assigned the

numbers 70 and up.

901.104-3 Copies.

Copies of the DEAR published in the Federal Register or Code of

Federal Regulations may be purchased from the Superintendent of

Documents, Government Printing Office, Washington, DC 20402.

901.105 OMB control numbers.

The Paperwork Reduction Act of 1980, Public Law 98-511, and the

Office of Management and Budget's implementing regulations at 5 CFR

Part 1320, require that reporting and record keeping requirements

affecting 10 or more members of the public be cleared by that Office.

The OMB control number for the collection of information under 48 CFR

Chapter 9 is 1910-4100.

Subpart 901.3--Agency Acquisition Regulations

901.301-70 Other issuances related to acquisition.

In addition to the FAR and DEAR, there are other issuances which

deal with acquisition. Among these are the Federal Property Management

Regulations, the DOE Property Management Regulations, and DOE

Directives.

Subpart 901.6--Contracting Authority and Responsibilities

901.601 General.

910-4100.

Subpart 901.3--Agency Acquisition Regulations

901.301-70 Other issuances related to acquisition.

In addition to the FAR and DEAR, there are other issuances which

deal with acquisition. Among these are the Federal Property Management

Regulations, the DOE Property Management Regulations, and DOE

Directives.

Subpart 901.6--Contracting Authority and Responsibilities

901.601 General.

Contracting authority vests in the Secretary of Energy. The

Secretary has delegated this authority to the Procurement Executive.

The Procurement Executive has redelegated this authority to the Heads

of Contracting Activities (HCA). These delegations are formal written

delegations containing dollar limitations and conditions. Each HCA in

turn makes formal contracting officer appointments within the

contracting activity. 901.602-3 Ratification of unauthorized

commitments.

(b) (2) The Procurement Executive is authorized to ratify an

unauthorized commitment.

(3) The ratification authority of the Procurement Executive in

paragraph (b)(2) of this section is delegated to the Head of the

Contracting Activity (HCA) for individual unauthorized commitments of

$25,000 or under. The ratification authority of the HCA is

nondelegable.

PART 905--PUBLICIZING CONTRACT ACTIONS

905.4 [Removed]

3. Subpart 905.4 is removed.

PART 906--COMPETITION REQUIREMENTS

906.302 [Removed]

4. Section 906.302, including 906.302-70, is removed.

906.303 [Removed]

5. Section 906.303, including 906.303-1, is removed.

6. Part 908 is revised to read as follows:

PART 908--REQUIRED SOURCES OF SUPPLIES AND SERVICES

Subpart 908.8--Acquisition of Printing and Related Supplies

Sec.

908.802 Policy.

Subpart 908.11--Leasing of Motor Vehicles

908.1102 Presolicitation requirements.

908.1104 Contract clauses.

908.1170 Leasing of fuel-efficient vehicles.

Subpart 908.71--Acquisition of Special Items

.303-1, is removed.

6. Part 908 is revised to read as follows:

PART 908--REQUIRED SOURCES OF SUPPLIES AND SERVICES

Subpart 908.8--Acquisition of Printing and Related Supplies

Sec.

908.802 Policy.

Subpart 908.11--Leasing of Motor Vehicles

908.1102 Presolicitation requirements.

908.1104 Contract clauses.

908.1170 Leasing of fuel-efficient vehicles.

Subpart 908.71--Acquisition of Special Items

908.7100 Scope of subpart.

908.7101 Motor vehicles.

908.7101-1 Consolidated acquisition of new vehicles by General

Services Administration.

908.7101-3 Direct acquisition.

908.7101-4 Replacement of motor vehicles.

908.7101-5 Used vehicles.

908.7101-6 Acquisition of fuel-efficient vehicles.

908.7101-7 Government license tags.

908.7102 Aircraft.

908.7103 Office machines.

908.7104 Office furniture and furnishings.

908.7105 Filing cabinets.

908.7106 Security cabinets.

908.7107 Alcohol.

908.7108 Helium.

908.7109 Fuels and packaged petroleum products.

908.7111 Arms and ammunition.

908.7112 Materials handling equipment replacement standards.

908.7114 Wiretapping and eavesdropping equipment.

908.7115 Forms.

908.7116 Electronic data processing tape.

908.7117 Tabulating machine cards.

Subpart 908.8--Acquisition of Printing and Related Supplies

908.802 Policy.

(b) Inclusion of printing requirements (limited exceptions are set

forth in paragraphs 35-2 through 35-4 of the Government Printing and

Binding Regulations) in contracts for supplies and services is

prohibited unless specifically approved by the Director, Office of

Administrative Services, Headquarters. Contracting officers shall

insert the clause at 48 CFR 952.208-70.

Subpart 908.11--Leasing of Motor Vehicles

908.1102 Presolicitation requirements.

are set

forth in paragraphs 35-2 through 35-4 of the Government Printing and

Binding Regulations) in contracts for supplies and services is

prohibited unless specifically approved by the Director, Office of

Administrative Services, Headquarters. Contracting officers shall

insert the clause at 48 CFR 952.208-70.

Subpart 908.11--Leasing of Motor Vehicles

908.1102 Presolicitation requirements.

(a)(4) Commercial vehicle lease sources may be used only when the

General Services Administration (GSA) has advised that it cannot

furnish the vehicle(s) through the Interagency Motor Pool System and it

has been determined that the vehicle(s) are not available through the

GSA Consolidated Leasing Program.

908.1104 Contract clauses.

(e) The clause at 48 CFR 952.208-7, Tagging of Leased Vehicles,

shall be inserted whenever a vehicle(s) is to be leased over 60 days,

except for those vehicles exempted by (FPMR) 41 CFR 101-38.6.

908.1170 Leasing of fuel-efficient vehicles.

(a) All sedans and station wagons and certain types of light

trucks, as specified by GSA, that are acquired by lease for 60

continuous days or more for official use by DOE or its authorized

contractors, are subject to the requirements of the Energy Policy and

Conservation Act of 1975 (EPCA), Public Law 94-163 and of Executive

Order 12003 and subsequent implementing regulations.

(b) Leased vehicles will meet the miles-per-gallon criteria of, and

be incorporated in, the approved plan of the fiscal year in which

leases are initiated, reviewed, extended, or increased in scope.

Vehicle leases will specify the vehicle model type to be provided.

Subpart 908.71--Acquisition of Special Items

908.7100 Scope of subpart.

This subpart sets forth requirements and procedures for the

acquisition of special items by DOE and contractors authorized to use

special sources of supply to the extent indicated herein.

908.7101 Motor vehicles.

908.7101-1 Consolidated acquisition of new vehicles by General

Services Administration.

pe to be provided.

Subpart 908.71--Acquisition of Special Items

908.7100 Scope of subpart.

This subpart sets forth requirements and procedures for the

acquisition of special items by DOE and contractors authorized to use

special sources of supply to the extent indicated herein.

908.7101 Motor vehicles.

908.7101-1 Consolidated acquisition of new vehicles by General

Services Administration.

(a) New vehicles shall be procured in accordance with (FPMR) 41 CFR

101 25.304, 101-26.501, and 101-38.13, and

(DOE-PMR) 41 CFR 109-25.304, 109-38.13, and 109-38.51.

908.7101-3 Direct acquisition.

Vehicles may be acquired by DOE activities directly rather than

through GSA when a waiver has been granted by GSA. A copy of the

activity's request to GSA for a waiver shall be forwarded to the

Director, Office of Property Management, within the Headquarters

procurement organization. In those cases involving general purpose

vehicles where GSA refuses to grant a waiver and where it is believed

that acquisition through GSA would adversely affect or otherwise impair

the program, authority for direct acquisition shall be obtained from

the above-mentioned Headquarters official, prior to acquisition. In the

acquisition of special purpose vehicles for use by DOE and its

authorized contractors, the Head of the Contracting Activity may

authorize direct purchases. The purchase price for sedans and station

wagons, shall not exceed any statutory limitation in effect at the time

the acquisition is made. (See (DOE-PMR) 41 CFR 109-38.5102-4).

908.7101-4 Replacement of motor vehicles.

(a) The replacement of motor vehicles shall be in accordance with

the replacement standards prescribed in (FPMR) 41 CFR 101-38.9 and

(DOE-PMR) 41 CFR 109-38.9.

ect purchases. The purchase price for sedans and station

wagons, shall not exceed any statutory limitation in effect at the time

the acquisition is made. (See (DOE-PMR) 41 CFR 109-38.5102-4).

908.7101-4 Replacement of motor vehicles.

(a) The replacement of motor vehicles shall be in accordance with

the replacement standards prescribed in (FPMR) 41 CFR 101-38.9 and

(DOE-PMR) 41 CFR 109-38.9.

(b) The Heads of Contracting Activities may arrange to sell, as

exchange sales, used motor vehicles being replaced and to apply the

proceeds to the purchase of similar new vehicles. However, in the event

personnel are not available to make such sales, or it is in the best

interest of the DOE office, GSA may be requested to sell the used

vehicles.

908.7101-5 Used vehicles.

Heads of Contracting Activities may authorize the purchase of used

vehicles where justified by special circumstances; e.g., when new

vehicles are in short supply, the vehicles are to be used for

experimental or test purposes, or the vehicles are acquired from

exchange sale. In accordance with (DOE-PMR) 41 CFR 109-38.5102, the

statutory passenger vehicle allocation requirements for DOE shall apply

to any purchase of used vehicles except in the case of vehicles to be

used exclusively for experimental or test purposes.

908.7101-6 (Acquisition of fuel-efficient vehicles.

(a) All purchases of sedans and station wagons, and certain types

of light trucks as specified by GSA, are subject to the requirements of

the Energy Policy and Conservation Act of 1975 (EPCA), Public Law 94-

163, and of Executive Orders 12003 and 12375 and subsequent

implementing regulations.

d exclusively for experimental or test purposes.

908.7101-6 (Acquisition of fuel-efficient vehicles.

(a) All purchases of sedans and station wagons, and certain types

of light trucks as specified by GSA, are subject to the requirements of

the Energy Policy and Conservation Act of 1975 (EPCA), Public Law 94-

163, and of Executive Orders 12003 and 12375 and subsequent

implementing regulations.

(b) Sedans, station wagons, and light trucks requisitioned

according to an approved forecast, but not contracted for by GSA until

the subsequent fiscal year, will be included in the acquisition plan

for the miles-per-gallon criteria of the year in which GSA signs the

purchase contract along with the new vehicles planned for acquisition

that year.

908.7101-7 Government license tags.

(a) Government license tags shall be procured and assignments

recorded by DOE offices in accordance with (FPMR) 41 CFR 101-38.303.

Special license tags for security purposes shall be purchased in

accordance with State and local laws, regulations, and procedures. See

(DOE-PMR) 41 CFR 109-38.3 and 109-38.6 for additional guidance.

908.7102 Aircraft.

Acquisition of aircraft shall be in accordance with (DOE-PMR) 41

CFR 109-38.5205.

908.7103 Office machines.

Acquisitions of office machines by DOE offices and its authorized

contractors shall be in accordance with (FPMR) 41 CFR 101-25.104, 101-

25.302, 101-25.302-3, 101-25.302-4, and 101-25.302-6, and 101-25.403,

and (DOE-PMR) 41 CFR 109-25.302, 109-25.302-3, and 109-25.4.

908.7104 Office furniture and furnishings.

Acquisitions of office furniture and furnishings by DOE offices

shall be in accordance with (FPMR) 41 CFR 101-25.104, 101-25.302, 101-

25.302-1, 101-25.302-5, 101-25.302-7, and 101-25.302-8, 101-25.404 and

101-26.505, and (DOE-PMR) 41 CFR 109-25.302, 109-25.302-1, and 109-

25.350.

908.7105 Filing cabinets.

Acquisitions of filing cabinets shall be in accordance with (FPMR)

41 CFR 101-26.308 and 101-25.302-2 and (DOE-PMR) 41 CFR 109-25.302-2.

y DOE offices

shall be in accordance with (FPMR) 41 CFR 101-25.104, 101-25.302, 101-

25.302-1, 101-25.302-5, 101-25.302-7, and 101-25.302-8, 101-25.404 and

101-26.505, and (DOE-PMR) 41 CFR 109-25.302, 109-25.302-1, and 109-

25.350.

908.7105 Filing cabinets.

Acquisitions of filing cabinets shall be in accordance with (FPMR)

41 CFR 101-26.308 and 101-25.302-2 and (DOE-PMR) 41 CFR 109-25.302-2.

908.7106 Security cabinets.

(a) Acquisitions of security cabinets shall be in accordance with

(FPMR) 41 CFR 101-26.507 and the ``prerequisites to ordering'' criteria

contained in (FPMR) 41 CFR 101-25.302-2 and (DOE-PMR) 41 CFR 109-

25.302-2.

(b) Fixed-price prime contractors and lower tier subcontractors may

use GSA acquisition sources for security cabinets in accordance with

(FPMR) 41 CFR 101-26.407 and FAR 51.

908.7107 Alcohol.

(a) To the fullest extent practicable, alcohol for use by DOE or

its cost-type contractors shall be procured on a tax-free basis.

(b) ATF regulations relating to the acquisition and use of alcohol

free of tax, by Government agencies, are set forth in 26 CFR 213.141

through 213.146.

(c) ATF Form 1444/1486, ``Tax Free Spirits or Specially Denatured

Spirits for Use of United States,'' shall be used for acquisitions of

specially denatured alcohol and ethyl alcohol. Section I of the form is

the application for permission to acquire and Section II is the permit.

If acquisition from more than one warehouse is desirable, separate

applications must be made for withdrawal from each warehouse. When

permits are no longer required, they should be forwarded to the Bureau

of Alcohol, Tobacco and Firearms for cancellation. Alcohol procured by

use of the ATF form referred to in this section shall be used

exclusively on DOE work.

e and Section II is the permit.

If acquisition from more than one warehouse is desirable, separate

applications must be made for withdrawal from each warehouse. When

permits are no longer required, they should be forwarded to the Bureau

of Alcohol, Tobacco and Firearms for cancellation. Alcohol procured by

use of the ATF form referred to in this section shall be used

exclusively on DOE work.

(d) The Procurement Executive has been authorized to sign and

delegate to others authority to sign applications under Bureau of

Alcohol, Tobacco and Firearms regulations relating to the acquisition

and use of alcohol free of tax. Specific DOE personnel have been

delegated authority to execute Part I of Form 1444/1486 by letters to

the Director, Bureau of Alcohol, Tobacco and Firearms without power of

redelegation. Only the individuals so authorized shall execute Section

I of these forms.

(e) Applications on the ATF Form 1444/1486 shall be executed in

duplicate by an authorized DOE official and mailed directly to the

address on the application. Only one permit will be provided to each

field organization. Due to the numerous locations managed by field

operations offices, the exact shipping address need not be shown in

block 3 of the form. Shipments, however, must be addressed to the

``Department of Energy at various locations within the United States.''

The ATF will assign the application a permit number and return it to

the requestor. Distribution of certified copies shall be controlled and

each holder of a certified copy recorded.

(f) A signed copy of the permit shall accompany the original

purchase order issued to the plant or warehouse, where it shall be

retained or returned with the shipment. Subsequent orders shall refer

to the permit on file in the plant or warehouse if it was retained.

d return it to

the requestor. Distribution of certified copies shall be controlled and

each holder of a certified copy recorded.

(f) A signed copy of the permit shall accompany the original

purchase order issued to the plant or warehouse, where it shall be

retained or returned with the shipment. Subsequent orders shall refer

to the permit on file in the plant or warehouse if it was retained.

(g) When alcohol is shipped, the shipper prepares the required form

as specified by Bureau of Alcohol, Tobacco

and Firearms regulations and forwards them to the consignee. Upon

receipt of the receiving report covering the shipment, the officer who

signed the purchase order shall execute the certificate of receipt and

forward it to the appropriate Regional Director, Bureau of Alcohol,

Tobacco and Firearms. The carrier transporting the alcohol shall also

be given a receipt as specified by Bureau of Alcohol, Tobacco and

Firearms regulations.

(h) Abandoned and forfeited alcohol which has come into the custody

or control of a Federal agency may be obtained by following the

procedure set forth in (FPMR) 41 CFR 101-48.1.

908.7108 Helium.

(a) Acquisitions of helium by DOE and its authorized contractors

shall be in accordance with this section.

(b) The Helium Act (Public Law 86-777, as amended (50 U.S.C.

167(d)) provides that, to the extent that supplies are readily

available, whether in gaseous or liquid form, DOE shall purchase all

major requirements of helium from the Secretary of Interior, Bureau of

Mines, or from the Bureau of Mines distribution contractors eligible to

sell Bureau of Mines helium to Federal agencies and their users in

accordance with 30 CFR part 602.

908.7109 Fuels and packaged petroleum products.

e extent that supplies are readily

available, whether in gaseous or liquid form, DOE shall purchase all

major requirements of helium from the Secretary of Interior, Bureau of

Mines, or from the Bureau of Mines distribution contractors eligible to

sell Bureau of Mines helium to Federal agencies and their users in

accordance with 30 CFR part 602.

908.7109 Fuels and packaged petroleum products.

Acquisitions of fuel and packaged petroleum products by DOE offices

shall be in accordance with (FPMR) 41 CFR 101-26.602. When contractors

are authorized, consistent with 48 CFR part 951, to acquire such

products from Defense sources, they shall do so in accordance with

(FPMR) 41 CFR 101-26.602.

908.7111 Arms and ammunition.

(a) Acquisition of arms and ammunition readily procurable in the

civilian market shall be made in accordance with regular acquisition

procedures.

(b) Acquisition of arms and ammunition which are peculiar to the

military services shall be made by submission of order form to the

Commanding General, Headquarters, U.S. Army Material Development and

Readiness Command, 5001 Eisenhower Avenue, Alexandria, VA 22333.

908.7112 Materials handling equipment replacement standards.

Materials handling equipment shall be purchased for replacement

purposes in accordance with the standards in (FPMR) 41 CFR 101-25.405

and (DOE-PMR) 41 CFR 109-25.4. The Heads of Contracting Activities are

authorized to replace an item earlier than the date specified in such

standards under unusual circumstances. A written justification shall be

placed in the purchase file.

908.7114 Wiretapping and eavesdropping equipment.

Acquisition by DOE offices and contractors of devices primarily

designed to be used surreptitiously to overhear or record conversations

is prohibited.

908.7115 Forms.

(a) DOE forms shall be obtained by DOE offices in accordance with

the DOE Order 1322.2 (See current version). Cost-type contractors shall

obtain DOE forms through the DOE contracting officer.

ing and eavesdropping equipment.

Acquisition by DOE offices and contractors of devices primarily

designed to be used surreptitiously to overhear or record conversations

is prohibited.

908.7115 Forms.

(a) DOE forms shall be obtained by DOE offices in accordance with

the DOE Order 1322.2 (See current version). Cost-type contractors shall

obtain DOE forms through the DOE contracting officer.

(b) Standard, optional, and certain other agency forms as listed in

the GSA Supply Catalog will be obtained by DOE offices in accordance

with (FPMR) 41 CFR 101-26.302.

(c) Marginally punched continuous forms shall be obtained in

accordance with (FPMR) 41 CFR 101-26.703.

908.7116 Electronic data processing tape.

(a) Acquisitions of electronic data processing tape by DOE offices

shall be in accordance with (FPMR) 41 CFR 101-26.508.

(b) Acquisitions of electronic data processing tape by authorized

contractors shall be in accordance with (FPMR) 41 CFR 101-26.508-1.

However, if adequate justification exists, the Heads of the Contracting

Activities may authorize contractors to obtain their tape from other

sources. When such an authorization is granted, a copy of the

authorization and justification shall be retained in the contract file.

908.7117 Tabulating machine cards.

DOE offices shall acquire tabulating machine cards in accordance

with (FPMR) 41 CFR 101-26.509.

PART 915--CONTRACTING BY NEGOTIATION

7. Subpart 915.5 is revised to read as follows:

Subpart 915.5--Unsolicited Proposals

Sec.

915.502 Policy.

915.503 General.

915.505 Content of unsolicited proposals.

915.506 Agency procedures.

915.507 Contracting methods.

915.502 Policy.

lating machine cards.

DOE offices shall acquire tabulating machine cards in accordance

with (FPMR) 41 CFR 101-26.509.

PART 915--CONTRACTING BY NEGOTIATION

7. Subpart 915.5 is revised to read as follows:

Subpart 915.5--Unsolicited Proposals

Sec.

915.502 Policy.

915.503 General.

915.505 Content of unsolicited proposals.

915.506 Agency procedures.

915.507 Contracting methods.

915.502 Policy.

(a) Present and future needs demand the involvement of all

resources in exploring alternative energy sources and technologies. To

achieve this objective, it is DOE policy to encourage external sources

of unique and innovative methods, approaches, and ideas by stressing

submission of unsolicited proposals for government support. In

furtherance of this policy and to ensure the integrity of the

acquisition process through application of reasonable controls, the

DOE:

(1) Disseminates information on areas of broad technical concern

whose solutions are considered relevant to the accomplishment of DOE's

assigned mission areas;

(2) Encourages potential proposers to consult with program

personnel before expending resources in the development of written

unsolicited proposals;

(3) Endeavors to distribute unsolicited proposals to all interested

organizations within DOE;

(4) Processes unsolicited proposals in an expeditious manner and,

where practicable, keep proposers advised as discrete decisions are

made;

(5) Assures that each proposal is evaluated in a fair and objective

manner; and,

(6) Assures that each proposal will be used only for its intended

purpose and the information contained therein will not be divulged

without prior permission of the proposer.

(b) Extensions of contract work resulting from unsolicited

proposals shall be processed in accordance with the procedures at 48

CFR 943.170.

915.503 General.

to the prohibition herein.

915.505 Content of unsolicited proposals.

(b)(5) Unsolicited proposals for nonnuclear energy demonstration

activities not covered by existing formal competitive solicitations or

program opportunity notices may include a

request for federal assistance or participation, and shall be subject

to the cost sharing provisions of 48 CFR 917.70.

915.506 Agency procedures.

(b) Unless otherwise specified in a notice of program interest, all

unsolicited proposals should be submitted to the Unsolicited Proposal

Coordinator, Office of Procurement and Assistance, Washington, DC

20585. If the proposer has ascertained the cognizant program office

through preliminary contacts with program staff, the proposal may be

submitted directly to that office. In such instances, the proposer

should separately send a copy of the proposal cover letter to the

unsolicited proposal coordinator to assure that the proposal is logged

in the Department's automated tracking system for unsolicited

proposals.

915.507 Contracting methods.

(d) DOE's cost participation policy, at 48 CFR 917.70, shall be

followed in determining the extent to which the DOE will participate in

the cost for the proposed effort.

Subpart 915.6--[Removed]

8. Subpart 915.6 is removed.

9. Subsection 915.970-8 is revised to read as follows:

915.970-8 Weighted guidelines application considerations.

The Department has developed internal procedures to aid the

contracting officer in the application of weighted guidelines and to

assure a reasonable degree of uniformity across the Department.

PART 916--TYPES OF CONTRACTS

916.405 [Removed]

10. Section 916.405 is removed.

PART 917--SPECIAL CONTRACTING METHODS

11. Subpart 917.70 is revised to read as follows:

Subpart 917.70--Cost Participation

Sec.

917.7000 Scope of subpart.

917.7001 Policy.

Subpart 917.70--Cost Participation.

917.7000 Scope of subpart.

nes and to

assure a reasonable degree of uniformity across the Department.

PART 916--TYPES OF CONTRACTS

916.405 [Removed]

10. Section 916.405 is removed.

PART 917--SPECIAL CONTRACTING METHODS

11. Subpart 917.70 is revised to read as follows:

Subpart 917.70--Cost Participation

Sec.

917.7000 Scope of subpart.

917.7001 Policy.

Subpart 917.70--Cost Participation.

917.7000 Scope of subpart.

(a) This subpart sets forth the DOE policy on cost participation by

organizations performing research, development, and/or demonstration

projects under DOE prime contracts. This subpart does not cover efforts

and projects performed for DOE by other Federal agencies.

(b) Cost participation is a generic term denoting any situation

where the Government does not fully reimburse the performer for all

allowable costs necessary to accomplish the project or effort under the

contract. The term encompasses cost sharing, cost matching, cost

limitation (direct or indirect), participation in kind, and similar

concepts.

917.7001 Policy.

(a) When DOE supports performer research, development, and/or

demonstration efforts, where the principal purpose is ultimate

commercialization and utilization of the technologies by the private

sector, and when there are reasonable expectations that the performer

will receive present or future economic benefits beyond the instant

contract as a result of performance of the effort, it is DOE policy to

obtain cost participation. Full funding may be provided for early

phases of development programs when the technological problems are

still great.

(b) In making the determination to obtain cost participation, and

evaluating present and future economic benefits to the performer, DOE

will consider the technical feasibility, projected economic viability,

societal and political acceptability of commercial application, as well

as possible effects of other DOE-supported projects in competing

technologies.

nological problems are

still great.

(b) In making the determination to obtain cost participation, and

evaluating present and future economic benefits to the performer, DOE

will consider the technical feasibility, projected economic viability,

societal and political acceptability of commercial application, as well

as possible effects of other DOE-supported projects in competing

technologies.

(c) The propriety, manner, and amount of cost participation must be

decided on a case-by-case basis.

(d) Cost participation is required for demonstration projects

unless exempted by the Under Secretary. Demonstration projects,

pursuant to this subpart, include demonstrations of technological

advances and field demonstrations of new methods and procedures, and

demonstrations of prototype commercial applications for the

exploration, development, production, transportation, conversion, and

utilization of energy resources.

12. Subpart 917.72 is revised to read as follows:

Subpart 917.72--Program Opportunity Notices for Commercial

Demonstrations

Sec.

917.7200 Scope of subpart.

917.7201 Policy.

917.7201-1 General.

Subpart 917.72--Program Opportunity Notices for Commercial

Demonstrations

917.7200 Scope of subpart.

(a) This subpart discusses the policy for the use of a program

opportunity notice solicitation approach to accelerate the

demonstration of the technical feasibility and commercial application

of all potentially beneficial non-nuclear energy sources and

utilization technologies.

-1 General.

Subpart 917.72--Program Opportunity Notices for Commercial

Demonstrations

917.7200 Scope of subpart.

(a) This subpart discusses the policy for the use of a program

opportunity notice solicitation approach to accelerate the

demonstration of the technical feasibility and commercial application

of all potentially beneficial non-nuclear energy sources and

utilization technologies.

(b) This subpart applies to demonstrations performed by

individuals, educational institutions, other commercial or industrial

organizations, or other private entities, or by public entities,

including State and local governments, but not other Federal agencies.

For purposes of this subpart, commercial demonstration projects include

demonstrations of technological advances, field demonstrations of new

methods and procedures, and demonstration of prototype commercial

applications for the exploration, development, production,

transportation, conversion, and utilization of non-nuclear energy

resources.

917.7201 Policy.

917.7201-1 General.

(a) It is DOE's intent to encourage the submission of proposals to

accelerate the demonstration of the technical, operational, economic,

and commercial feasibility and environmental acceptability of

particular energy technologies, systems, subsystems, and components.

Program opportunity notices will be used to provide information

concerning scientific and technological areas encompassed by DOE's

programs. DOE shall, from time to time, issue program opportunity

notices for proposals for demonstrations of various forms of non-

nuclear energy and technology utilization.

tal acceptability of

particular energy technologies, systems, subsystems, and components.

Program opportunity notices will be used to provide information

concerning scientific and technological areas encompassed by DOE's

programs. DOE shall, from time to time, issue program opportunity

notices for proposals for demonstrations of various forms of non-

nuclear energy and technology utilization.

(b) Each program opportunity notice shall as a minimum describe:

the goal of the intended demonstration effort; the time schedule for

award; evaluation criteria; program policy factors; the amount of cost

detail required; and proposal submission information. Program policy

factors are those factors which, while not appropriate indicators of a

proposal's individual merit (i.e., technical excellence, proposer's

ability, cost, etc.), are relevant and essential to the process of

choosing which of the proposals received will, taken together, best

achieve the program objectives. All such factors shall be predetermined

and specified in the notice so as to notify proposers that factors

which are

essentially beyond their control will affect the selection process.

13. Subpart 917.73 is revised to read as follows:

Subpart 917.73--Program Research and Development Announcements

Sec.

917.7300 Scope of subpart.

917.7301 Policy.

917.7301-1 General.

Subpart 917.73--Program Research and Development Announcements

917.7300 Scope of subpart.

(a) This subpart discusses the policy for the use of a program

research and development announcement (PRDA) solicitation approach to

obtain and select proposals from the private sector for the conduct of

research, development, and related activities in the energy field.

917.7301 Policy

917.7301-1 General

part 917.73--Program Research and Development Announcements

917.7300 Scope of subpart.

(a) This subpart discusses the policy for the use of a program

research and development announcement (PRDA) solicitation approach to

obtain and select proposals from the private sector for the conduct of

research, development, and related activities in the energy field.

917.7301 Policy

917.7301-1 General

(a) PRDAs shall be used to provide potential proposers with

information concerning DOE's interest in entering into arrangements for

research, development, and related projects in specified areas of

interest. It is DOE's intent to solicit the submission of ideas which

will serve as a basis for research, development, and related activities

in the energy field. It is DOE's desire to encourage the involvement of

small business concerns, small disadvantage business concerns, and

women-owned small business concerns in research and development

undertaken pursuant to PRDAs.

(b) The PRDA should not replace existing acquisition procedures

where a requirement can be sufficiently defined for solicitation under

standard advertised or negotiated acquisition procedures. Similarly, it

should not inhibit or curtail the submission of unsolicited proposals.

However, a proposal which is submitted as though it were unsolicited

but is in fact germane to an existing PRDA shall be treated as though

submitted in response to the announcement or returned without action to

the proposer, at the proposer's option. Further, the PRDA is not to be

used in a competitive situation where it is appropriate to negotiate a

study contract to obtain analysis and recommendations to be

incorporated in the subsequent request for proposals.

(c) The PRDA is to be used only where:

(1) Research and development is required in support of a specific

project area within an energy program with the objective of advancing

the general scientific and technological base, and this objective is

best achieved through:

negotiate a

study contract to obtain analysis and recommendations to be

incorporated in the subsequent request for proposals.

(c) The PRDA is to be used only where:

(1) Research and development is required in support of a specific

project area within an energy program with the objective of advancing

the general scientific and technological base, and this objective is

best achieved through:

(i) A diversity of possible approaches, within the current state of

the art, available for solving the problems;

(ii) The involvement of a broad spectrum of organizations in

seeking out solutions to the problems posed;

(iii) The application of the unique qualifications or specialized

capabilities of many individual proposers which will enable them to

perform portions of the research project (without necessarily

possessing the qualifications to perform the entire project) so that

the overall support may be broken into segments which cannot be

ascertained in advance; and,

(iv) The fostering of new and creative solutions.

(2) Consistent with paragraph (c)(1) of this section, it is

anticipated that choices will have to be made among dissimilar

concepts, ideas, or approaches; and

(3) It is determined that a broad range of organizations exist that

would be capable of contributing towards the overall research and

development goals identified in paragraph (c)(1) of this section.

(d) Each PRDA shall as a minimum describe: the area(s) of program

interest; time schedule for award; proposal submittal information;

evaluation criteria; and program policy factors. The PRDA should

clearly emphasize to proposers that program policy factors are

essentially beyond their control and will affect the selection process.

The PRDA should also state that DOE reserves the right to select for

award or support any, all, or none of the proposals received in

response to an announcement.

14. Subpart 917.74 is revised to read as follows:

Subpart 917.74--Acquisition, Use, and Disposal of Real Estate

ize to proposers that program policy factors are

essentially beyond their control and will affect the selection process.

The PRDA should also state that DOE reserves the right to select for

award or support any, all, or none of the proposals received in

response to an announcement.

14. Subpart 917.74 is revised to read as follows:

Subpart 917.74--Acquisition, Use, and Disposal of Real Estate

Sec.

917.7401 General.

917.7402 Policy.

917.7403 Application.

Subpart 917.74--Acquisition, Use, and Disposal of Real Estate

917.7401 General.

Special circumstances and situations may arise under cost-type

contracts when, in the performance of their contract or subcontract,

the performer shall be required, or otherwise find it necessary, to

acquire real estate or interests therein by:

(a) Purchase, on DOE's behalf or in its own name, with title

eventually vesting in the Government.

(b) Lease, and DOE assumes liability for, or otherwise will pay for

the obligation under the lease.

(c) Acquisition of temporary interest through easement, license or

permit, and DOE funds the cost of the temporary interest.

917.7402 Policy.

It is the policy of the Department of Energy that when the real

estate acquisitions are made, the following policies and procedures

shall be applied to such acquisitions:

(a) Real estate acquisitions shall be mission essential;

effectively, economically, and efficiently managed and utilized; and

disposed of promptly, when not needed;

(b) Acquisitions shall be justified, with documentation which

describes the need for the acquisitions, general requirements, cost,

acquisition method to be used, site investigation reports, site

recommended for selection, and property appraisal reports; and

shall be mission essential;

effectively, economically, and efficiently managed and utilized; and

disposed of promptly, when not needed;

(b) Acquisitions shall be justified, with documentation which

describes the need for the acquisitions, general requirements, cost,

acquisition method to be used, site investigation reports, site

recommended for selection, and property appraisal reports; and

(c) Acquisition by lease, in addition to the requirements in

paragraphs (a) and (b) of this section:

(1) Shall not exceed a one-year term if funded by one-year

appropriations.

(2) May exceed a one-year term, when the lease is for special

purpose space funded by no-year appropriations and approved by the

Department.

(3) Shall contain an appropriate cancellation clause which limits

the Government's obligation to no more than the amount of rent to the

earliest cancellation date plus a reasonable cancellation payment.

(4) Shall be consistent with Government laws and regulations

applicable to real estate management.

917.7403 Application.

The clause at 48 CFR 952.217-70 shall be included in contracts or

modifications where contractor acquisitions are expected to be made.

917.75 [Removed]

15. Subpart 917.75 is removed.

922.805 [Removed]

16. Section 922.805 is removed.

922.70 [Removed]

17. Subpart 922.70 is removed.

PART 928--BONDS AND INSURANCE

18. Subpart 928.1 is revised to read as follows:

Subpart 928.1--Bonds

Sec.

928.101-1 Policy on use.

928.103-3 Payment bonds.

928.103-70 Review of performance and payment bonds for other than

construction.

Subpart 928.1--Bonds

928.101-1 Policy on use.

(a) In addition to the restriction on use of bid guarantees in FAR

28.101-1(a), a bid guarantee may be required only for fixed price or

unit price contracts entered into as a result of sealed bidding. They

may not be required for negotiated contracts.

928.103-3 Payment bonds.

Review of performance and payment bonds for other than

construction.

Subpart 928.1--Bonds

928.101-1 Policy on use.

(a) In addition to the restriction on use of bid guarantees in FAR

28.101-1(a), a bid guarantee may be required only for fixed price or

unit price contracts entered into as a result of sealed bidding. They

may not be required for negotiated contracts.

928.103-3 Payment bonds.

(a) A determination that is in the best interest of the Government

to require payment bonds in connection with other than construction

contracts may be made by the contracting officer on individual

acquisitions.

928.103-70 Review of performance and payment bonds for other than

construction.

A performance or payment bond, other than an annual bond, shall not

antedate the contract to which it pertains.

PART 932--CONTRACT FINANCING

19. Section 932.102 is revised to read as follows:

932.102 Description of contract financing methods.

(e)(2) Progress payments based on a percentage or stage of

completion may be authorized by the Head of the Contracting Activity

when a determination is made that progress payments based on costs

cannot be practically employed and that there are adequate safeguards

provided for the administration of progress payments based on a

percentage or stage of completion.

932.7 [Removed]

20. Subpart 932.7 is removed.

932.802 [Removed]

21. Section 932.802 is removed.

932.805 [Removed]

22. Section 932.805 is removed.

23. Subpart 932.9 is revised to read as follows:

Subpart 932.9--Prompt Payment

Sec.

932.970 Implementing DOE policies and procedures.

Subpart 932.9--Prompt Payment

932.970 Implementing DOE policies and procedures.

ge or stage of completion.

932.7 [Removed]

20. Subpart 932.7 is removed.

932.802 [Removed]

21. Section 932.802 is removed.

932.805 [Removed]

22. Section 932.805 is removed.

23. Subpart 932.9 is revised to read as follows:

Subpart 932.9--Prompt Payment

Sec.

932.970 Implementing DOE policies and procedures.

Subpart 932.9--Prompt Payment

932.970 Implementing DOE policies and procedures.

(a) Invoice payments. (1) Contract settlement date. For purposes of

determining any interest penalties under cost-type contracts, the

effective date of contract settlement shall be the effective date of

the final contract modification issued to acknowledge contract

settlement and to close out the contract.

(2) Constructive acceptance periods. Where the contracting officer

determines, in writing, on a case-by-case basis, that it is not

reasonable or feasible for DOE to perform the acceptance or approval

function within the standard period, the contracting officer should

specify a longer constructive acceptance or approval period, as

appropriate. Considerations include, but are not limited to, the nature

of supplies or services involved, geographical site location,

inspection and testing requirements, shipping and acceptance terms, and

available DOE resources.

(b) Contract financing payments. Contracting officers may specify

payment due dates that are less than the standard 30 days when a

determination is made, in writing, on a case-by-case basis, that a

shorter contract financing payment cycle will be required to finance

contract work. In such cases, the contracting officer should coordinate

with the finance and program officials that will be involved in the

payment process to ensure that the contract payment terms to be

specified in solicitations and resulting contract awards can be

reasonably met. Consideration should be given to geographical

separation, workload, contractor ability to submit a proper request,

and other factors that could affect timing of payment

ld coordinate

with the finance and program officials that will be involved in the

payment process to ensure that the contract payment terms to be

specified in solicitations and resulting contract awards can be

reasonably met. Consideration should be given to geographical

separation, workload, contractor ability to submit a proper request,

and other factors that could affect timing of payment. However, payment

due dates that are less than 7 days for progress payments or less than

14 days for interim payments on cost-type contracts are not authorized.

932.7000 [Removed]

24. Section 932.7000 is removed.

932.7001 [Removed]

25. Section 932.7001 is removed.

PART 933--PROTESTS, DISPUTES AND APPEALS

26. Subpart 933.1 is revised to read as follows:

Subpart 933.1--Protests

Sec.

933.103 Protests to the agency.

933.104 Protests to GAO.

933.105 Protests to GSBCA.

933.106 Solicitation provisions.

Subpart 933.1--Protests

933.103 Protests to the agency.

(f) If FAR 33.103(f) requires that award be withheld or performance

be suspended or the awarded contract be terminated pending resolution

of an agency protest, authority to award and/or continue performance of

the protested contract may be requested by the Head of the Contracting

Activity (HCA), concurred in by counsel, and approved by the

Procurement Executive.

(i)(1) Protests filed with the contracting officer before or after

award shall be decided by the Head of the Contracting Activity except

for the following cases, which shall be decided by the Procurement

Executive:

continue performance of

the protested contract may be requested by the Head of the Contracting

Activity (HCA), concurred in by counsel, and approved by the

Procurement Executive.

(i)(1) Protests filed with the contracting officer before or after

award shall be decided by the Head of the Contracting Activity except

for the following cases, which shall be decided by the Procurement

Executive:

(i) The protester requests that the protest be decided by the

Procurement Executive.

(ii) The HCA is the contracting officer of record at the time the

protest is filed, having signed either the solicitation where the award

has not been made, or the contract, where the award or nomination of

the apparent successful offeror has been made.

(iii) The HCA concludes that one or more of the issues raised in

the protest have the potential for significant impact on DOE

acquisition policy.

(2) Upon receipt of a protest requesting a decision by the

Procurement Executive, the contracting activity shall immediately

provide a copy of the protest to the Office of Clearance and Support.

(j) The Department of Energy encourages direct negotiations between

an offeror and the contracting officer in an attempt to resolve

protests. In those situations where the parties are not able to achieve

resolution, the Department favors the use of alternative dispute

resolution (ADR) techniques to resolve protests. A protest requesting a

decision at the Headquarters level shall state whether the protester is

willing to utilize ADR techniques such as mediation or nonbinding

evaluation of the protest by a neutral. Upon receipt of a protest

requesting a decision at the Headquarters level, the Office of

Clearance and Support will explore with the protester whether the use

of ADR techniques would be appropriate to resolve the protest. Both

parties must agree that the use of such techniques is appropriate

ling to utilize ADR techniques such as mediation or nonbinding

evaluation of the protest by a neutral. Upon receipt of a protest

requesting a decision at the Headquarters level, the Office of

Clearance and Support will explore with the protester whether the use

of ADR techniques would be appropriate to resolve the protest. Both

parties must agree that the use of such techniques is appropriate. If

the parties do not mutually agree to utilize ADR to resolve the

protest, the protest will be processed in accordance with the

procedures set forth in paragraph (k).

(k) Upon receipt of a protest lodged with the Department, the

contracting officer shall prepare a report similar to that discussed in

FAR 33.104(a)(3)(iii). In the case of a protest filed at the

Headquarters level, the report shall be forwarded to the Office of

Clearance and Support within 21 calendar days of being notified of such

a protest with a proposed response to the protest. The Procurement

Executive (for protests at the Headquarters level or those specific HCA

protests cited in paragraph (d)(2) of this section) or an HCA (for

protests

at the contracting activity level) will render a decision on a protest

within 35 calendar days, unless a longer period of time is determined

to be needed.

933.104 Protests to GAO.

(a)(2) The contracting officer shall provide the notice of protest.

(b) Protests before award. (1) When the Department has received

notice from the GAO of a protest filed directly with the GAO, a

contract may not be awarded until the matter is resolved, unless

authorized by the Head of the Contracting Activity in accordance with

FAR 33.104(b). Before the Head of the Contracting Activity authorizes

the award, the required finding shall be concurred in by the DOE

counsel handling the protest, endorsed by the Senior Program Official,

and approved by the Procurement Executive. The finding shall address

the likelihood that the protest will be sustained by the GAO.

by the Head of the Contracting Activity in accordance with

FAR 33.104(b). Before the Head of the Contracting Activity authorizes

the award, the required finding shall be concurred in by the DOE

counsel handling the protest, endorsed by the Senior Program Official,

and approved by the Procurement Executive. The finding shall address

the likelihood that the protest will be sustained by the GAO.

(c) Protests after award. Before the Head of the Contracting

Activity authorizes the award, the finding required by FAR 33.104(c)(2)

shall be concurred in by the DOE counsel handling the protest, endorsed

by the Senior Program Official, and approved by the Procurement

Executive.

(g) Notice to GAO. (1) The report to the GAO regarding a decision

not to comply with the GAO's recommendation, discussed at FAR

33.104(f), shall be provided by the HCA making the award, after

approval of the Procurement Executive. If a DOE-wide policy issue is

involved, the report shall be provided by the Procurement Executive.

(2) It is the policy of the Department to comply promptly with

recommendations set forth in Comptroller General Decisions except for

compelling reasons.

(3) The GAO does not have jurisdiction to consider subcontractor

protests.

933.105 Protests to GSBCA.

(a)(1)(i) The GSBCA does not have jurisdiction to consider

subcontractor protests.

(d)(2) The determinations and findings required by FAR 33.105(d)(2)

shall be executed by the HCA.

(4) If the GSBCA suspends the procurement authority to acquire any

goods or services not previously delivered and accepted under an

awarded contract, the contracting officer shall invoke the clause at

FAR 52.233-3, ``Protest After Award,'' to cause the contractor to cease

performance and to suspend related activities that may result in

additional obligations being incurred by the Government.

933.106 Solicitation provisions.

curement authority to acquire any

goods or services not previously delivered and accepted under an

awarded contract, the contracting officer shall invoke the clause at

FAR 52.233-3, ``Protest After Award,'' to cause the contractor to cease

performance and to suspend related activities that may result in

additional obligations being incurred by the Government.

933.106 Solicitation provisions.

(a) The contracting officer shall supplement the provision at FAR

52.233-2, Service of Protest, in solicitations for other than

simplified acquisitions by adding the provision at 48 CFR 952.233-2.

(b) The contracting officer shall include the provision at 48 CFR

952.233-4 in solicitations for purchases above the simplified

acquisition threshold.

(c) The contracting officer shall include the provision at 48 CFR

952.233-5 in solicitations for purchases above the simplified

acquisition threshold.

PART 935--RESEARCH AND DEVELOPMENT CONTRACTING

27. Subsections 935.016-3 through 935.016-7 and 935.016-9 are

removed, and section 935.016 and subsections 935.016-1, 935.016-2 and

935.016-8 are revised to read as follows:

935.016 Research opportunity announcements.

935.016-1 Scope.

(a) FAR 35.016 sets forth the policies and procedures for

contracting for research through the use of broad agency announcements

as authorized by the Competition in Contracting Act of 1984 (CICA) (41

U.S.C. 259(b)(2)) and Federal Acquisition Regulation (FAR) 6.102(d)(2).

Within DOE, broad agency announcements, will be designated as Research

Opportunity Announcements (ROAs).

935.016-1 Scope.

(a) FAR 35.016 sets forth the policies and procedures for

contracting for research through the use of broad agency announcements

as authorized by the Competition in Contracting Act of 1984 (CICA) (41

U.S.C. 259(b)(2)) and Federal Acquisition Regulation (FAR) 6.102(d)(2).

Within DOE, broad agency announcements, will be designated as Research

Opportunity Announcements (ROAs).

(b) Research Opportunity Announcements are a form of competitive

solicitation under which DOE's broad mission and program-level research

objectives are defined; proposals which offer meritorious approaches to

those objectives are requested from all offerors capable of satisfying

the Government's needs; those proposals are evaluated by scientific or

peer review against stated specific evaluation criteria; and selection

of proposals for possible contract award is based upon that evaluation,

the importance of the research to the program objectives, and funds

availability.

935.016-2 Applicability.

(a) This section applies to all DOE Headquarters and field program

organizations which, by virtue of their statutorily mandated mission or

other such authority as may exist, support energy or energy-related

research activities through contractual relationships.

(1) The ROA may be used as a competitive solicitation procedure

through which DOE acquires basic and applied research in support of its

broad mission and program-level research objectives, and these

objectives may be best achieved through relationships where contractors

pursue diverse and dissimilar solutions and approaches to scientific

and technological areas related to DOE's missions and programs.

(2) The ROA shall not be used as a solicitation method when one or

more of the following conditions exist:

h in support of its

broad mission and program-level research objectives, and these

objectives may be best achieved through relationships where contractors

pursue diverse and dissimilar solutions and approaches to scientific

and technological areas related to DOE's missions and programs.

(2) The ROA shall not be used as a solicitation method when one or

more of the following conditions exist:

(i) In accordance with the Federal Grant and Cooperative Agreement

Act, Public Law 97-258, the principal purpose of the relationship will

be assistance;

(ii) The purpose of the research is to accelerate the demonstration

of the technical, operational, economic, or commercial feasibility and

environmental acceptability of particular energy technologies, systems,

subsystems, and components that would appropriately be acquired by

Program Opportunity Notices (PONs) in accordance with 48 CFR 917.72;

(iii) The research is required in support of a specific project

area within an energy program which appropriately would be acquired by

Program Research and Development Announcements (PRDAs) in accordance

with 48 CFR 917.73;

(iv) The research requirements can be sufficiently defined to allow

the use of contracting by negotiation in accordance with FAR part 15;

(v) The purpose of the research is the acquisition of goods and

services related to the development of a specific system or hardware

acquisition; or,

(vi) Any funds to be obligated to a resulting contract will be used

to conduct or support a conference or training activity.

requirements can be sufficiently defined to allow

the use of contracting by negotiation in accordance with FAR part 15;

(v) The purpose of the research is the acquisition of goods and

services related to the development of a specific system or hardware

acquisition; or,

(vi) Any funds to be obligated to a resulting contract will be used

to conduct or support a conference or training activity.

(b) The following limitations are applicable to the use of ROAs:

(1) The use of broad agency announcements for the acquisition of

that part of development not related to the development of a specific

system or hardware is authorized by FAR 35.016(a). Notwithstanding that

authorization, ROAs shall be used within DOE only to acquire basic and

applied research.

(2) Proposals shall not be solicited from, and contracts shall not

be awarded to, any specific entity which operates a Government-owned or

-controlled research, development, special production, or testing

establishment, such as DOE's management and operating contractor

facilities, Federally Funded Research and Development Centers chartered

by other agencies, or other such entities. This limitation shall not be

used to preclude the parent organization of the entity operating the

Government-owned or -controlled facility, its subsidiaries, other

divisions, or other related business affiliates from proposing, or

receiving awards, under DOE's ROA solicitations, provided that any

proposed resources (personnel, facilities, and other resources) used in

the management and operation of the Government-owned or -controlled

facility have been approved for use in the ROA effort by the sponsoring

agency.

935.016-8 Selection of proposals.

other

divisions, or other related business affiliates from proposing, or

receiving awards, under DOE's ROA solicitations, provided that any

proposed resources (personnel, facilities, and other resources) used in

the management and operation of the Government-owned or -controlled

facility have been approved for use in the ROA effort by the sponsoring

agency.

935.016-8 Selection of proposals.

(a) After considering the evaluation findings, the importance of

the proposed research to the program objectives, and funds

availability, the Selection Official shall determine whether a specific

proposal warrants selection for negotiation and award of a contract.

The decision of the Selection Official shall be documented in writing

and shall address, as appropriate, such issues as:

(1) The scientific and technical merit of the proposal in relation

to the ROA evaluation criteria;

(2) The qualifications, capabilities, and experience of the

proposed personnel; technical approach; facilities; and where

applicable, cost participation by the offeror (or any combination of

the above);

(3) The importance of the proposed research to the program

objectives;

(4) Which areas of the proposal, whether in whole or in part, have

been selected for funding, and the amount of that funding; and,

(5) Assurances that any other requirements which are imposed by

statute, regulation, or internal directives relating to the specific

research activities and which are properly the responsibility of the

program office have been satisfied.

(b) Absent extenuating circumstances, selection decisions regarding

any individual proposal should be made within six (6) months after

receipt of the proposal. Proposals which have been evaluated may be

accumulated to allow for a consolidated selection decision so long as

not more than six (6) months have passed since the receipt of any of

the proposals so accumulated.

e have been satisfied.

(b) Absent extenuating circumstances, selection decisions regarding

any individual proposal should be made within six (6) months after

receipt of the proposal. Proposals which have been evaluated may be

accumulated to allow for a consolidated selection decision so long as

not more than six (6) months have passed since the receipt of any of

the proposals so accumulated.

(c) The cognizant DOE program official shall notify successful and

unsuccessful offerors of any selection/non-selection decisions. These

notices shall be made in writing promptly after the decision is made,

and shall, at a minimum, state in general terms, the basis for the

determination.

PART 936--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

936.601 through 936.602-4 [Removed]

28. Sections 936.601, 936.602-2, 936.602-3, and 936.602-4 are

removed.

936.603 through 936.606 [Removed]

29. Sections 936.603, 936.605, and 936.606 are removed.

936.72 [Removed]

30. Subpart 936.72 is removed.

31. Part 941 is added at the end of Subchapter F as follows:

PART 941--ACQUISITION OF UTILITY SERVICES

Subpart 941.2--Acquiring Utility Services.

Sec.

941.201-70 DOE Directives.

941.201-71 Use of subcontracts.

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

Subpart 941.2--Acquiring Utility Services

941.201-70 DOE Directives.

Utility services (defined at FAR 41.101) shall be acquired in

accordance with FAR part 41 and DOE Directives in subseries 4540

(Public Services).

941.201-71 Use of subcontracts.

Utility services for the furnishing of electricity, gas (natural or

manufactured), steam, water and/or sewerage at facilities owned or

leased by DOE shall not be acquired under a subcontract arrangement,

except as provided for at 48 CFR 970.0803 or if the prime contract is

with a utility company.

PART 942--CONTRACT ADMINISTRATION

32. Subsection 942.705-1 is revised to read as follows:

942.705-1 Contracting officer determination procedure.

, gas (natural or

manufactured), steam, water and/or sewerage at facilities owned or

leased by DOE shall not be acquired under a subcontract arrangement,

except as provided for at 48 CFR 970.0803 or if the prime contract is

with a utility company.

PART 942--CONTRACT ADMINISTRATION

32. Subsection 942.705-1 is revised to read as follows:

942.705-1 Contracting officer determination procedure.

(a)(3) The Department of Energy shall use the contracting officer

determination procedure for all business units for which it shall be

required to negotiate final indirect cost rates. A list of such

business units is maintained by the Office of Policy, within the

Headquarters procurement organization.

(b)(1) Pursuant to FAR 52.216-7, Allowable Cost and Payment,

contractors shall be requested to submit their final indirect cost rate

proposals reflecting actual cost experience during the covered period

to the cognizant contracting officer responsible for negotiating their

final rates. The DOE negotiating official shall request all needed

audit service in accordance with internal procedures.

33. Subsection 942.705-3 is revised to read as follows:

942.705-3 Educational institutions.

(a)(2) The negotiated rates established for the institutions cited

in OMB circular No. A-88 are distributed to the Cognizant DOE Office

(CDO) assigned lead office responsibility for all DOE indirect cost

matters relating to a particular contractor by the Office of Policy,

within the Headquarters procurement organization.

34. Subsection 942.705-4 is revised to read as follows:

942.705-4 State and local governments.

ates established for the institutions cited

in OMB circular No. A-88 are distributed to the Cognizant DOE Office

(CDO) assigned lead office responsibility for all DOE indirect cost

matters relating to a particular contractor by the Office of Policy,

within the Headquarters procurement organization.

34. Subsection 942.705-4 is revised to read as follows:

942.705-4 State and local governments.

A list of cognizant agencies for State/local government

organizations is periodically published in the Federal Register by the

Office of Management and Budget (OMB). The responsible agencies are

notified of such assignments. The current negotiated rates for State/

local government activities is distributed to each CDO by the Office of

Policy, within the Headquarters procurement organization.

35. Subsection 942.705-5 is revised to read as follows:

942.705-5 Nonprofit organizations other than educational and state

and local governments.

OMB Circular A-122 establishes the rules for assigning cognizant

agencies for the negotiation and approval of indirect cost rates. The

Federal agency with the largest dollar value of awards (contracts plus

federal financial assistance dollars) will be designated as the

cognizant agency. There is no published list of assigned agencies. The

Office of Policy, within the Headquarters procurement organization,

distributes to each CDO the rates established by the cognizant agency.

942.70 [Removed]

36.37. Subpart 942.70 is removed.

PART 945--GOVERNMENT PROPERTY

945.505-5 [Removed]

38. Subsection 945.505-5 is removed.

945.505-14 [Removed]

39. Subsection 945.505-14 is removed.

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

952.214 [Removed]

40. Section 952.214 is removed.

952.215 [Removed]

41. Section 952.215 and subsections 952.215-22 and 952.215-23 are

removed.

42. Subsection 952.233-2 is revised to read as follows:

952.233-2 Service of protest.

As prescribed in 48 CFR 933.106(a), add the following to the end of

the clause at FAR 52.233-2:

emoved.

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

952.214 [Removed]

40. Section 952.214 is removed.

952.215 [Removed]

41. Section 952.215 and subsections 952.215-22 and 952.215-23 are

removed.

42. Subsection 952.233-2 is revised to read as follows:

952.233-2 Service of protest.

As prescribed in 48 CFR 933.106(a), add the following to the end of

the clause at FAR 52.233-2:

(c) Another copy of a protest filed with the General Accounting

Office or the General Services Administration Board of Contract

Appeals shall be furnished to the following address within the time

periods described in paragraph (b) of this clause: U.S. Department

of Energy, Assistant General Counsel for Procurement and Financial

Assistance (GC-61), 1000 Independence Avenue, SW., Washington, DC

20585, Fax: (202) 586-4546.

43. Subsection 952.233-4 is added to read as follows:

952.233-4 Notice of protest file availability.

As prescribed in 933.106(b), insert the following provision:

NOTICE OF PROTEST FILE AVAILABILITY (XXX)

(a) If a protest of this procurement is filed with the General

Accounting Office (GAO) in accordance with 4 CFR part 21, any actual

or prospective offeror may request the Department of Energy to

provide it with reasonable access to the protest file pursuant to

FAR 33.104(a)(3)(ii), implementing section 1065 of Pub.L. 103-355.

Such request must be in writing and addressed to the contracting

officer for this procurement.

curement is filed with the General

Accounting Office (GAO) in accordance with 4 CFR part 21, any actual

or prospective offeror may request the Department of Energy to

provide it with reasonable access to the protest file pursuant to

FAR 33.104(a)(3)(ii), implementing section 1065 of Pub.L. 103-355.

Such request must be in writing and addressed to the contracting

officer for this procurement.

(b) Any offeror who submits information or documents to the

Department for the purpose of competing in this procurement is

hereby notified that information or documents it submits may be

included in the protest file that will be available to actual or

prospective offerors in accordance with the requirements of FAR

33.104(a)(3)(ii). The Department will be required to make such

documents available unless they are exempt from disclosure pursuant

to the Freedom of Information Act. Therefore, offerors should mark

any documents as to which they would assert that an exemption

applies. (See 10 CFR part 1004.)

44. Subsection 952.233-5 is added to read as follows:

952.233-5 Agency protest review.

As prescribed in 48 CFR 933.106(c), insert the following provision:

AGENCY PROTEST REVIEW (XXX)

Protests to the Agency will be decided either at the level of

the Head of the Contracting Activity or at the Headquarters level.

The Department of Energy's agency protest procedures, set forth in

933.103, elaborate on these options and on the availability of a

suspension of a procurement that is protested to the agency. The

Department encourages potential protesters to discuss their concerns

with the contracting officer prior to filing a protest.

952.251-70 [Amended]

45. Subsection 952.251-70 is amended by revising the date of the

clause to read ``(June 1995)''.

PART 971--REVIEW AND APPROVAL OF CONTRACT ACTIONS [REMOVED]

46. Part 971 is removed.

[FR Doc. 96-10757 Filed 5-2-96; 8:45 am]

BILLING CODE 6450-01-P